Washington Lawyer

Bar Counsel: Weathering the Downturn

From Washington Lawyer, June 2009

By Bill Ross and Joe Perry

Illustration by Mick Wiggins

The New York Times recently reported that even in this troubled economic climate, many individuals are continuing to litigate—the only difference now, however, is that they are proceeding pro se.[1] Although many lawyers must adjust to these and other tough realities over the coming months, they must also remain wary of potential ethical pitfalls as they change the way they do business in today’s economy.

Here, the Office of Bar Counsel addresses a few hypothetical situations and the types of attorneys who might be especially tested in these trying times:

1. Mid-Level Associate. The former big firm, mid-level associate might still have a window office, but the only view may be of his own backyard. Gone will be all the standard accoutrements of firm life. For example, without an obliging legion of support staffers or the money to hire help, letters that were once sent automatically may begin piling up under outdated legal resources, while telephone calls go unanswered or unreturned. Our former mid-level associate also will be faced with the new stresses of actively seeking out clients and managing trust accounts. In this scenario, a lack of good office management skills can quickly ripen into a failure to communicate with clients, outright neglect, or the commingling and misappropriation of client funds. When this happens, “I’ve never done this before” or “I didn’t know the rules” will not be acceptable excuses in the eyes of this disciplinary system.[2]

2. The Firm. The law firm that our mid-level associate left behind likely will encounter its own share of dilemmas as well. Every time the big guns have merged and reorganized—getting closer and closer to forming that giant corporate legal machine that will one day devour us all—issues involving conflicts of interest have increased exponentially, too. Now, in the face of tough economic times, firms may be reluctant to turn away business, and, instead, may casually begin throwing around the phrase: “C’mon, are we really conflicted out of this representation?” Such judgments are inevitably made with at least one eye (and hopefully only one eye) toward maintaining profits, but in this economic environment, as with any other, it will be the disciplinary system that makes the final judgment.

3. The Graduate. The recent law school graduate may face challenges, too. In boom times, his primary goal would have been learning how to form a complete sentence without citing a legal case—so that he could properly socialize with the outside world, of course. However, now, the market is dry, and his applications are being ignored while offers from big firms are being delayed or rescinded. In contrast, the United States government is not ignoring his mountain of student loan debt. Our graduate may feel compelled to hang out his own shingle, at least until he can find a steady employer. This freedom is one of the great privileges associated with obtaining a law license, but attorneys need more than a framed piece of paper to demonstrate competence. Our graduate will be expected to have the knowledge required to practice in any field he chooses to enter, and he will further be expected to properly apply that knowledge in every case he handles.[3] A law license alone will not entitle him to practice in a field where he is not competent, no matter how empty his wallet might be.

4. The Veteran Solo Practitioner. Finally, even the veteran solo practitioner has cause for concern. With her income dwindling, she may be tempted to maintain her current standard of living by taking on marginal cases or difficult clients she might have previously ignored. Soon she may find herself trapped in a case that cannot be won, spending money she does not have, and, depending on the circumstances, unable to withdraw her representation. Even if she can withdraw, she must be careful not to prejudice or disparage her client.[4] In the end, she may find that she has bought two headaches for the price of one: 1) the representation of a difficult client to the bitter (and likely anticlimatic) end, and 2) a prosecution by Bar Counsel.

Admittedly, the economic downturn is not bad news for everyone. A jump in bankruptcies, however troubling for our nation’s business sector, will certainly create an abundance of legal work. But even the lucky attorneys must constantly remind themselves that desperate times for clients often create opportunities for abuse. Already there are reports of allegations that some attorneys are preying on the fears of consumers facing foreclosure, offering to renegotiate loans and save residences in exchange for up-front payments, when in fact these lawyers may not have the means, ability, or the inclination to stop the foreclosure process. Stories like these are painful reminders that the possible adverse effects of the downturn are not limited to the somewhat more sympathetic hypotheticals outlined above. In short, the public should be on guard for outright theft and swindling.

This economic downturn will test many things, not the least of which is our wallets, but it will also test the character of our profession. It is Bar Counsel’s duty to ensure that violations of the Rules of Professional Conduct are properly addressed, but it is the sworn obligation of District of Columbia attorneys to avoid committing those wrongs in the first place. This obligation exists without regard to the very real stresses caused by an adverse economic climate.

So, for lawyers in the District as well as those nationwide, it’s gut-check time.

Notes
[1] Jonathan D. Glater, In a Downturn, More Act as Their Own Lawyers, N.Y. Times, Apr. 9, 2009,
[2] In re Ray, 675 A.2d 1381, 1387 (D.C. 1996).
[3] This requirement applies to both new and experienced attorneys. See In re Shorter, Bar Docket No. 194-96 (BPR Oct. 31, 1997), Board recommendation adopted, 707 A.2d 1305 (D.C. 1998).
[4] In re Gonzalez, 773 A.2d 1026 (D.C. 2001).

Bill Ross is an assistant bar counsel and Joe Perry is a law clerk.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
IN RE PETER J. CINQUEGRANI. Bar No. 396732. March 25, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Cinquegrani by consent.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
IN RE MICHAEL J. BEATTIE. Bar No. 450873. March 5, 2009. The D.C. Court of Appeals disbarred Beattie by consent.

IN RE PATRICK J. COLE. Bar No. 358025. March 26, 2009. The D.C. Court of Appeals suspended Cole for 30 days. Cole’s discipline stems from his mishandling of an asylum immigration case, including misleading his client on the status of the matter despite numerous telephone calls from his client. Cole violated rules pertaining to competence, diligence and zeal, communication, dishonesty, and conduct prejudicial to the administration of justice. 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 8.4(c), and 8.4(d).

IN RE CLARISSA THOMAS-EDWARDS. Bar No. 434607. March 12, 2009. The D.C. Court of Appeals accepted Thomas-Edwards’ petition for negotiated disposition for two consolidated matters and publicly censured Thomas-Edwards for violations of Rules 1.4, 1.14(a), 1.15(a), and 1.16(d).

IN RE MELDON S. HOLLIS JR. Bar No. 379671. March 26, 2009. The D.C. Court of Appeals denied Hollis’ petition for reinstatement.

IN RE ALAN S. TOPPELBERG. Bar No. 230185. March 5, 2009. The D.C. Court of Appeals approved Toppelberg’s petition for negotiated discipline and suspended Toppelberg for one year with fitness. In a consolidated issue pertaining to five separate matters, Toppelberg violated Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.4(a), 1.4(b), 1.15(a), 1.15(b), 1.16(a)(1), 1.16(d), 3.2(b), 3.3(a)(1), 5.1(a), 5.1(b), 5.3(b), 5.5(a), 8.1(a), 8.4(a), 8.4(c), 8.4(d) and D.C. Bar R. XI, § 2(b)(3) and D.C. Bar R. XI, § 19(f).

Reciprocal Matters
IN RE DONAL B. BARRETT. Bar No. 359787. March 5, 2009. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals imposed substantially different reciprocal discipline and disbarred Barrett. The Commonwealth of Massachusetts Supreme Judicial Court for Suffolk County suspended Barrett for two years, with a requirement that he pay costs for engaging in intentional misappropriation when he used corporate funds for his personal benefit and then created false documents and made false statements to conceal his actions.

IN RE JOHN F. BEGGIN. Bar No. 421636. March 12, 2009. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals disbarred Beggin as identical reciprocal discipline.

IN RE MARIA INES GONZALEZ. Bar No. 439718. March 19, 2009. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Gonzalez for 90 days with reinstatement conditioned upon proof of rehabilitation. The Supreme Court of New Jersey suspended Gonzalez for failing to supervise nonlawyer assistants who stole client funds and performed the services of a lawyer in personal injury matters.

IN RE STEVEN J. RIGGS. Bar No. 413902. March 5, 2009. In a consolidated reciprocal matter involving independent disbarments from both California and the United States Court of Appeals for the Seventh Circuit, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Riggs.

Interim Suspensions Taken by the District of Columbia Court of Appeals
IN RE RICHARD W. ALLISON JR. Bar No. 491626. March 2, 2009. Allison was suspended on an interim basis for his conviction of a crime in the United States District Court for the District of Maryland, Greenbelt Division.

Disciplinary Actions Taken by Other Jurisdictions
In accordance with D.C. Bar Rule XI, § 11(c), the D.C. Court of Appeals has ordered public notice of the following nonsuspensory and nonprobationary disciplinary sanctions imposed on D.C. attorneys by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline and search by individual names.

IN RE THOMAS HOWARD QUEEN. Bar No. 146340. On March 12, 2009, the Attorney Grievance Commission of Maryland publicly reprimanded Queen.

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/attorney-discipline. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/
opinions_mojs.jsp
.