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Washington Lawyer

Proactive Regulation Is Key to Complaint Dip

From Washington Lawyer, July/August 2015

By Gene Shipp

barcounselProactive Regulation Is Key to Complaint Drop
Bob Hawley, my colleague from California, has famously described a Bar Counsel Office as a fire station. We sit and wait for the bell to go off and then race out to deal with the ethical complaint. We may work with attorneys to improve their skill set after we undertake an investigation into their conduct, but we are a reactive system.

It is fair to start this discussion with the premise that no one goes to law school with the goal of losing his or her license. The second premise is that the discipline system is designed to protect the public from unethical attorneys. The question is, How can we keep the attorney who went to law school for all the right reasons from becoming involved in the discipline system in the first place?

Steve Mark, a former regulator in New South Wales, Australia, is a leader in the emerging area of proactive regulation. He decided to set a goal of reducing complaints. (Simple enough.) Stunningly, he did it. I will not burden you with the whole scheme, but here is the short version. He asked each firm (big, small, or solo) to file an objective self-assessment addressing how the firm intended to handle or prevent common types of client complaints. Failure to file the report could lead to suspension, but the obligation was presented with lots of encouragement and a soft-glove approach.

Lo and behold, everyone had to spend time thinking about how to handle the usual problems that occur between attorneys and their clients. The reports included who was responsible, and that attorney signed off on the plan for the firm. If complaints came in after the plan was reviewed, the attorney responsible was engaged in the conversation while the target of the investigation was handled by the discipline system. Complaints dropped like a rock, approximately by two-thirds! So the rest of the world said, “hmmmm.”[1]

The Nova Scotia Barristers’ Society and the Law Society of Upper Canada are now reviewing their systems with an eye toward adding proactive elements. The ABA Center for Professional Responsibility held a proactive summit with a number of jurisdictions, including the District of Columbia, at the end of May in Denver. We attended to listen and learn.

Now, the D.C. Bar already has a pretty good toolbox for dealing with attorneys. We have Regulation Counsel at the D.C. Bar who wear the white hats. They give free, confidential ethics guidance by phone and in writing. They offer free, confidential alcohol, drug, and mental health counseling. (I read a recent study that said attorneys are number one out of 104 professions for depression. It made me depressed.) The D.C. Bar Practice Management Advisory Service has an excellent free basic training program for new practitioners (or attorneys changing fields). The Bar’s Continuing Legal Education Program (CLE) has wonderful courses in all fields. All these programs often apply to lawyers who may or may not have ethical problems.

The proactive question is, Are we doing enough to get in front of the conduct that causes complaints and discipline? For instance, I have long been an advocate for better law school skills and ethics training. I will never forget asking the local law schools to have one of our staff in each professional responsibility class for one hour. No one accepted. (Offer still stands.)

I don’t know what a proactive regulatory system for the District of Columbia would look like. We have all the data, background, and skill of all the folks in law school education, CLE training, Regulation Counsel staff, prosecutors of discipline cases, and adjudicators of discipline cases. It strikes me that avoiding complaints and protecting the public go hand in hand.

Note
[1] See also Schneyer, “The Case for Proactive Management-based Regulation to Improve Professional Self-Regulation for U.S. Lawyers,” 42 Hofstra L. Rev. 233 (2013); Forney, “Promoting Public Protection Through an ‘Attorney Integrity’ System: Lessons From the Australian Experience With Proactive Regulation of Lawyers,” 23 Professional Lawyer 1 (2015). 

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Pamela A. Crockett. Bar No. 451219. April 28, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Crockett by consent.

In re Arcadio J. Reyes. Bar No. 430007. April 20, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Reyes by consent, effective July 16, 2015.

In re Peter Ibe. Bar No. 481265. May 22, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Ibe by consent.

In re Henri E. Norris. Bar No. 370646. May 12, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Norris by consent. 

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Takisha Brown. Bar No. 472664. April 2, 2015. The D.C. Court of Appeals disbarred Brown. While representing a client in a personal injury matter, Brown violated Rules 1.4(a), 1.4(b), 1.5(c), 1.15(a), former 1.15(b) (now 1.15(c)), and 8.4(c) as well as D.C. Bar R. XI § 19(f), including the intentional misappropriation of settlement funds Brown was obliged to pay her client’s two medical providers.

In re Richard A. Juliano. Bar No. 465761. April 2, 2015. The D.C. Court of Appeals granted Juliano’s petition for reinstatement.

In re Andrew J. Kline. Bar No. 441845. April 9, 2015. While serving as an assistant United States attorney, Kline intentionally failed to disclose information on request of the defense that as a prosecutor he knew or reasonably should have known tended to negate the guilt of the accused, in violation of Rule 3.8. The D.C. Court of Appeals found that “[g]iven the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning Kline would be unwarranted.”

In re William N. Rogers. Bar No. 73221. April 2, 2015. The D.C. Court of Appeals suspended Rogers for 90 days with fitness. Rogers violated D.C. Rules of Professional Conduct 4.2(a) (contact with a represented party) and 8.4(c) (dishonesty) when he met with an elderly woman, without the consent of her counsel, and when he prepared testamentary documents for her that benefitted his client. Rules 4.2(a) and 8.4(c).

Pamela A. Crockett. Bar No. 451219. May 21, 2015. The D.C. Court of Appeals disbarred Crockett by consent, effective immediately.

In re Sean Patrick Gjerde. Bar No. 479588. May 14, 2015. The D.C. Court of Appeals disbarred Gjerde based upon his guilty plea in the United States District Court for the Eastern District of California to conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341, a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a)(2001).

In re Oscar S. Mayers Jr. Bar No. 407619. May 21, 2015. The D.C. Court of Appeals disbarred Mayers and ordered that he pay restitution in the amount of $1,500 with interest at the legal rate as a condition of reinstatement. While representing a client, Mayers violated Rules 1.15(a) and (d) and 1.16(d) by: (1) treating his client’s property as his own; (2) failing to keep adequate records of such property; (3) misappropriating that property when his personal bank account balance fell below the amount held in trust for his client; and (4) failing to return client funds and file materials. Mayers violated Rules 3.3(a)(1) and 8.1(a) in connection with an affidavit he filed pursuant to D.C. Bar R. XI, § 14(g), in which he asserted that he had no clients or client property. Mayers violated D.C. Bar R. XI, § 2(b)(3) and Rules 3.4(c) and 5.5(a) when he failed to comply with an order of the court or the board issued pursuant to D.C. Bar R. XI and represented the client following the court’s order of suspension. Mayers violated Rules 8.4(c) and (d) when he knowingly made a false statement of fact to the court when he filed his false affidavit pursuant to D.C. Bar R. XI, § 14(g). Additionally, during the course of the disciplinary proceeding, Mayers violated Rules 3.4(a) and (c), and 8.4(d) by permitting his computer, which was under subpoena by Bar Counsel, to be destroyed by Geeks on Call.

In re Andrea Merritt-Bagwell. Bar No. 434943. May 14, 2015. The D.C. Court of Appeals disbarred Merritt-Bagwell for reckless misappropriation and misconduct in violation of other rules, and stayed execution of the disbarment pursuant to In re Kersey, 520 A.2d 321, 326-27 (D.C. 1987) with mitigation based upon respondent’s depressive disorder, and placed respondent on three years of monitored probation subject to terms and conditions. This case arises out of respondent’s appointment as the guardian of the estate of a minor. In that role, respondent missed deadlines for filing accounts, missed court appearances, and paid herself legal fees without prior authorization from the Probate Court. Merritt-Bagwell violated the following Rules: 1.15(a) (intentional or reckless misappropriation); 1.1(b) (failure to act with skill and care); 1.3(a) (failure to act zealously and diligently); 1.3(b)(2) (intentionally damaging or prejudicing a client); 1.3(c) (failure to act promptly); 8.4(c) (dishonesty); and 8.4(d) (serious interference with administration of justice).

In re Henri E. Norris. Bar No. 370646. May 28, 2015. The D.C. Court of Appeals disbarred Norris by consent.

In re Lathal Ponder Jr. Bar No. 434951. May 21, 2015. The D.C. Court of Appeals disbarred Ponder, effective in 30 days. This matter consolidated five separate cases. The board found that despite the differences in the underlying claims, Ponder engaged in a similar pattern of misconduct in connection with his representation of all clients involved in this matter. Ponder failed to represent his clients’ interests, lied to them about the status of their respective cases, falsely reported the supposed outcomes of court proceedings and settlement negotiations, fabricated court documents and settlement agreements, and continually led his clients to believe that settlement payments were forthcoming when, in fact, no settlements were ever reached. Ponder violated one or more of the following rules: Rules 1.1(a) and (b) (lacking competence, skill, and care); Rules 1.3(a) and (b)(1)–(2) (failing to provide diligent and zealous representation, intentionally failing to seek client’s lawful objectives, intentionally prejudicing or damaging client); Rules 1.4(a) and (b) (failing to keep client reasonably informed and to explain matters reasonably necessary to permit the client to make informed decisions); Rules 1.5(b) and (c) (failing to provide a written basis of fees and failing to provide a method of calculating a contingent fee); Rule 1.16(d) (failing to surrender papers and property to which the client is entitled); Rules 8.1(a) and (b) (making false statements in a disciplinary matter and knowingly failing to respond to lawful demands for information from Bar Counsel); Rule 8.4(b) (committing criminal acts that reflect adversely on honesty, trustworthiness, or fitness as a lawyer, including fraud and forgery, in violation of D.C. Code §§ 22-3221 and 22-3241, respectively); Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); Rule 8.4(d) (engaging in conduct that seriously interferes with the administration of justice); and D.C. Bar R. XI, § 2(b)(3) (failing to comply with orders of the board and court).   

In re Arcadio J. Reyes. Bar No. 430007. May 14, 2015. The D.C. Court of Appeals disbarred Reyes by consent, effective July 16, 2015.

Reciprocal Matters

In re Charles J. Broida. Bar No. 178954. April 30, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Broida. In Maryland, Broida consented to disbarment and agreed that if a hearing had been held, sufficient evidence would have been presented to sustain charges that he misappropriated money from an estate and fabricated account statements to conceal his misconduct.

In re Oscar J. Estevez. Bar No. 460593. April 30, 2015. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Estevez for 18 months with fitness and compliance with additional terms imposed in Florida, including full restitution to 234 former clients whose matters had been neglected.

In re Thomas W. Felder II. Bar No. 463009. April 30, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Felder. In Maryland, Felder was found to have failed to perform any legal services for his clients after accepting a retainer, ignored his clients’ repeated requests for updates and attempts to terminate his representation, failed to maintain his clients’ funds in trust, abandoned representation of his clients without communication, failed to return unearned fees to one of his clients until after a disciplinary complaint was filed, and assisted the unauthorized practice of law.

In re Larry J. Feldman. Bar No. 460824. April 30, 2015. In a reciprocal matter from the Court of Appeals of Maryland and the United States District Court of the District of Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended Feldman with fitness, nunc pro tunc to March 11, 2014, and the right to apply for reinstatement in five years or when reinstated by the Court of Appeals of Maryland or the United States District Court for the District of Maryland, whichever comes first. In Maryland, Feldman admitted that he disclosed secrets or confidences relating to his client in a criminal matter and that his client’s murder was subsequently orchestrated by the third party to whom Feldman had made those disclosures. Feldman also admitted to engaging in criminal conduct in abetting, use, and solicitation of sexual services amounting to prostitution that were arranged by a client, sometimes in lieu of Feldman’s legal fees.

In re Mark R. Galbraith. Bar No. 475507. April 30, 2015. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and disbarred Galbraith. In consenting to revocation in Virginia, Galbraith acknowledged that he had misappropriated entrusted client funds and that his actions had been dishonest.

In re Michael A. Giacomazza. Bar No. 462435. April 23, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended Giacomazza with fitness and with the right to petition for reinstatement after being reinstated in Maryland, or after five years, whichever occurs first. For purposes of reinstatement, the period of suspension runs from August 8, 2014. In the Joint Petition for Indefinite Suspension by Consent in Maryland, Giacomazza agreed that sufficient evidence could be presented to sustain allegations that he owed $22,654.56 in child support payments and that his conduct violated Maryland Rules of Professional Conduct 8.4(a) and 8.4(d).

In re John M. Green. Bar No. 476592. April 30, 2015. In two consolidated reciprocal matters from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended Green with fitness and the right to apply for reinstatement in five years or when reinstated by Maryland, whichever comes first. In the first matter in Maryland, Green was found to have failed to deposit unearned fees in trust, failed to communicate with a client, charged an unreasonable fee, and failed to respond to disciplinary inquiries. In the second matter, Green stipulated that he had again failed to respond to a disciplinary inquiry involving a different client.

In re Douglas E. Mataconis. Bar No. 449978. April 30, 2015. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Mataconis for nine months. In agreeing to discipline in Virginia, Mataconis stipulated that he had neglected a client’s matter, failed to provide a written fee agreement in a contingency matter, failed to communicate with a client, and failed to respond to a disciplinary inquiry.

In re Chester W. Nosal. Bar No. 167668. April 2, 2015. In a reciprocal matter from Illinois, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Nosal for two years with fitness. Nosal’s violations of the Illinois Rules of Professional Conduct stem from his involvement with Capacitive Deionization Technology Systems, Inc. (CDT), a Texas company. The Illinois Attorney Registration and Disciplinary Commission (Commission) found that an attorney–client relationship existed between Nosal and CDT from 1999 through 2007, and that during this time Nosal engaged in various acts of self-dealing without disclosing conflicts of interest or obtaining informed consent, including acting as a lender for multiple high-interest loans and converting notes given in lieu of outstanding attorney fees to stock in CDT. Additionally, the commission found that Nosal made false statements to the United States District Court for the Northern District of Texas and to the commission regarding the time period in which he represented CDT. Finally, the commission found that Nosal knowingly failed to cooperate with its investigation and ignored a subpoena requiring Nosal to appear before it.

In re Thomas Plimpton. Bar No. 436571. April 30, 2015. In a reciprocal matter from New York and Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Plimpton. In New York, Plimpton was found to have fraudulently converted funds received from clients. Plimpton was also reciprocally disbarred in Maryland.

In re Kenrick A. Small. Bar No. 502463. April 30, 2015. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Small for six months, nunc pro tunc to February 27, 2015. In Massachusetts, Small stipulated that he had failed to disclose assets in a child support matter and that he had given misleading testimony to a tribunal in that child support proceeding.

In re Sean Anthony Varnado. Bar No. 982336. April 30, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and suspended Varnado for 90 days with fitness. In Maryland, Varnado stipulated that he improperly used his attorney trust account, which did not contain any entrusted funds, for the purpose of obtaining unauthorized bank funds.

In re Mark H. Allenbaugh. Bar No. 471455. May 7, 2015. In a reciprocal matter from the United States Court of Appeals for the Fourth Circuit, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Allenbaugh for two years, with reinstatement contingent on a fitness requirement and the conditions imposed in the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit found that after being appointed to represent a client in a criminal appeal, Allenbaugh repeatedly failed to file a brief or appendix, despite repeated orders directing such filing and Allenbaugh’s repeated assurances to the tribunal that his filing was imminent.

In re Mitchell A. Greenberg. Bar No. 436526. May 7, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Greenberg for 30 days, nunc pro tunc to February 2, 2015. In Maryland, Greenberg was found to have improperly divided fees with lawyers not in the same firm, failed to obtain client consent for a joint representation, and engaged in a potential conflict of interest by making unwanted romantic overtures to his client at a time when the client’s husband had agreed to provide testimony favorable to Greenberg’s client.

In re James Meaney III. Bar No. 352872. May 7, 2015. In a reciprocal matter from Tennessee, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Meaney for 11 months and 29 days, with all but 3 months stayed in favor of probation subject to the conditions imposed by the state of Tennessee, and his reinstatement conditioned upon a showing of fitness. In Tennessee, Meaney was found to have repeatedly and knowingly continued to practice law for a number of years after being suspended for his failure to respond to disciplinary complaints, as well as practicing while administratively suspended for failure to pay professional taxes or comply with CLE requirements.

In re Michael C. Worsham. Bar No. 462830. May 7, 2015. In a reciprocal matter from the Court of Appeals of Maryland, the D.C. Court of Appeals imposed reciprocal discipline and disbarred Worsham, nunc pro tunc to May 3, 2014. In Maryland, Worsham was found to have willfully and fraudulently failed to file tax returns or pay income tax over an eight-year period. 

Interim Suspensions Issued by the District of Columbia Court of Appeals
In re M. Adriana Koeck (AKA Adriana Sanford). Bar No. 439928. April 23, 2015. Koeck was suspended by consent, based on her assertion of disability, from the practice of law in the District of Columbia, effective immediately, pursuant to D.C. Bar R. XI § 13 (e).

In re Randy McRae. Bar No. 430494. April 27, 2015. The D.C. Court of Appeals vacated McRae’s September 29, 2014, interim suspension that was based upon his conviction of a serious crime in the Circuit Court for Prince George’s County, Maryland, and remanded the matter to Bar Counsel to investigate this matter and proceed as appropriate under D.C. Bar Rule XI § 8.

In re Layn M. Saint-Louis. Bar No. 457001. April 21, 2015. Saint-Louis was suspended on an interim basis pursuant to D.C. Bar R. XI, § 9(g), pending final action on the Board on Professional Responsibility’s January 30, 2015, recommendation of disbarment.

In re Andrew J. Brauer. Bar No. 497812. May 27, 2015. Brauer was suspended on an interim basis based upon an order from the Grievance Committee chair of the North Carolina State Bar for disability inactive status by consent.

In re Harold J. Pickerstein. Bar No. 435206. May 27, 2015. Pickerstein was suspended on an interim basis based upon discipline imposed in Connecticut.

In re Robert Seguin. Bar No. 938449. May 27, 2015. Seguin was suspended on an interim basis based upon discipline imposed in New Jersey.

In re Mark A. Sgarlata. Bar No. 418557. May 18, 2015. Sgarlata was suspended on an interim basis based upon discipline imposed in Virginia.

In re Herbert J. Tan. Bar No. 496860. May 18, 2015. Tan was suspended on an interim basis based upon discipline imposed in New Jersey. 

Informal Admonitions Issued by the Office Of Bar Counsel
In re Denise J. Baker. Bar No. 493414. March 26, 2015. Bar Counsel issued Baker an informal admonition. While serving as counsel for the District of Columbia in a civil litigation matter before the United States District Court for the District of Columbia, Baker filed a sworn declaration with the court asserting that the signature of a declarant verified the facts contained in an affidavit. After a subsequent investigation, it was discovered that the actual content of the filing, although factually correct and verified by the declarant later, was never reviewed or signed by the declarant prior to Baker filing it with the court. Rule 8.4(d).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted at www.dcattorneydiscipline.org. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit
www.dccourts.gov/internet/opinionlocator.jsf.