Washington Lawyer

Bar Counsel: Pitfalls in Terminating the Attorney–Client Relationship

From Washington Lawyer, June 2006

By Asma Naeem

barcounsel After suffering a stroke in late 1915 and realizing he was at death’s door, author Henry James exclaimed, “So here it is at last, the distinguished thing!” Although ending relationships with clients will rarely inspire such sentiments, attorneys should aim to terminate the representation—even the rocky, unpleasant, frustrating ones—with professionalism, integrity, and the highest regard for the client’s interests.

Rule 1.16 of the District of Columbia Rules of Professional Conduct delineates the ethical protocol for such “final acts,” devoting separate sections to mandatory and optional withdrawals, instances when an attorney may not withdraw despite good cause for doing so, and measures to ensure the protection of the client’s case.[1] Though this and other rules repeatedly emphasize the protection of the client, case law reveals that many attorneys harm their clients in the process of withdrawal, by revealing embarrassing information about the client, failing to return client files, and failing to return unearned fees.

Rule 1.16(b) states, in pertinent part, “[A] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client.” Amidst the various scenarios discussed under Rule 1.16(b), subsections (3) and (4) permit withdrawal when the client fails to compensate the attorney, or when “vexatious conduct on the part of the client has rendered the representation unreasonably difficult.”[2]

When it comes time for an attorney to prepare the motion for withdrawal for such reasons, however, the attorney should also be mindful of Rule 1.6(b), which prohibits a lawyer from using a client’s confidences or secrets to the client’s disadvantage.[3] As suggested by the comments to both Rule 1.16 and Rule 1.6, an attorney may consider citing the ubiquitous “irreconcilable differences” in the motion to withdraw, rather than divulging pernicious information about the client.

Indeed, the failure to consider the restrictions of Rule 1.6 can result in a “noisy withdrawal,” which occurred in In re Gonzalez[4] when the attorney retained to represent defendants in a case in the Circuit Court of Fairfax, Virginia, was informally admonished for revealing embarrassing information about the client in a motion to withdraw that was mailed to the opposing party. According to the District of Columbia Court of Appeals, “Gonzalez represented that his clients were not paying their bills in a timely manner and that they had failed to cooperate with him in preparing for trial. Gonzalez further alleged that ‘[client] has missed appointments on a number of occasions, failed to timely provide information necessary to the case, and made misrepresentations to her attorneys.’”[5] Rejecting the respondent’s defense that he needed to disclose the secrets because the Fairfax Circuit Court tended to deny motions for withdrawal absent such information, the Court of Appeals agreed with the Board on Professional Responsibility that the attorney could have offered the damaging information in camera or through redacted documents.[6] In other words, the attorney failed to pursue other options that would have reduced the harm incurred by his (former) client.

Difficulties in withdrawals also seem to arise when the attorney transforms the client’s papers and funds into a lien to obtain a benefit that the attorney would not otherwise have received.[7] Rule 1.16(d) discusses the return of client property, stating,

In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.

The rule sets forth the requirements of an attorney in no uncertain terms, yet many attorneys mistakenly and dangerously extend the permissible attorney lien for work product under Rule 1.8(i) to all other documents in the client’s case file.[8]

Consider, for example, In re Arneja,[9] in which the attorney was retained to represent a client in a personal injury matter and worked on the case for approximately two years before the client terminated the representation. In the letter of termination and in subsequent letters over the next seven months, the client and successor counsel asked Arneja to forward the client’s file to the new attorney.[10] Citing his “investment of time and money” in the case, Arneja refused to turn over the case file until remuneration for his services was discussed. Acknowledging that the statute of limitations was near expiration before the respondent turned over the files to successor counsel, the Court of Appeals agreed with the board’s finding that “Arneja’s failure to surrender client files promptly was both obvious and unjustified by his reliance on Rule 1.8(i) . . . [which] precludes reliance on the work product lien if ‘withholding the lawyer’s work product would present a significant risk to the client of irreparable harm.’”[11] To make matters worse, the respondent also failed to return client funds until one and a half years after successor counsel had been retained, resulting in the client’s wages being garnished for outstanding medical bills.

As these cases attest, an attorney’s ethical obligations continue until the end of a representation. Though getting paid is a legitimate business concern for an attorney, there are other considerations, namely, the protection of the client, that loom larger and ultimately have far greater consequences.

Notes
[1] Subsection (a) outlines the three types of scenarios necessitating mandatory withdrawal: (1) if the representation will involve unethical or illegal conduct, see In re Hager, 812 A.2d 904, 921 (D.C. 2002); In re Hunter, 734 A.2d 654 (D.C. 1999) (lawyer was required to withdraw because personal involvement with government witness against criminal client constituted conflict of interest); (2) if the lawyer is not physically or mentally able, see In re Lopes, 770 A.2d 561 (D.C. 2001); and (3) if the attorney is discharged, see In re Roxborough, 775 A.2d 1063 (D.C. 2001) (lawyer failed to withdraw after discharge). Note also that “a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.” D.C. Rules of Prof’l Conduct R. 1.16 cmt. 4. For an example of an interesting case involving Rule 1.16(c), see Banov v. Kennedy, 694 A.2d 850 (D.C. 1997) (holding that trial court exceeded its authority by denying attorney’s request to withdraw after client’s petition in bankruptcy divested her from being a real party in interest).
[2] See Estevez v. Estevez, 680 A.2d 398 (D.C. 1996) (permitted withdrawal due to irreconcilable differences); Crane v. Crane, 657 A.2d 312 (D.C. 1995) (permitted withdrawal when client failed to pay and communicate with attorney).
[3] Rule 1.6(b) defines secrets as “information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” See also comment 3 to Rule 1.16, which states that a court-appointed lawyer’s explanation of irreconcilable differences will be a sufficient basis for the appointing authority to grant withdrawal: “The court may wish an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation.”
[4] 773 A.2d 1026 (D.C. 2001).
[5] Id. at 1027.
[6] Id. at 1031–32.
[7] Liens are discussed in Rule 1.8(i), which states, in pertinent part, “A lawyer may acquire and enforce a lien granted by law to secure the lawyer’s fees or expenses, but a lawyer shall not impose a lien upon any part of a client’s files, except upon the lawyer’s own work product. . . . ” See also D.C. Rules of Prof’l Conduct R. 1.16 cmt. 12 (“[W]here a lawyer has a valid lien covering undisputed amounts of property or money, the lawyer may continue to hold such property or money to the extent permitted by the substantive law governing the lien asserted.”).
[8] See In re Bernstein, 707 A.2d 371 (D.C. 1998) (lawyer’s refusal to release client file promptly until clients signed general release from liability violated Rule 1.16(d)). In In re Hager, 812 A.2d 904 (D.C. 2002), the Court of Appeals held that the respondent violated Rule 1.16(d) by promising the opposing party that he would refuse to give the client her file because the respondent’s conduct “significantly impaired his clients’ ability to pursue their claims after the representation ended, thus working the very hardship the Rule is designed to protect against.” Id. at 920.
[9] 790 A.2d 552 (D.C. 2002).
[10] During this same period, Arneja filed a suit on behalf of the clients who discharged him and another client in United States District Court. For this and other misconduct, the Court of Appeals suspended Arneja for one year.
[11] Id. at 556–57.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Terri Y. Lea. Bar No. 422762. March 3, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Lea for 30 days with a requirement that reinstatement be conditioned upon her providing Bar Counsel with a written response to the disciplinary complaint. Lea failed to comply with a board order and to respond to Bar Counsel’s lawful demand for information, and engaged in conduct that seriously interferes with the administration of justice. The board chair wrote a separate concurring statement. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re John R. Willett. Bar No. 73007. February 6, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Willett by consent.

Reciprocal Matters
In re Patrick E. Bailey. Bar No. 447132. March 13, 2006. In a reciprocal matter from Virginia, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Bailey for three years with fitness. The Circuit Court for the County of Fairfax, Virginia, suspended Bailey for knowingly making false statements of material fact on his character and fitness questionnaire to the Virginia Board of Bar Examiners. Contrary to his answers on the questionnaire, the Circuit Court for the Parish of Kingston, Jamaica, found Bailey guilty of manslaughter; a Marine Corps board of inquiry found that a preponderance of evidence proved allegations against Bailey for misconduct and substandard performance of duty; and Bailey acquired driving convictions for driving at a speed not reasonable or prudent on two occasions, failing to obey a traffic sign, and exceeding the maximum speed by 10 miles per hour.

In re Burman A. Berger. Bar No. 427495. February 27, 2006. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Berger. The Court of Appeals of Maryland disbarred Berger by consent following allegations of ethical misconduct in two cases. In the first case Berger was alleged to have failed to act with reasonable diligence, to keep his two clients reasonably informed about the status of their personal injury claims, and to respond to Bar Counsel’s demand for information regarding the underlying ethical complaint. In the second case Berger was alleged to have failed to keep his client reasonably informed about the status of her legal dispute involving an unfinished home improvement project. In addition, Berger failed to respond to two other ethics complaints alleging lack of diligence and failure to communicate. Berger’s misconduct in Maryland occurred during a period when he was permitted to practice subject to a conditional diversion agreement and then a supplemental diversion agreement arising out of prior misconduct in that state. In its report the board also recommended that an original prosecution of Berger for similar misconduct in one matter be dismissed as moot.

In re Patrick J. Blackburn. Bar No. 420702. February 21, 2006. In a reciprocal matter from Alaska, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Blackburn. The Supreme Court of the State of Alaska disbarred Blackburn for, inter alia, multiple acts of neglect, dishonesty, and improper handling of client funds. Blackburn failed to respond to 17 grievances, 24 fee arbitration petitions, and requests for information by the Alaskan disciplinary authorities.

In re Changhwun Cho. Bar No. 441701. February 24, 2006. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Cho. The Court of Appeals of Maryland disbarred Cho for, inter alia, abandoning his legal practice, intentionally misappropriating funds on three occasions, and committing multiple acts of neglect and failure to communicate with clients.

In re Steven F. Goldman. Bar No. 484050. March 31, 2006. In a reciprocal matter from New York, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical discipline and suspend Goldman for five years with fitness. The Appellate Division of the Supreme Court, First Judicial Department, State of New York, accepted Goldman’s resignation and struck his name from the roll of attorneys and counselors at law in the state of New York. Under the New York court’s rules of practice, Goldman must wait for seven years before he can petition for reinstatement. In the affidavit Goldman submitted to New York’s Departmental Disciplinary Committee, he described the nature of the allegations against him as receiving settlement monies on behalf of four clients (totaling $76,500); withdrawing funds from these settlements without the knowledge and consent of the aforementioned clients; and using the settlement monies for his own purposes before remitting monies to the clients. In addition, Goldman allegedly failed to retain full records for his attorney trust accounts.

In re James A. Granoski. Bar No. 435499. March 9, 2006. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Granoski for 10 days. The Florida discipline imposed on Granoski was the result of a conditional guilty plea for consent judgment wherein Granoski admitted to violations of Florida rules pertaining to misconduct and minor misconduct; concealing evidence; failure to respond to lawful demand for information from a disciplinary authority; violation of bar rules; dishonesty; conduct prejudicial to the administration of justice; and failure to respond in writing to a bar inquiry. The facts to which Granoski stipulated, and that form the basis of the Florida discipline, arose from his negotiation of a settlement on behalf of his clients before the Florida Department of State, Division of Licensing. The board also recommends that the court reject Granoski’s D.C. Bar Rule 14(g) affidavit because it did not comply with the core requirements of the rule.

In re Charles M. James III. Bar No. 436913. February 28, 2006. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar James. The Court of Appeals of Maryland disbarred James for violating several of the Maryland Rules of Professional Conduct, the Maryland Rules, and the Maryland Code, in two separate matters. In the first matter James misappropriated a client’s funds as a result of overpaying another client’s settlement proceeds. In the second matter James, while retained to represent a client in a domestic matter, failed to deposit a retainer or investigative fee in his escrow account; to communicate with his client; and to respond to a bar complaint, despite four letters from the Maryland Bar Counsel. In the second matter the Maryland court found that James’s failure to deposit the unearned retainer or investigative fee into his trust account was dishonest and constituted intentional misappropriation.

In re Cara Lynn Romanzo. Bar No. 468768. February 22, 2006. In a reciprocal matter from Virginia, the Board on Professional Responsibility ordered Bar Counsel to issue Romanzo an informal admonition as substantially different reciprocal discipline. The Virginia State Bar Disciplinary Board suspended Romanzo for 30 days pursuant to an agreed disposition for unauthorized practice of law while administratively suspended for failure to pay bar dues and for failure to complete mandatory continuing legal education credits.

In re Robert L. Roth. Bar No. 357160. March 30, 2006. In a reciprocal matter from Florida based on two orders from the Florida Supreme Court, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Roth, nunc pro tunc to May 13, 2004. The Supreme Court of Florida reprimanded Roth in one matter and disbarred him in another. The board recommends discipline only on the disbarment matter, wherein the Florida court disbarred Roth for entering into a business transaction with a client and knowingly acquiring an interest adverse to the client; preparing an instrument giving the lawyer a testamentary or other gift from a client where the client is not related to the lawyer; failing to maintain a “normal” attorney–client relationship with a client who is disabled or impaired; failing to hold the client’s property in trust, separate from his own (misappropriation); communicating directly with a person whom he knew was represented by another lawyer; violating or attempting to violate the Florida Rules of Professional Conduct; committing criminal acts; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Roth will be required to address the misconduct in both matters should he seek reinstatement.

In re Michael R. Scinto. Bar No. 442806. February 21, 2006. In a reciprocal matter from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical discipline and publicly censure Scinto. The Supreme Court of New Jersey publicly reprimanded Scinto. Scinto, as a partner in a limited liability corporation, filed, or allowed to be filed, documents containing false statements with the Hoboken Rent Control Office in order to obtain illegal rents.

In re David M. Zolensky. Bar No. 379790. February 8, 2006. In a reciprocal matter from Tennessee, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Zolensky for 30 days, to be effective immediately. The Supreme Court of Tennessee suspended Zolensky for 30 days by consent. The Tennessee Bar Counsel filed charges against Zolensky alleging that he had practiced law while suspended as a result of his failure to comply with continuing legal education requirements.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Karen P. Cleaver-Bascombe. Bar No. 458922. February 9, 2006. The D.C. Court of Appeals remanded this matter to the Board on Professional Responsibility for revised findings and a new recommendation. One judge dissented and concluded that Cleaver-Bascombe should be disbarred.

In re Robert L. Rehberger. Bar No. 393234. February 2, 2006. The D.C. Court of Appeals disbarred Rehberger. Rehberger was convicted in the Superior Court of Henry County, Georgia, of felony false imprisonment, misdemeanor sexual battery, and misdemeanor simple battery for actions toward his client. The court held that Rehberger’s convictions for misdemeanor sexual battery and misdemeanor simple battery constitute crimes of moral turpitude on the facts, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

In re Charles W. Schoeneman. Bar No. 112615. February 2, 2006. The D.C. Court of Appeals suspended Schoeneman for four months. Schoeneman was disciplined in connection with his representation of three clients, including his failure to provide his clients with competent representation, to represent his clients with diligence and zeal, to seek the lawful objectives of his clients, to communicate with his clients, and to protect his clients’ interests following the termination of the relationship; and for his engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; engaging in conduct that seriously interfered with the administration of justice; and engaging in the unauthorized practice of law. Rules 1.1(a), 1.3(a), 1.3(b), 1.4(a), 1.16(d), 5.5(a), 8.4(c), and 8.4(d).

In re John R. Willett. Bar No. 73007. March 9, 2006. The D.C. Court of Appeals disbarred Willett by consent.

Reciprocal Matters
In re David M. de Clue. Bar No. 433324. February 23, 2006. In a reciprocal matter from Missouri, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred de Clue. The Supreme Court of Missouri disbarred de Clue following a series of charged ethical violations in that state, including abandoning three clients, failing to cooperate with the disciplinary authorities, practicing law while suspended for failing to pay bar dues, and failing to certify his continuing legal education requirements.

In re Louis J. Demaio. Bar No. 151035. March 2, 2006. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and suspended Demaio for 18 months with fitness. The Maryland Court of Appeals disbarred Demaio after finding that in various court filings he had made “false, spurious and inflammatory representations and allegations” against Chief Judge Joseph Murphy of the Maryland Court of Special Appeals and the clerk of that court.

In re George Edelstein. Bar No. 77966. February 23, 2006. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Edelstein. The United States District Court for the Southern District of New York disbarred Edelstein for conduct relating to a series of loans he made to a client (an FBI informant) while representing him, accepting employment while the client was indebted to him and Edelstein’s judgment may have been affected by his financial interests, and engaging in conduct prejudicial to the administration of justice by participating in an attempted sale of information concerning the whereabouts of another fugitive client to an informant, all in violation of the Code of Professional Responsibility of the New York State Bar Association.

In re Sang K. Park. Bar No. 416551. March 9, 2006. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and suspended Park for six months, nunc pro tunc from December 9, 2004. Park was suspended for six months and received a public reprimand in Virginia for serious misconduct in an immigration matter and a probate matter. Park’s misconduct consisted of, inter alia, various acts of dishonesty, falsely holding himself out as an expert or a specialist in immigration matters, failure to attend promptly to matters undertaken for a client, and undertaking a matter in which he lacked competence.

In re Gary S. Mininsohn. Bar No. 222760. March 23, 2006. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Mininsohn. The Maryland Court of Appeals disbarred Mininsohn for multiple violations of the Maryland Rules of Professional Conduct, including intentional misappropriation of client funds and dishonesty.

In re Dushan S. Zdravkovich. Bar No. 229567. February 2, 2006. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Zdravkovich. The Maryland Court of Appeals disbarred Zdravkovich for intentionally misappropriating client funds and failing to respond to requests for information made by Maryland Bar Counsel.

In re Carl E. Zentz. Bar No. 196568. February 2, 2006. Based on discipline imposed by the Maryland Court of Appeals and the United States District Court for the District of Maryland, the D.C. Court of Appeals imposed functionally identical discipline and publicly censured Zentz. The Maryland court reprimanded Zentz by consent for his violation of the Maryland Rules of Professional Conduct pertaining to competence; scope of representation; meritorious claims and contentions; candor toward tribunals; knowingly disobeying an obligation under the rules of a tribunal; unauthorized practice of law; inducing or assisting another to violate the rules of professional conduct; dishonesty; and conduct prejudicial to the administration of justice. The Maryland District Court reprimanded Zentz for the same conduct and barred him from practice in any bankruptcy court of the United States.

Informal Admonitions Issued by the Office of Bar Counsel
In re J. B. Dorsey. Bar No. 265181. February 6, 2006. Bar Counsel issued Dorsey an informal admonition for failing to provide two clients a writing setting forth the basis or rate of his fee in a timely manner, engaging in a conflict of interest, failing to communicate adequately, rendering incompetent representation, and ultimately providing retainer agreements containing a provision impermissibly broadening the scope of his representation. Rules 1.1(a), 1.2(a), 1.4(b), 1.5(b), 1.7(b)(3), and 1.7(c).

In re John K. Lunsford. Bar No. 88096. January 31, 2006. Bar Counsel issued Lunsford an informal admonition for engaging in a conflict of interest and disclosing client secrets. Lunsford, the former general counsel for an entity, provided legal advice to individuals who were on the other side of a transaction as to which he had previously represented the entity, and represented one of the individuals in pursuit of his claims against the entity in its subsequent bankruptcy matter. Rules 1.6 and 1.9.

In re William M. O’Connell. Bar No. 472441. January 31, 2006. Bar Counsel issued an informal admonition to O’Connell for failure to communicate the basis and rate of his fee to his client in writing, for failure to appear on behalf of the client at a scheduled court date, and for failure to communicate effectively with the client regarding the scope of his representation. The client thought that he had hired O’Connell to represent him in a criminal traffic matter. O’Connell believed he had been hired only for the companion Department of Motor Vehicles administrative procedure. O’Connell did not keep track of the docket in the criminal matter and missed a criminal court date. Rules 1.1(a), 1.3(a), 1.4(a), and 1.5(b).

In re Arcadio J. Reyes. Bar No. 430007. January 30, 2006. Bar Counsel issued Reyes an informal admonition for failing to provide sufficient information to his client concerning an amended retainer agreement; charging fees that were not logically tied to the legal services or expenses provided; and failing to supervise his office manager properly, while representing a client in an immigration matter. Rules 1.5(a), 5.5(b), and 5.5(c)(2).

In re Warner H. Session. Bar No. 391429. December 29, 2005. Bar Counsel issued Session, who served as court-appointed conservator, an informal admonition for failing to maintain complete and accurate records reflecting his handling of the ward’s funds, which delayed the court’s ability to audit his annual account and necessitated referral to the court’s auditor-master to state an account. Disciplinary Rules 1-102(A)(5), 6-101(A)(1)–(2), and 9-103(B)(3).

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.