Washington Lawyer

Bar Counsel: Epilogue

From Washington Lawyer, June 2007

By Gene Shipp

Illustration by Mick Wiggins At the end of each Bar Counsel column in Washington Lawyer is a list of attorneys who have been disciplined by the D.C. Court of Appeals, the Board on Professional Responsibility, and the Office of Bar Counsel. It also includes recommendations for discipline by the Board on Professional Responsibility. The disciplinary actions taken by the court and the board are broken into original cases and reciprocal cases.

To this list we added a new category last year of attorneys who were incarcerated following their suspension or disbarment. There have been a number of questions regarding this new category, so we thought it might be a good time to talk about what happens after an attorney is suspended or disbarred and continues to practice law or fails to close out his or her practice properly.

The Office of Bar Counsel has been prosecuting contempt proceedings against attorneys for violations of disciplinary orders since the early 1990s. The chart below represents some of the matters we have prosecuted for criminal contempt from 1992 to the present.

We are now better able to monitor attorneys’ conduct postdiscipline with the addition of our full-time investigators. What we have learned is that some attorneys continue to practice law in violation of the court’s order and, more often than not, practice badly. Taking clients’ funds and/or failing to perform any service are common problems. As suspended or disbarred attorneys are not authorized to practice law, our Clients’ Security Fund no longer has jurisdiction and cannot reimburse for thefts of client funds or failure to perform. Our office is, therefore, very aggressive in seeking imprisonment of former attorneys who violate the court’s disciplinary order.

Attorneys who are suspended or disbarred have the additional responsibility of filing an affidavit pursuant to Rule XI, section 14(g), which is meant to protect the public by demonstrating that the attorney has ceased practicing law and has taken steps to ensure that clients’ interests will be protected or that third parties will not be prejudiced by the attorney’s inability to continue the representation. The affidavit must demonstrate that prior to the effective date of the suspension, the attorney had notified clients and opposing parties in all matters, withdrawn from all matters pending before tribunals, and returned property to clients and third parties.

Failure to file a properly sworn section 14(g) affidavit in a timely manner means that although the attorney is suspended from the practice of law, the period of suspension or disbarment does not begin to run for purposes of reinstatement.[1] For example, an attorney who is suspended for 30 days without a fitness requirement cannot and will not be reinstated until 30 days after filing a proper affidavit.

An attorney who is suspended with conditions but not placed on probation must first file the proper affidavit and then complete the conditions and serve the period of suspension before being reinstated. Conditions have included cooperation with Bar Counsel investigations,[2] restitution,[3] and completion of prescribed continuing legal education or other training.[4]

The job for the Office of Bar Counsel does not end with the opinion of the court. Monitoring conduct continues until the attorney is righteous again, or for as long as the office has an interest in his or her postdiscipline conduct.

Notes
[1] In re Aldridge, 873 A.2d 335, 336 (D.C. 2005).
[2] In re Scanlon, 865 A.2d 534 (D.C. 2005).
[3] In re Cater, 887 A.2d 1 (D.C. 2005).
[4] In re Scanlon, 865 A.2d 534 (D.C. 2005).

Name of Respondent Date of Decision Summary of Sentence
Melvin M. Burton August 28, 1992 Three years of unsupervised probation
Robert L. Kay October 28, 1993 Six months; execution suspended except for two weekends in jail
Raymond B. Thompson (Thompson I) December 18, 1995 One hundred twenty days; execution suspended except for 15 days in jail
Raymond B. Thompson (Thompson II)   Bench warrant issued
Richard L. Huber May 13, 1997 Concurrent sentences of 150 days; execution suspended, with 30 days in a halfway house and six months of supervised probation
Sylvia A. Ryan (a.k.a. Anita Webster) May 15, 2005 One hundred twenty days; execution suspended, with 60 days in jail, two years of supervised probation, and 300 hours of community service
Nnamdi Anya November 2, 2005 Two terms of 180 days to run consecutively; execution suspended, with five years of supervised probation concurrently with conditions
Richard A. James
(James I)
September 12, 2002 One hundred eighty days; execution suspended, with five years of supervised probation and $750 fine
Richard A. James
(James II)
December 14, 2006 Probation in James I revoked; 180 days; execution suspended except for 60 days in a halfway house consecutive to James I and restitution of $15,000
Matthew J. Marshall
(Marshall I)
January 13, 2006 One hundred eighty days
Matthew J. Marshall
(Marshall II)
February 15, 2007 One hundred eighty days, with credit for time served

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
In re Michael L. Avery Sr. Bar No. 447083. March 7, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals publicly censure Avery. Avery violated eight disciplinary rules arising out of his representation of a client who suffered injuries in an alleged fall from a gurney in a nearby hospital. Avery failed to provide competent representation to his client; failed to act zealously and with reasonable promptness on his client’s behalf; failed to communicate adequately; failed to handle fee arrangements with his client appropriately; and failed to terminate the representation of his client appropriately. Rules 1.1(a), 1.3(a), 1.3(c), 1.4(a), 1.4(b), 1.5(c), 1.5(e), and 1.16(d).

In re C. Wayne K. Davis. Bar No. 467768. March 19, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Davis. In Missouri, Davis was convicted of the felony of stealing, a crime involving moral turpitude per se, for which D.C. Code § 11-2503(a) mandates disbarment.

Reciprocal Matters
In re Don Aimar. Bar No. 284091. February 15, 2007. In a reciprocal matter from Nevada, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Aimar for six months and one day, with execution of the suspension stayed in favor of a one-year period of probation subject to the terms and conditions imposed by the Nevada court. In Nevada, Aimar entered a conditional guilty plea in which he admitted to violating Nevada Supreme Court rules pertaining to diligence, communication, safekeeping of property, declining or terminating representation, responsibilities regarding nonlawyer assistants, and unauthorized practice of law. Aimar acknowledged that he did not maintain or open a client trust account in which to deposit settlement proceeds in a personal injury matter; instead the settlement check was cashed or deposited into a bank account owned and controlled by a nonlawyer. Thereafter the clients met with the nonlawyer, who gave them a $3,000 check without an accounting of how the settlement funds were disbursed or how the $3,000 was calculated. Aimar admitted that he otherwise failed to communicate directly with the clients during the entire representation. Aimar also failed to notify the lienholders of the settlement and failed to pay them from the settlement proceeds in a timely fashion. Aimar admitted that he failed to maintain a file in his clients’ case or any type of financial records or documentation reflecting sums received or paid out in the clients’ matter. Aimar also stipulated that he failed to pursue the order compromising a minor’s claim and that he abandoned her case without proper notice to the client.

In re Caroline P. Ayres-Fountain. Bar No. 428324. February 5, 2007. In a reciprocal matter from Delaware, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Ayres-Fountain for three years, with the requirement that she demonstrate her fitness to resume the practice of law. The board found that Ayres-Fountain’s misconduct in Delaware arose out of her representation of four separate clients and her failure to meet certain tax obligations. Specifically, Ayres-Fountain falsely represented on five separate certificates of compliance filed with the Delaware Supreme Court that she had timely filed and paid all federal, state, and local tax obligations. In addition, she concealed her failure to meet these tax obligations during an audit by the Delaware Office of Disciplinary Counsel in connection with a prior informal admonition. In addition, she represented a client in a criminal matter in which she was retained to file a motion for postconviction relief, but did not properly file the motion and failed to file a timely notice of appeal. Ayres-Fountain also collected $2,000 from that client, which she deposited in her operating account before the fees were earned. Ayres-Fountain was retained by another client to file a civil action on his behalf, but failed to draft the complaint until a full year after she was retained and did not file the complaint until 11 months thereafter. Ayres-Fountain represented another client in a criminal matter involving a motion for postconviction relief. She waited over two years to file the motion with the court. The motion was denied as procedurally barred, and the Superior Court stated that the filing bordered on “frivolous.”

In re Marc A. Calello. Bar No. 450262. February 23, 2007. In a reciprocal matter from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Calello for three months. The New Jersey discipline was based on Calello’s use of flawed contingent fee agreements and how he settled some clients’ cases without prior notice to the clients through the use of limited powers of attorney authorizing him to settle the cases as he thought were in the clients’ best interests. Calello also failed to provide his clients with written settlement statements prior to the distribution of proceeds. In two instances Calello settled cases on behalf of clients who were deceased, without informing the insurance company that his clients were dead.

In re Richard P. Condon. Bar No. 354076. March 12, 2007. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Condon. The Supreme Court of Florida disbarred Condon for violating 15 disciplinary rules of the Florida Bar involving Condon’s handling of matters for three different clients. Condon’s misconduct included failure to disburse trust funds and overdrawing such funds at various times between March 2002 and January 2004 (dishonesty and misappropriation), negligence in mishandling an immigration removal proceeding in 2003, and negligent mishandling of immigration and criminal matters for a client in 2003.

In re Michael P. Greenwald. Bar No. 242768. February 20, 2007. In a reciprocal matter where the attorney was suspended for 60 days in Illinois, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose substantially different reciprocal discipline and suspend Greenwald for six months. The Supreme Court of Illinois found that Greenwald violated five rules of professional conduct while representing a client in a personal injury matter, including those pertaining to conversion, failure to deliver funds promptly to a client or third party, dishonesty, and conduct prejudicial to the administration of justice, and a separate court rule pertaining to conduct tending to defeat the administration of justice. The most serious misconduct found in Illinois is the equivalent of what would be considered a negligent misappropriation through sloppy bookkeeping under D.C. Rule 1.15(a). The board recommended substantially different discipline because the D.C. Court of Appeals has consistently stated that a suspension of at least six months is the appropriate sanction for negligent misappropriation of entrusted funds.

In re Jodie Grossman. Bar No. 424061. March 12, 2007. In a reciprocal matter from Massachusetts, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose substantially different reciprocal discipline and disbar Grossman. The Supreme Judicial Court for Suffolk County, Massachusetts, indefinitely suspended Grossman for intentionally misusing and converting $1,000 of client funds, failing to safeguard and promptly pay over or deliver funds, and failing to account adequately for the funds when she wrote two checks from her escrow account made payable to cash. Grossman subsequently “submitted fabricated evidence to bar counsel and intentionally misrepresented the condition of the trustee account to [Massachusetts] bar counsel in order to conceal her misappropriation from [Massachusetts] bar counsel, and the estate representatives, heirs, or beneficiaries.”

In re Chirayu A. Patel. Bar No. 460469. March 14, 2007. In a reciprocal matter from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose nonidentical reciprocal discipline and suspend Patel for six months. The Supreme Court of New Jersey reprimanded Patel for negligent misappropriation of client trust funds and failure to comply with record-keeping requirements.

In re Keith A. Rosenberg. Bar No. 215160. March 22, 2007. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and indefinitely suspend Rosenberg, effective immediately, with the right to apply for reinstatement after being reinstated in Maryland or after five years, whichever occurs first. In any reinstatement proceeding, Rosenberg will be required to demonstrate his fitness to resume the practice of law. The Court of Appeals of Maryland indefinitely suspended Rosenberg and entered judgment against him for costs in the amount of $1,200 based on a petition for indefinite suspension by consent that described a pending investigation in Maryland involving Rosenberg’s failure to deposit $10,000 in an escrow account and failure to preserve the funds.

In re Edward A. Slavin Jr. Bar No. 413136. February 23, 2007. In a reciprocal matter from Tennessee, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Slavin. The Supreme Court of Tennessee disbarred Slavin for engaging in misrepresentation and deceit to the courts and his clients; failing to preserve client property; charging excessive fees; violating court orders; demonstrating incompetence and lack of diligence; and abusing the legal process by habitually violating the Tennessee rules of professional conduct with regard to harassment and intimidation of officers of the court and opposing counsel and the filing of abusive, insulting, untrue, and unprofessional statements regarding judges, litigants, and opposing counsel.

In re Claude N. Stuart. Bar No. 428119. March 30, 2007. In a reciprocal matter from New York, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose reciprocal discipline on Stuart in the form of a three-year suspension with a fitness requirement for reinstatement, to be effective immediately, but deemed to commence, for purposes of reinstatement, on the date Stuart filed an affidavit under D.C. Bar Rule XI, section 14(g), as long as within 10 days of this report and recommendation Stuart files a supplement affidavit supplying the missing information. The Supreme Court of the State of New York suspended Stuart from the practice of law for three years, with a requirement that he petition for reinstatement, although Stuart’s appeal from this decision is pending. Stuart, while serving as the prosecutor in a homicide case and faced with a direct inquiry by the court regarding the witness’s whereabouts, falsely stated that he had no knowledge of her whereabouts, despite having previously located and met with the witness at her place of employment less than a week before. Stuart failed to correct his error at trial.

In re Stephen M. Zukoff. Bar No. 365116. March 19, 2007. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical reciprocal discipline and publicly censure Zukoff. The Supreme Court of Florida publicly reprimanded Zukoff, with conditions. Zukoff admitted that he was overzealous in representing clients in a professional malpractice case and a tenant conviction case and filed court documents containing inappropriate comments about defendants. Zukoff further admitted that after filing the legal malpractice complaint, he and his clients handed out copies to several individuals at the courthouse and he created a Web site to post the complaint.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
In re James L. Coffin. Bar No. 389697. February 22, 2007. The D.C. Court of Appeals disbarred Coffin by consent.

In re Laurence A. Elgin. Bar No. 159582. March 8, 2007. The D.C. Court of Appeals suspended Elgin for six months and ordered restitution to the client in the amount of $5,000 plus interest at the legal rate of 6 percent from August 14, 1998, as a condition of reinstatement. While representing a client on issues stemming from her domestic relations matter, Elgin agreed to a flat fee payment of $10,000, and subsequently an additional $10,000, with $4,000 to be paid through the authorized use of his client’s credit card and the remaining $6,000 to be credited as repayment for a loan Elgin had previously procured from his client. Thereafter, Elgin made charges on the credit card in excess of his legal fees, and ultimately the credit card company filed suit against the client for nonpayment of the credit card balance. Elgin failed to consult his client, who was unaware of the lawsuit, and entered into a settlement without advising the client or giving her the opportunity to determine whether her interests were sufficiently protected. The client ultimately settled the matter directly by repaying the credit card company $5,000. Rules 1.2(a), 1.3(b)(2), 1.4(a), 1.4(b), 1.5(b), 1.7(b)(4), 1.8(a), 8.4(c), and 8.4(d).

In Jeffrey E. Gonzalez-Perez. Bar No. 457816. March 1, 2007. The D.C. Court of Appeals suspended Gonzalez-Perez for 90 days for making false statements to a tribunal; engaging in unauthorized practice of law; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that seriously interfered with the administration of justice. Gonzalez-Perez’s misconduct occurred during the course of proceedings in four matters before the U.S. Citizen and Immigration Services, where he entered appearances falsely stating he was a member in good standing of the D.C. Bar. Rules 3.3(a), 5.5(a), 8.4(c), and 8.4(d).

In re Gregory Hawn. Bar No. 489371. March 1, 2007. The D.C. Court of Appeals suspended Hawn for 30 days. Hawn falsified his résumé and altered his law school transcripts in an attempt to obtain legal employment. Rule 8.4(c).

In re Phyllis J. Outlaw. Bar No. 317537. March 1, 2007. The D.C. Court of Appeals suspended Outlaw for 60 days. Outlaw failed to provide competent and diligent representation; failed to communicate; failed to take prompt action to preserve her client’s interests before the expiration of a statute of limitations; and dishonestly concealed the errors from her client. Rules 1.1(a), 1.1(b), 1.3(a), 1.4(a), 1.4(b), and 8.4(c).

In re Salvatore Scanio. Bar No. 435343. March 29, 2007. The D.C. Court of Appeals suspended Scanio for 30 days. Scanio, while pursuing his own personal injury claim arising out of an auto accident, engaged in conduct involving dishonesty when he made a claim to his insurance provider for lost income and lost bonus and subsequently when he falsely told his firm that he had explained to his insurance provider that he had not lost any income. Rule 8.4(c).

Reciprocal Matters
In re Mikre M. Ayele. Bar No. 411658. March 8, 2007. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Ayele for one year and one day, with reinstatement conditioned on satisfying the conditions for reinstatement imposed by the Virginia Rules of Court. The Virginia State Bar Disciplinary Board suspended Ayele for violations of the Virginia rules of professional conduct involving failures to act with reasonable diligence in representing a client, to communicate with a client, and to withdraw from representation of a client.

In re Joseph Nathaniel Baron. Bar No. 238899. March 1, 2007. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Baron. The Florida Supreme Court disbarred Baron for a number of that state’s rules of professional conduct in matters involving two different clients. In one case Baron lied to his client about the status of a case, settled the case without his client’s knowledge, and kept the settlement amount as a fee. In a second case Baron requested a hearing in an administrative appeal, advised his client that he would request a continuance, and failed to request a continuance or attend the hearing, which resulted in a dismissal of the case. Baron never informed his client that the case was dismissed.

In re Thomas J. Coleman III. Bar No. 430126. March 29, 2007. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Coleman for two years, with the requirement that he demonstrate his fitness to resume the practice of law. After Coleman had been transferred to inactive status in Pennsylvania for his failures to file annual registration statements and comply with continuing legal education requirements, the Supreme Court of Pennsylvania suspended Coleman for continuing to hold himself out as an active member of the Pennsylvania Bar and signing pleadings filed in Pennsylvania.

In re Charles F. Daum. Bar No. 952481. March 1, 2007. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and publicly censured Daum. The Circuit Court for Arlington County reprimanded Daum in accord with an agreed disposition in which Daum acknowledged violating Virginia rules of professional conduct pertaining to safekeeping property, escrow reconciliations, declining or terminating representations, and delivery of a former client’s file.

In re Donald A. Hoffman. Bar No. 376484. March 29, 2007. In a reciprocal matter from Louisiana, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and suspended Hoffman for three months, with execution of the suspension stayed in favor of one year’s unsupervised probation, nunc pro tunc to September 9, 2004. The Supreme Court of Louisiana held that Hoffman’s failure to fully disclose the possible effects of a multiple representation had resulted in serious harm to some of his clients.

In re Charles E. McClain Sr. Bar No. 439941. March 15, 2007. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended McClain for 90 days. The Maryland Court of Appeals reprimanded McClain for filing, in bad faith, numerous frivolous pleadings with the intent to delay and harass, and failing to warn his clients that his actions could result in delay, expense, and the imposition of sanctions.

In re Michael Rostoker. Bar No. 389339. March 15, 2007. In a reciprocal matter from the Supreme Judicial Court for Suffolk County, Massachusetts, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Rostoker. Rostoker was convicted in the United States District Court for the District of Northern California of conspiracy, travel with intent to engage in sexual acts with a minor, using facilities of interstate commerce to induce a minor to engage in illegal sexual acts, conspiracy to induce an alien to violate the law, and encouraging an alien to come to the United States.

In re Michael W. Ryan. Bar No. 469430. March 1, 2007. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Ryan for 60 days. The Maryland Court of Appeals suspended Ryan by consent. Ryan acknowledged that if a hearing were held, sufficient evidence could be produced to sustain charges involving negligent commingling, inadequate supervision of nonlawyer staff in personal injury cases, and failure to disburse settlement funds in another matter.

In re Frank D. Winston. Bar No. 97469. February 15, 2007. In a reciprocal matter from California, the D.C. Court of Appeals suspended Winston for five years, with the requirement that he demonstrate his fitness to resume the practice of law. Winston resigned his membership in the California Bar while disciplinary charges were pending against him in that state. Between 1996 and 2003 Winston engaged in numerous instances of misconduct, including failing to act competently; failing to communicate promptly; failing to refund unearned fees; failing to maintain complete records of client funds; engaging in conduct involving moral turpitude, corruption, or dishonesty; and willfully disobeying or violating a court order.

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.