Washington Lawyer

Bar Counsel's Page: Lessons From the Office of Bar Counsel

From Washington Lawyer, June 2001

By Joyce E. Peters

barcounsel2During calendar year 2000 the Office of Bar Counsel received 1,315 complaints alleging attorney misconduct: 232 complaints alleging misconduct in connection with criminal proceedings and 1,083 complaints dealing with all sorts of other legal matters. We docketed 421 complaints for formal investigation. We also handled 662 complaints as "undocketed" matters in which we conducted only informal inquiries, because, for example, we were not sure if the attorney was a member of our bar, no clear disciplinary violation was alleged, or the matter involved something outside our jurisdiction, such as a fee dispute. We filed 43 petitions seeking formal discipline, issued 42 informal admonitions, processed six cases involving attorneys convicted of criminal offenses, and handled four cases of attorneys seeking reinstatement. We also took action on 26 reciprocal matters arising in other disciplinary jurisdictions.

When these numbers are compared against the total number of members admitted to practice in the D.C. Bar-approximately 74,000-the numbers do not seem large. But to any attorney whose practice, livelihood, and life are touched by one of these actions, a disciplinary complaint is a significant event.

Equally busy were the many volunteers who make the disciplinary system work in the District of Columbia-the Board on Professional Responsibility and its hearing committees. During calendar year 2000 the hearing committees conducted 34 disciplinary hearings and issued 43 reports containing their findings and recommendations. The board handled 101 cases, hearing argument in 16 cases. The board disposed directly of 16 matters and forwarded 85 reports to the District of Columbia Court of Appeals.

The Court of Appeals likewise had a busy year in attorney discipline. The court heard oral argument in 13 cases and issued 107 decisions. These decisions included 34 disbarments, 26 disciplinary suspensions, and one reinstatement. The cases involved a substantial commitment of time by our court.

Simply as statistics, these numbers don’t tell us very much about the kinds of complaints being filed with Bar Counsel. They also do not alert the members of our bar to areas of practice in which they might be more vulnerable to a complaint. Some are intuitively obvious. High-volume practices involving unhappy clients, such as personal injury and criminal law, tend to generate complaints. But does this common-sense approach bear out in the actual numbers? In fact, our data suggests that it does.

The Office of Bar Counsel has kept statistical data on complaints filed during calendar year 2000, and the results are quite interesting. We kept data on the type of law involved in our complaints, the type of misconduct alleged, the year the attorney was admitted to practice in the District of Columbia, the age of the attorney, and the type of law practice in which the attorney engaged. We also cross-tabulated the type of law with the type of misconduct. This raw data, which is anonymous and not linked in any way to the handling of the actual complaints, reveals some interesting things.

Table 1. Type of Law
     
Type of Law Number Percent
Personal injury 70 20
Criminal law 46 13
Civil litigation 43 12
Estate/probate 38 11
Immigration 28 8
Personal conduct 25 7
Real estate 23 7
Equal employment opportunity 23 7
Administrative 16 5
Tax 8 2
Bankruptcy 7 2
Workers’ compensation 7 2
Representing the government 7 2
Communication law 5 1

     First, with respect to the type of law involved in our complaints, the largest single category was personal injury practice, as table 1 indicates. More than 50 percent of our complaints involve the top four categories in this table. This would suggest that if an attorney’s practice involves one of these areas, he or she should be particularly sensitive to client concerns and recognize that client dissatisfaction is a real possibility.

With respect to misconduct, the results are even more revealing. Virtually a third of all complaints to Bar Counsel involve an allegation of neglect.

As table 2 indicates, disbursement irregularities and dishonesty also are involved in a large number of complaints. This is particularly troubling, as the disciplinary system takes a dim view of attorneys who mishandle trust accounts or client property or who engage in dishonesty. These sorts of violations, if proven, may result in lengthy periods of suspension or disbarment.

Table 2. Type of Misconduct
     
Type of Misconduct Number Percent
Neglect 120 33
Disbursement irregularity 70 19
Dishonesty 61 17
Conduct prejudicial 58 16
Return of file 18 5
Conflicts 17 5
Threats of criminal prosecution or Bar Counsel complaints 9 2
Retainer violation 4 1
Breach of confidence 3 1
Failure to supervise 3 1
Failure to withdraw 3 1

     When we did the cross-tabulation of these two areas-mishandling client funds and dishonesty–the results were significant. Table 3 shows the number of cases in which a particular type of practice also involved a particular type of misconduct.

Table 3. Type of Practice Cross-Indexed with Type of Misconduct
   
Personal injury: disbursement irregularities 37
Criminal law: neglect 26
Immigration: neglect 17
Civil litigation: conduct prejudicial 15
Civil litigation: neglect 12
Estate/probate: disbursement irregularity 12
Equal employment opportunity: neglect 11
Real estate: neglect 11
Personal injury: neglect 10

     These results are interesting. Not unexpected is the fact that allegations of neglect are prominent in all areas of practice; that is our biggest category of misconduct cases. What is a matter of concern, however, is that the biggest category of law practice complaint-personal injury-most often involves allegations of mishandling funds. This suggests that the most serious complaints appear to be correlated with that area of practice.

Also not surprising is the data showing the distribution of complaints by type of practice, as in table 4. Solo practitioners with high-volume practices in personal injury, criminal law, estate and probate law, and immigration are engaged in exactly the types of practices that spawn complaints from their clients. Solo practitioners manage not only their actual legal work, but also their calendars, trust accounts, communication and filing systems, and all administrative aspects of their practices, without all of the support systems generally available in larger firms or the government.

Table 4. Type of Practice
     
Type of Practice Number Percent
Solo 167 46
Small firm 101 28
Firm 74 20
Government 20 6

     Also interesting is the data related to the year the attorney was admitted to practice (table 5) and the year of birth of the attorney (table 6). Even lawyers who have been in practice for more than 20 years may face a disciplinary complaint. It isn’t the newest attorneys who are primarily facing Bar Counsel. The data on the attorney’s date of birth suggests that lawyers in their forties and fifties are most likely to have a complaint. What could explain this? Perhaps it could be the result of midlife career changes, movement into new practice areas, failure to keep up with advances in the law, or even overconfidence. Although these reasons are speculative, the complaint data did cluster in these age groups.

Table 5. Year Admitted to Practice
   
1979 28
1978 23
1988 20
1987 19
1985 18
1989 18
1980 17
1995 16
1975 15
1984 15
1992 15
1993 15
Table 6. Date of Birth of Attorney
   
1958 24
1953 23
1955 23
1945 19
1946 16
1947 15
1949 15
1961 15

     So, what can we conclude from this data?

First and most important, it is critical not to neglect client matters. There are lots of situations in which neglect might occur, and it’s important to recognize when one of these situations arises. If the attorney has a high-volume practice, communication with the client is fundamental. Keeping the client informed about court dates, document filings, status of settlement negotiations, the necessity for fee payments, and similar matters is axiomatic. Keeping good records about those communications is also imperative. Particularly for a demanding or difficult client, communication may tend to prevent allegations of neglect.

The "head in the sand" approach most often results in a Bar Counsel complaint; clients do not go away-they go to Bar Counsel. In lieu of avoidance, both the D.C. Bar Lawyer Practice Assistance Program and the American Bar Association Law Practice Management Section can provide information and strategies on how to streamline communications with clients and help with law office management issues. The D.C. Bar’s program, which is free and confidential, can easily be found on the D.C. Bar’s Web site.

Neglect might also occur as the result of crises in the attorney’s practice or personal life. Entering new practice areas, dealing with law firm structure changes, or handling family or personal health issues can put unexpected stress on an attorney’s practice and lead to neglect. Substance abuse and personal financial problems can also lead to neglect. Recognizing these issues early and seeking help are the keys to resolving them. The D.C. Bar may also assist in these matters through its Lawyer Counseling Program.

A second conclusion that can be drawn from Bar Counsel’s data is that an attorney must be scrupulous in dealing with a client’s funds. There simply is no room for errors in handling settlement monies, insurance payments, estate funds, and similar financial matters. Operating funds must be maintained in accounts separate from escrow or trust funds. Records of financial transactions on behalf of clients and client ledgers must be maintained. With the attorney acting as a fiduciary for a client or as the client’s representative, the client deserves to know that his or her funds are safe, secure, and properly handled.

Finally, no one is too old or too experienced to take a continuing legal education (CLE) course in a new or developing practice area or in ethics. We all need to have our batteries recharged, our ideas sharpened, and our analytical skills refined periodically. Taking a CLE course is a good way to do that. (Volunteering to teach a CLE course may even be better, as teaching requires in-depth preparation to explain a subject to others.) The D.C. Bar has a strong CLE program (www.dcbar.org/cle), and Bar Counsel has never seen a complaint from a client who says, "My lawyer knows too much!"

The Office of Bar Counsel plans to continue to collect data about the complaints we receive to look for trends and problem areas and to focus on complaints that result in actual discipline. The data I have shared with you reflects only a snapshot for one year, and this year’s data could be quite different. But if examining this data prevents even one complaint in my office, our collection effort will be worthwhile.

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Ruthann Aron. February 26, 2001. The board recommends that the court disbar Aron on consent, nunc pro tunc to March 31, 1999.

In re John L. Beaman. February 9, 2001. The board recommends that the court suspend Beaman for 30 days for engaging in conduct that seriously interferes with the administration of justice and for failing to comply with board orders. Beaman, who is the subject of three separate disciplinary complaints, failed to respond to Bar Counsel’s inquiries or to comply with board orders compelling his response.

In re Jay M. Berkowitz. March 8, 2001. The board recommends that the court disbar Berkowitz for misappropriation of estate funds, commingling estate funds with his own, and failing to notify his client, the successor personal representative of the estate, of his receipt of funds in which the estate had an interest. Berkowitz received estate funds from the former personal representative, failed to advise the current personal representative of his receipt of the funds or to disclose his receipt of the funds on invoices or in estate inventories, and applied the funds to his legal fees contrary to his agreement with his client and without prior court approval.

In re Anthony J. Corizzi. March 14, 2001. The board recommends that the court disbar Corizzi for intentionally prejudicing clients during the course of the representations, rejecting settlement offers without first consulting the client, knowingly counseling clients to engage in criminal or fraudulent conduct, counseling clients to testify falsely, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in connection with personal injury matters for two clients; and for making false statements of material fact to a tribunal and to a third party and engaging in conduct involving dishonesty in connection with a domestic relations matter. In the personal injury matters, Corizzi instructed clients to perjure themselves in deposition testimony so as to conceal his business relationship with the medical provider that had treated them. In doing so he exposed the clients to criminal prosecution and destroyed their prospects for recovery on their personal injury claims. Thereafter, he voluntarily nonsuited the clients’ cases in order to continue to avoid discovery of the relationship, thereby causing the clients to incur additional filing fees and delaying the resolution of their claims, and made affirmative misrepresentations regarding his conduct in connection with the disciplinary investigation. In the domestic relations matter, Corizzi knowingly misrepresented in court pleadings and statements to opposing counsel and to disciplinary authorities that he had not yet been retained when he alleged that his client committed perjury.

In re George E. Kersey. March 9, 2001. In a reciprocal matter from Massachusetts, the board recommends that the court suspend Kersey for three months, with the requirement that he demonstrate fitness to practice law prior to reinstatement if he has not been summarily reinstated in Massachusetts. The Massachusetts court suspended Kersey for three months for engaging in conduct that seriously interferes with the administration of justice in connection with his own divorce proceeding.

In re John H. McDonald. March 21, 2001. In a reciprocal matter from Delaware, the board recommends that the court publicly censure McDonald. McDonald failed to certify as required by Delaware court rules that he had completed mandatory continuing legal education courses and thereafter failed to respond to inquiries concerning the matter from Delaware disciplinary authorities. The Delaware court issued him a public reprimand, the functional equivalent in this jurisdiction to a public censure, for knowingly disobeying an obligation under the rules of a tribunal and failing to respond to a lawful demand from a disciplinary authority.

In re Rafael A. Prado. March 22, 2001. In a reciprocal matter from New Jersey, the board recommends that the court disbar Prado for misappropriating entrusted funds; failing to promptly deliver client funds, to maintain adequate records of entrusted funds, or to represent clients diligently; and charging an excessive fee. Prado stipulated that he had failed to keep records for his trust account for seven years and that he had misappropriated entrusted funds on three occasions. He inadvertently agreed to have loan payments automatically deducted from his trust account rather than his personal account, thereby invading client funds; in connection with two real estate matters he handled on behalf of clients, in one case he failed to return funds that his client was entitled to receive from the closing and, in a second case, failed to advise his client of an overpayment of closing costs or to return the funds to the client. In the real estate matters, he did not maintain the funds in his trust account, and in the case of all of the misappropriations, he did not entirely replace the funds until after his trust account was audited. The New Jersey court found that Prado’s misappropriation of funds was negligent and suspended him for three months. The board declined to recommend discipline identical to that imposed in New Jersey, concluding instead that the facts support a finding in this jurisdiction of reckless or intentional misappropriation, which warrants disbarment.

In re Claude W. Roxborough. March 12, 2001. The board recommends that the court reinstate Roxborough with conditions. Roxborough was the subject of three separate decisions in which the court suspended him with the requirement that he demonstrate fitness to practice law prior to reinstatement.

In re Theresa M. Squillacote. March 9, 2001. The board recommends that the court disbar Squillacote based upon her conviction in the United States District Court for the Eastern District of Virginia of obtaining national defense information, making a false statement, conspiracy to commit espionage, and attempted espionage, crimes that a majority of the board concluded involve moral turpitude per se.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Ruthann Aron. March 1, 2001. The court disbarred Aron by consent.

In re Neal J. Berger. February 15, 2001. The court granted Berger’s petition for reinstatement and vacated the requirement in its September 16, 1999, decision that he demonstrate fitness to practice law prior to reinstatement. The court originally suspended Berger for two years, nunc pro tunc to November 12, 1997, with the requirement that he demonstrate fitness to practice law prior to reinstatement, based upon a similar sanction imposed in New Jersey. The New Jersey court summarily reinstated Berger on December 21, 1999.

In re Gene G. Blades. February 1, 2001. In a reciprocal matter from Maryland, the court suspended Blades indefinitely, with the requirement that he demonstrate fitness to practice law prior to reinstatement, and with the right to seek reinstatement after he is reinstated in Maryland or after the expiration of five years, whichever occurs first. Blades consented to an indefinite suspension in Maryland for incompetence; committing a criminal act that reflects adversely on his fitness as a lawyer; engaging in conduct involving dishonesty and fraud and conduct prejudicial to the administration of justice; violating the ethical rules; making a false statement of material fact in connection with a disciplinary matter; and making a false statement of material fact to a tribunal. Blades admitted that he had filed forged pleadings, forged affidavits, and a fictitious subpoena.

In re Erroll D. Brown. February 1, 2001. The court denied Brown’s petition for reinstatement and, in connection with a reciprocal matter from Maryland, suspended him for an additional nine months, nunc pro tunc to April 19, 1999. Brown, who was suspended for 30 days on April 9, 1998, with the requirement that he demonstrate fitness to practice law prior to reinstatement, must still satisfy the fitness requirement in the 1998 discipline. In the reciprocal matter from Maryland, where Brown was suspended indefinitely with the right to apply for reinstatement in one year, he failed to represent a client diligently, to provide adequate communication to a client, or to explain a matter sufficiently to permit the client to make informed decisions; assisted another attorney in the unauthorized practice of law; made false or misleading communications about his services on his letterhead; made false statements of material fact to a tribunal; failed to cooperate with the Maryland disciplinary authorities; and engaged in conduct prejudicial to the administration of justice.

In re Richard A. Canatella. March 15, 2001. In a reciprocal matter from California, the court suspended Canatella for 18 months, nunc pro tunc to January 4, 2000, and stayed execution of all but 30 days of the suspension, with the requirement that he demonstrate compliance with the probationary conditions imposed in California prior to reinstatement. The California court suspended him for 18 months, stayed execution of all but 30 days of the suspension, and ordered that he serve 18 months’ probation subject to conditions. Canatella stipulated that he had violated California law by filing 11 frivolous legal matters. Although the provision of the California law that he violated does not have a direct counterpart in District of Columbia law, the court agreed with the Board on Professional Responsibility’s conclusion that his actions would have constituted conduct that seriously interfered with the administration of justice if charges had been filed as an original matter in this jurisdiction.

In re Everette John Domingues. March 22, 2001. In a reciprocal matter from Maryland, the court suspended Domingues for nine months, nunc pro tunc to January 13, 1999, and placed him on probation for two years under the supervision of a practice monitor. Domingues entered into an agreement with Maryland disciplinary authorities while disciplinary charges alleging, among other things, negligent misappropriation, commingling, conduct involving dishonesty, and conduct prejudicial to the administration of justice were pending against him. The Maryland court indefinitely suspended him by consent, with the right to apply for reinstatement after nine months.

In re Mary Ann Bell Kenno. February 1, 2001. In a reciprocal matter from Maryland, the court disbarred Kenno. Kenno consented to disbarment in Maryland while disciplinary complaints alleging misappropriation were pending against her.

In re Edward C. Massagli. March 1, 2001. In a reciprocal matter from Maryland, the court suspended Massagli indefinitely, with the right to seek reinstatement after five years or after he is reinstated in Maryland, whichever occurs first. Massagli must demonstrate fitness to practice law prior to reinstatement, which must be followed by a two-year period of probation under the supervision of a practice monitor and completion of 12 hours of continuing legal education in each of those years. Massagli consented to an indefinite suspension in Maryland while disciplinary charges were pending against him alleging that he failed to provide competent representation, to represent a client diligently, to communicate with the client, to terminate a representation when the representation would result in a violation of the ethical rules, or to refund an unearned fee.

In re Brett E. Murchison-Smith. February 1, 2001. The court suspended Murchison-Smith for six months, with the requirement that she make restitution to an estate prior to reinstatement. Murchison-Smith engaged in conduct that seriously interferes with the administration of justice in failing to comply with a probate court order directing her to repay fees that she had accepted without prior court approval, failed to respond to Bar Counsel’s written inquiries regarding the matter, and failed to comply with the board’s order compelling her response.

In re Kenneth E. Nielsen Jr. March 1, 2001. The court publicly censured Nielsen for engaging in conduct that seriously interferes with the administration of justice. Nielsen failed to respond to Bar Counsel’s request for information or to an order of the board directing him to respond. The Board on Professional Responsibility concluded that public censure, rather than a more severe sanction, was appropriate in this case because of Nielsen’s eventual, albeit untimely, cooperation with the disciplinary process and his lack of prior disciplinary record.

In re James M. Slattery. February 8, 2001. In a reciprocal matter from Maryland, the court suspended Slattery indefinitely, with the right to apply for reinstatement after five years or after reinstatement in Maryland, whichever occurs first. Slattery must demonstrate fitness to practice law prior to reinstatement, which must be followed by a two-year period of probation under the supervision of a practice monitor. Slattery consented to an indefinite suspension in Maryland while disciplinary charges were pending against him charging him with engaging in conduct prejudicial to the administration of justice and failing to represent a client diligently, to communicate with the client, to maintain records of entrusted funds, to account for entrusted funds from real estate settlements, or to cooperate with the Maryland disciplinary authorities.

In re Denise R. Stanley. March 15, 2001. In a reciprocal matter from Maryland, the court suspended Stanley indefinitely, with the requirement that she demonstrate recovery from disability prior to reinstatement. The Maryland court placed Stanley on inactive status by consent, based upon a claim of disability, while disciplinary complaints were pending against her alleging failures to communicate with three clients.

In re Bryant A. Webb. February 8, 2001. In a reciprocal matter from Virginia, the court revoked Webb’s license to practice law, with the right to seek reinstatement, conditioned upon proof of his fitness to practice law, after the expiration of five years or after reinstatement in Virginia, whichever occurs first. Webb petitioned the Virginia court for leave to surrender his license while disciplinary charges were pending against him alleging that, in connection with a divorce matter, he had failed to provide competent representation, to serve a client with the skill and care commensurate with that afforded clients by lawyers in similar matters, to represent a client diligently, to act with reasonable promptness, or to communicate with a client regarding the status of a matter. The Virginia court granted his petition and revoked his license. Under Virginia law, an attorney who resigns while disciplinary charges are pending against him is deemed to have admitted those charges by virtue of the resignation. The resulting revocation of the attorney’s license constitutes discipline for which reciprocal discipline may be imposed in this jurisdiction.

In re Wanda R. Withers. March 22, 2001. The court disbarred Withers for misappropriating funds held in trust to pay a medical provider, commingling entrusted funds with her own, and failing to maintain adequate records of funds held in her client trust account.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.