Washington Lawyer

Bar Counsel: Transition and Tradition

From Washington Lawyer, June 2008

By Gene Shipp

barcounsel

Chief Judge Thomas F. Hogan of the United States District Court for the District of Columbia did a masterful job of blending transition and tradition during his speech in April at the 2008 Judicial and Bar Conference. One could not help but be struck by his observation of the relentless fact of transition, coupled with and contrasted by the bedrock of legal tradition. It happens every day in our courtrooms and in our practice.

Later that day, my reflections turned to the new rules for disciplinary procedure—D.C. Bar Rule XI—adopted by the District of Columbia Court of Appeals on April 3.[1] Our discipline system has just turned 35 years old. We have been through major changes on at least three occasions. In the past 35 years, the court opened up the system to public view, did away with private disciplines, and added public participation as some of the transitions. While the court has the ultimate say in the organization and rules that apply to our discipline, since the beginning, the court’s agent of supervision of the Office of Bar Counsel has been the Board on Professional Responsibility (BPR). While not changing these fundamentals, the court sought to address the delay in discipline, while retaining fairness and openness in disciplinary proceedings.

To that end, the court has made the following changes:

1. Negotiated Disposition.[2] The tradition in the District of Columbia has been that each prosecution by Bar Counsel must be presented and tried before a Hearing Committee, reviewed by the BPR, and finally taken to the court for action, except for a very small number of cases that ended after BPR order. The new rule permits negotiated dispositions by the parties. These matters will be presented with written pleadings and an appearance before the Hearing Committee, which fully is empowered to review the matter. These documents of the agreement are made public, along with the hearing on the disposition. The documents and record of the proceeding before the Hearing Committee, as well as the report of the Hearing Committee, will proceed to the court for final review.

This will be a major change in the way matters have been handled. It is our thought at this early stage that negotiated dispositions will require a thorough investigation by Bar Counsel, the unambiguous cooperation of the attorney, fair treatment of the complainant and the attorney, some reflection or insight into the cause of the misconduct, and an effort to address that cause.

2. Reciprocal Cases.[3] The tradition has been for the court to refer each reciprocal matter to the BPR for report and recommendation. The new system will involve a show cause order where the attorney (or Bar Counsel) must demonstrate why the identical discipline should not be imposed in those reciprocal cases that involve suspensions or disbarments. If the court is satisfied that the identical or nonidentical discipline should be imposed, the matter will be disposed of by decision of the court. If the discipline taken by the sister state involves nonsuspensory discipline, the court will order publication of the fact of the discipline, which will conclude the matter.

3. Temporary Suspension Pending Disciplinary Action.[4] The tradition of the disciplinary system was to temporarily suspend an attorney during an investigation or prosecution to prevent the attorney from causing greater public harm. One of the disciplinary system’s ongoing problems, unfortunately, is that some complaints go unanswered by the attorney even though he or she is required to cooperate with Bar Counsel. This causes delays and frustrates Bar Counsel investigators.

To address this problem, the court added a new category of temporary suspension. If the attorney fails to respond to a Bar Counsel inquiry and a BPR order to respond, the court may order that the attorney be suspended until the attorney responds. This type of suspension must be based upon serious allegations of misconduct, which is defined as fraud, dishonesty, misappropriation, commingling, overdraft of trust accounts, criminal conduct other than criminal contempt, or instances of neglect that establish a pattern of misconduct.

4. Suspensions Pending Final Action of Court After BPR Report.[5] The tradition had been that no suspension or disbarment is started until after court review. Now, recommendations by the BPR for disbarment, suspension with fitness, or suspension of one year or more will trigger a show cause order of the court as to why the disbarment or suspension should not begin immediately. Attorneys will have the burden of demonstrating a substantial likelihood of success in their exceptions to avoid serving their sanction while the matter is pending before the court.

5. Reinstatements.[6] Reinstatements from sanctions involving fitness conditions or disbarment took anywhere from 18 months to three years before the court had an opportunity to decide the matter. There was a natural reluctance to impose fitness when it took so long to complete a reinstatement matter.

The new process will require Bar Counsel to investigate the bona fides of the reinstatement application and the moral character of the attorney, and then file a report in the court as to the results if Bar Counsel does not oppose the reinstatement application. If the court agrees, the attorney’s license would be restored without further proceedings. If the matter is contested, the petition for reinstatement will be assigned to the Hearing Committee for a full hearing and a report by the committee within 60 days of the close of the hearing. The court will then entertain the matter in the normal course.

6. Default for Failing to Answer a Petition (Charging Document).[7] The tradition was that Bar Counsel had the burden of ex parte proof, even in the face of an attorney’s failure to answer the petition. This burden will not change under this new rule. While Bar Counsel can move for a default under these conditions, a respondent may move to set aside the default for good cause shown within 30 days of the report and recommendation of the Hearing Committee. After that period, the BPR may vacate the default, only upon a showing of manifest injustice.

7. Confidential Information.[8] Bar Counsel may ask permission of the BPR chair or the chair’s designee to release confidential information concerning an investigation, whether pending or closed. This permits wider cooperation between Bar Counsel and other disciplinary agencies or law enforcement.

8. Diversion. Diversion is broadened to include minor traffic offenses and remove the restriction that prohibited diverting attorneys for conduct, which had the potential to cause harm to their client.[9]

9. Due Dates on Hearing Committee Reports. Hearing Committee reports are due 120 days after the close of the hearing instead of the old requirement of 60 days.[10]

These tools, which will take effect August 1, 2008, will permit the Office of Bar Counsel to continue the reduction of its backlog while focusing more resources on the protection of the public and integrity of the court and the Bar. Our tradition of ethics enforcement must remain as open and fair as we transition to new systems.

Notes
[1] Order No. M-230-07 (D.C. Apr. 3, 2008)
[2] D.C. Bar R. XI, § 12.1
[3] D.C. Bar R. XI, § 11
[4] D.C. Bar R. XI, § 3(c)
[5] D.C. Bar R. XI, § 9(g)
[6] D.C. Bar R. XI, § 16
[7] D.C. Bar R. XI, § 8(f)
[8] D.C. Bar R. XI, § 17
[9] D.C. Bar R. XI, § 8.1
[10] D.C. Bar R. XI, § 9(a)

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Felix B. Otchere. February 15, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals reinstate Otchere subject to conditions.

In re John W. Stewart Jr. Bar No. 464842. March 11, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Stewart, and that as a condition of reinstatement, he be required to pay restitution to his former clients or the Clients’ Security Fund to the extent it has reimbursed his clients in the amount of $36,930 with interest at the legal rate. This matter was based on disciplinary complaints filed by 16 clients who purchased real property at District of Columbia tax foreclosure sales and retained Stewart to file the required civil complaints to foreclose the right of redemption on those properties. In addition, the Finance Office of the Superior Court of the District of Columbia referred a matter to the Office of Bar Counsel pertaining to Stewart providing checks for filing fees that were returned for insufficient funds that were never made good. The board upheld the Hearing Committee’s findings below that Stewart failed to provide competent representation; failed to communicate with his clients; and engaged in conduct involving criminal fraud and theft, dishonesty, and misappropriation of advances paid to cover fees for filings, publications, and title searches. Stewart’s clients lost more than $47,500 in deposits paid for the purchase of tax sale properties, and the fees and cost advances paid to Stewart for work he never performed. Rules 1.1(a), 1.1(b), 1.2(a), 1.3(a), 1.3(b), 1.3(c), 1.4(a), 1.4(b), 1.5(b), 1.15(a), 1.15(d), 1.16(d), 8.1(b), 8.4(b), 8.4(c), and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

Reciprocal Matters
In re Michael J. Beattie. Bar No. 450873. March 3, 2008. 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 Beattie for six months, followed by a three-year period of unsupervised probation. Beattie’s Virginia discipline stemmed from two complaints relating to his representation of one client who had retained him in July 2003 in connection with her sex discrimination case in the United States District Court for the Eastern District of Virginia. Beattie failed to inform this client that he had been indefinitely suspended from the federal court in August 2003 in an unrelated matter and failed to communicate with the client. Beattie hired a part-time attorney to prepare and sign pleadings filed with the federal court, but deadlines were missed, pleadings were filed out of time, and no attorney showed up for several pretrial conferences. The client’s case ultimately was dismissed on summary judgment. In addition, Beattie had approached another Virginia lawyer, stating that his firm was “short-staffed” and asked the lawyer to “help him out at the deposition” because Beattie was “not licensed” in the federal court. The Circuit Court of Fairfax County suspended Beattie based on an agreed upon disposition proposed jointly by the Virginia State Bar and Beattie. Beattie was found to have violated rules relating to competence, diligence, communication with his client, fairness to opposing party and counsel, truthfulness in statements to others, improper supervision of a subordinate lawyer, and dishonesty.

In re Robert P. Hilson. Bar No. 366947. February 15, 2008. 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 Hilson. The Commonwealth of Massachusetts Supreme Judicial Court for Suffolk County indefinitely suspended Hilson for knowingly and dishonestly misappropriating entrusted funds he was required to hold during the course of a representation, disclosing client confidences, and knowingly giving false testimony to conceal the misconduct.

In re Robert L. Kline III. Bar No. 465770. March 17, 2008. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose the identical reciprocal discipline of disbarment. The Maryland Court of Appeals disbarred Kline by Joint Petition for Disbarment by Consent. In the joint petition, Kline acknowledged if a hearing were held, sufficient evidence could be produced to sustain findings of his misconduct while representing an insurance company in a collection matter. Specifically, when the insurance company corporate representative and custodian of records was not available to testify at a hearing, Kline called an employee of his firm to the witness stand to falsely testify she was the insurance company employee scheduled to testify. In addition, in a separate matter for the same client, Kline, or someone acting at his direction, forged the signatures of corporate representatives on affidavits supporting a complaint filed in the District Court of Maryland, Montgomery County.

In re Daniel S. Wittenberg. Bar No. 441858. February 29, 2008. In a reciprocal matter from Colorado, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose the identical reciprocal discipline of a 90-day suspension stayed in favor of two years’ probation with the conditions imposed in Colorado. The Supreme Court of Colorado suspended Wittenberg for 90 days and stayed the entire suspension in favor of two years’ probation, with the conditions that Wittenberg abstain from engaging in further misconduct, successfully pass the Colorado ethics school, and continue counseling with a therapist of his choice. The Colorado court based its findings upon a stipulation, agreement, and affidavit containing Wittenberg’s conditional admission of misconduct. In the stipulation, Wittenberg admitted that in 2006, he traveled from Denver to Georgia to attend a college football game with a colleague. Wittenberg had an existing client at the same locale, but he did not contact or visit the client during his trip. When Wittenberg returned to Denver, he submitted a travel and expense report to his firm for $1,031.49 in expenses he incurred on the trip to be billed to the client. The firm promptly reimbursed Wittenberg for the travel expenses. Subsequently, as a result of an overpayment by the client, the firm’s billing department asked Wittenberg whether the overpayment should be applied to his travel expenses. Wittenberg immediately informed the billing department that it should not and, on his own initiative, Wittenberg reimbursed the firm to cover the travel expenses he had improperly attributed to the client. The client was never billed for the expenses for which Wittenberg was improperly reimbursed by his firm. Wittenberg reported to the firm’s managing partner and risk management officer he had presented a false expense reimbursement statement to the firm, and Wittenberg self-reported his conduct to the Office of Attorney Regulation Counsel.

In re Scott Lawrence Wiss. Bar No. 437473. March 28, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals find that Wiss’ misdemeanor conviction of insurance fraud in the fifth degree did not involve moral turpitude, and that based on his sixth-month suspension in New York, it impose a reciprocal discipline of a six-month suspension, to be effective, nunc pro tunc, from April 3, 2006, when Wiss filed a fully compliant section 14(g) affidavit. In October 2002 Wiss pleaded guilty to a charge of insurance fraud in the fifth degree, a Class A misdemeanor (N.Y. Penal Law § 176.10), in full satisfaction of the three-count indictment that had been brought by the Queens district attorney in the Supreme Court of New York. Wiss wrongfully authorized a paralegal to notarize documents with Wiss’ notary stamp, even though neither the notarizing paralegal nor Wiss had witnessed the client’s signature. In addition to the false notarization, Wiss admitted, and the New York Hearing Panel found, two other instances of misconduct related to the same matter. Two members of the board filed individual concurring statements.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re W. Eric Cloud. Bar No. 303008. March 13, 2008. The D.C. Court of Appeals granted a rehearing of its December 28, 2007, decision, and entered an order amending the opinion and deleting the section in which it had concluded that Cloud did not also fail to maintain required financial records. The court determined that in light of its order disbarring Cloud for reckless misappropriation, it need not decide whether his failure to maintain required financial records constituted a separate disciplinary violation.

In re Mark H. Dickson. Bar No. 434898. February 28, 2008. The D.C. Court of Appeals disbarred Dickson by consent, effective immediately.

In re I. Lewis Libby Jr. Bar No. 950758. March 20, 2008. The D.C. Court of Appeals disbarred Libby, who had been convicted of offenses inherently involving moral turpitude for which disbarment is mandatory under D.C. Code § 11-2503(a). Libby was found guilty after a jury trial in the United States District Court for the District of Columbia of the following felony offenses: one count of obstruction of justice (18 U.S.C. § 1503), one count of making false statements to the Federal Bureau of Investigation (18 U.S.C. § 1001(a)(2)), and two counts of perjury (18 U.S.C. § 1623).

In re David F. Luvara. Bar No. 371001. February 7, 2008. The D.C. Court of Appeals disbarred Luvara for committing a crime involving moral turpitude, as required by D.C. Code § 11-2503(a) (2001). Luvara was convicted in the Court of Common Pleas of Philadelphia of one count of conspiracy (a felony), one count of intimidation of a witness (a felony), and one count of obstructing the administration of law or other government function (a misdemeanor).

In re Oscar S. Mayers. Bar No. 407619. March 20, 2008. The D.C. Court of Appeals suspended Mayers for 18 months, effective immediately. Mayers violated rules pertaining to making a false statement of material fact to a tribunal; altering evidence; falsifying evidence; violating the rules through the acts of another; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that seriously interferes with the administration of justice. Mayers’ misconduct occurred during the course of a child- support proceeding with his former wife where she claimed violations of a prior order and arrears. The court concluded there were sufficient mitigating factors to warrant a reduction in the suspension period. Rules 3.3(a)(1), 3.4(a), 3.4(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

In re Faith D. Ruderfer. Bar No. 379731. February 14, 2008. The D.C. Court of Appeals disbarred Ruderfer by consent, effective immediately.

In re Curtis L. Solomon. Bar No. 953596. March 27, 2008. The D.C. Court of Appeals suspended Solomon for 120 days beginning immediately upon the termination of his existing 1991 suspension. Further, the court conditioned reinstatement on Solomon’s full compliance with Bar Counsel’s outstanding requests for information and proof of fitness. Solomon failed to respond to repeated inquiries from Bar Counsel and the Board on Professional Responsibility regarding two ethical complaints. Rules 8.1(b) and 8.4(d) of the District of Columbia Rules of Professional Conduct and D.C. Bar R. XI, § 2 (b)(3).

Reciprocal Matters
In re Richard J. Dobbyn. Bar No. 432609. March 13, 2008. In three reciprocal matters consolidated from Texas, the D.C. Court Appeals disbarred Dobbyn. In Texas, Dobbyn was twice suspended on consent for misconduct including neglect; failure to communicate; conduct involving dishonesty, fraud, deceit, or misrepresentation; and violation of rules governing safekeeping of property. Dobbyn subsequently was disbarred by default in Texas for misconduct including misappropriation of entrusted funds, neglect of client matters, failing to inform a client of deposition and court dates, failing to appear at court hearings, purporting to enter into a settlement obliging his client to pay $198,000 without client authority and without informing the client of the settlement offer, failing to deliver client files after representation had ended, misrepresenting the status of a case on multiple occasions, and failing to inform a client of the dismissal of her case.

In re Edwin G. Drake. Bar No. 434136. March 20, 2008. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Drake. The Florida Supreme Court disbarred Drake for 26 violations of the Florida disciplinary rules in the course of representing six clients, including massive misappropriation of client funds, commingling of personal funds with client trust accounts, and abandonment of his practice.

In re Lester W. Firstenberger. Bar No. 427806. March 13, 2008. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Firstenberger for six months and one day, nunc pro tunc to July 19, 2007, subject to the conditions imposed in Massachusetts. The misconduct that served as the basis for the discipline imposed by the Supreme Judicial Court for Suffolk County, Massachusetts, concerned Firstenberger’s failure to record a mortgage on his home that he executed with his employer, a mortgage lender. Firstenberger violated Massachusetts rules pertaining to dishonesty and conduct adversely reflecting on fitness to practice law.

In re Robert L. Gailliard. Bar No. 311589. March 27, 2008. In a reciprocal matter from South Carolina, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Gailliard for three years with fitness. The Supreme Court of South Carolina suspended Gailliard from the practice of law indefinitely, stating he would be eligible for reinstatement only after completion of his probation, imposed as part of the criminal sentence. The incident leading to Gailliard’s conviction involved striking his teenage son with a truck.

In re W. Bradney Griffin. Bar No. 459202. March 27, 2008. In a reciprocal matter from Vermont, the D.C. Court of Appeals suspended Griffin for 30 days, to be followed by 90 days of probation subject to the conditions imposed by the Vermont Professional Responsibility Board, to run nunc pro tunc from July 31, 2007. The Vermont Professional Responsibility Board suspended Griffin for failing to cooperate with disciplinary counsel.

In re John R. Hallal. Bar No. 444398. March 27, 2008. After remand to the Board on Professional Responsibility in a reciprocal matter, the D.C. Court of Appeals suspended Hallal five years, nunc pro tunc from June 23, 2003, with reinstatement in this jurisdiction conditioned on proof of fitness to practice. Hallal was indefinitely suspended in Massachusetts for improperly billing clients for his personal expenses over a number of years.

In re Walter B. Lebowitz. Bar No. 489693. March 13, 2008. In a reciprocal matter from California, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Lebowitz for five years with fitness. In addition, for purposes of reinstatement, Lebowitz’s suspension shall commence upon his full compliance with D.C. Bar Rule XI, § 14(g) and upon providing a candid and satisfactory explanation of the contradictions between his representations of April 4, 2006, and April 21, 2006. The Supreme Court of California accepted Lebowitz’s resignation, with charges pending, from the State Bar of California. The charges pending at the time Lebowitz submitted his resignation from the California Bar were entirely based upon his admissions of misconduct in an earlier Florida case. The admitted misconduct consisted of two instances, during the period from November 2000 to March 2004, of Lebowitz practicing law in Florida despite the Florida Supreme Court’s acceptance, on September 14, 1989, of his petition for resignation from the Florida Bar without leave to reapply.

In re Hillard J. Quint. Bar No. 427926. March 20, 2008. In a reciprocal matter from Georgia, the D.C. Court of Appeals imposed functionally identical discipline and disbarred Quint. The Supreme Court of Georgia accepted the voluntary surrender of Quint’s law license, which both the Georgia court and Quint acknowledged was tantamount to disbarment. The Georgia court found that disbarment was the appropriate sanction given Quint’s serious misrepresentations and misappropriations of client funds in two cases.

In re Robert A. Sapero. Bar No. 186775. February 14, 2008. In a reciprocal matter from Maryland, the D.C. Court imposed functionally equivalent reciprocal discipline and publicly censured Sapero. The Court of Appeals of Maryland publicly reprimanded Sapero for his failure to provide a settlement sheet to his clients in a personal injury action, to properly manage his trust account and consequent commingling of his own funds with those of his clients, and to respond to a written request for information from Maryland Bar Counsel.

In re Claude N. Stuart. Bar No. 428119. February 7, 2008. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Stuart for three years with fitness. The Appellate Division of the New York Supreme Court suspended Stuart for falsely stating, when faced with a direct inquiry by the court before trial, that he did not know a witness’ whereabouts despite having located and met with the witness at her place of employment the previous week. Stuart failed to correct the misinformation at trial, and as a result, the case had to be retried. One judge dissented with regard to sanction, stating that prosecutorial misconduct of this nature should result in a more serious sanction, possibly disbarment. Another judge concurred to express agreement with the dissent but joined the majority opinion because of the deference the court affords to the sanction imposed in the original jurisdiction.

Informal Admonitions Issued by the Office of Bar Counsel
In re Morris R. Battino. Bar No. 371237. February 26, 2008. Bar Counsel issued Battino an informal admonition for engaging in threatening, disruptive, and intimidating behavior during an administrative hearing before the Office of Administrative Hearings. Rules 3.5(d) and 8.4(d).

In re John O. Iweanoge. Bar No. 439913. January 25, 2008. Bar Counsel issued Iweanoge an informal admonition for failing to communicate with clients, failing to determine the status of the matter or actively pursue his clients’ claim for two years, and failing to obtain the consent of his clients in writing to split his fees while he was retained to represent two clients in a personal injury matter. Maryland Rules 1.1, 1.3, 1.4(a), 1.4(b), and 1.5(e) as made applicable through D.C. Bar Rule 8.5(b).

In re Squire Padgett. Bar No. 206128. February 8, 2008. Bar Counsel issued Padgett an informal admonition for failing to communicate the rate or basis of a fee in writing. Rule 1.5(b).
In re Steven G. Polin. Bar No. 439234. January 25, 2008. Bar Counsel issued Polin an informal admonition for conduct pertaining to two separate matters. In the first matter while representing a client in a civil matter in federal court, Polin failed to communicate adequately and did not exercise sufficient diligence and zeal at the end of the case. In the second matter while representing a client in a criminal matter in D.C. Superior Court, Polin failed to communicate adequately with his client and failed to file a motion to reconsider the client’s sentence when he had told the court and the client that he would do so. Rules 1.3(a), 1.3(c), and 1.4(a) and (b).

In re K. Lawson Wellington. Bar No. 457273. January 25, 2008. Bar Counsel issued Wellington an informal admonition for failing to communicate or file a bond review motion for a client. Rules 1.1(a), 1.1(b), 1.3(a), and 1.4.

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 on the D.C. Bar Web site at www.dcbar.org/discipline/reports.html. 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 mid-1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/ opinions_mojs.jsp.