Washington Lawyer

Bar Counsel: Under New IOLTA Rules, Ignorance Is Not an Excuse

From Washington Lawyer, June 2010

By Joe Perry


barcounselThe District of Columbia Court of Appeals issued an order on March 22 adopting its proposed amendments to the rules governing Interest on Lawyers’ Trust Accounts (IOLTA), and further ordered that the amendments take effect August 1 “to allow time to educate area banks and the members of the Bar about these changes.” [1]

The most important change to the rules is that a D.C. attorney’s participation in the IOLTA program will now be mandatory, subject to two exceptions. First, where the attorney is or will be holding funds in compliance with an order from a tribunal (in any jurisdiction), and that tribunal has mandated that the funds be held in something other than an IOLTA, the attorney is not subject to the requirements of Rule 1.15(b) of the D.C. Rules of Professional Conduct with respect to those funds. Second, where an attorney is licensed and “principally practices” in another jurisdiction, and further participates in, and is in compliance with, an IOLTA program where he or she principally practices, the attorney is not required to participate in the D.C. IOLTA program.[2]

Members of the Bar are encouraged to review the court’s order. Further, given the upcoming changes, coupled with the court’s recent decision in Mance,[3] the time is ripe for D.C. attorneys to examine the finer points of their trust accounts and billing practices for ethical compliance. In the course of such review, lawyers should be mindful that under Rule 5.3, they are responsible for the conduct of their nonlawyer personnel who may assist in the management of trust accounts or the correct placement of entrusted funds, which can include client trust funds, advanced fees, or advanced costs.[4]

The D.C. Bar Continuing Legal Education Program, D.C. Bar Foundation, and D.C. Bar Legal Ethics Program will no doubt engage in a continued effort to educate the Bar on these changes in our ethical responsibilities. It is not a defense to an ethics investigation to say, “I have been around, I know what I am doing” when you have not kept up with the law. We suggest you read the rules, take a course, or sign up for one of the free “Basic Training” sessions for solo and small firm practitioners offered by Daniel M. Mills of the D.C. Bar Practice Management Advisory Service to make sure you are current on these new rules.

Joe Perry is a senior staff attorney at the Office of Bar Counsel.

Notes
[1] The order amends Rule 1.15 (Safekeeping Property) and adds a new Section 20 to Rule XI of the Rules Governing the D.C. Bar. The order also deletes Rule 1.19 of the D.C. Rules of Professional Conduct (Trust Account Overdraft Notification) and Appendix B to the Rules Governing the Bar, all effective August 1. 
[2] Comment [3] to Rule 1.15, as amended, states:
IOLTA programs are known by different names or acronyms in some jurisdictions; this rule and its exceptions apply to all such programs, however named. 
[3] In re Mance, 980 A.2d 1196 (D.C. 2009), holding that: 
for purposes of Rule 1.15(d), money paid by a client as a flat fee for legal services remains the client’s property, and counsel may not treat any portion of the money otherwise until it is earned, unless the client has agreed otherwise. 
[4] Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) states that with respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) A partner or a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm or government agency shall make reasonable efforts to ensure that the firm or agency has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) The lawyer requests or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer has direct supervisory authority over the person, or is a partner or a lawyer who individually or together with other lawyers possess comparable managerial authority in the law firm or government agency in which the person is employed, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE CLAUDE A. ALLEN. Bar No. 433601. March 9, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Allen for one year and order that he make restitution, with interest as appropriate, prior to reinstatement. Allen pleaded guilty to the crime of theft of property, a criminal act that reflects adversely on his honesty. Specifically, on at least three separate occasions, Allen conducted a fraudulent return scheme to deprive a retail store of its property. Rules 8.4(b) and 8.4(c).

IN RE BRIAN D. GENO. Bar No. 416468. March 11, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals publicly censure Geno. While retained in an immigration matter, Geno failed to act with reasonable promptness and failed to keep the client reasonably informed about the status of the matter. Rules 1.3(c) and 1.4(a).

IN RE KIM E. HALLMARK. Bar No. 437950. March 2, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals find Hallmark convicted of crimes involving moral turpitude, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001). Hallmark pleaded guilty to eight misdemeanor charges: five counts of theft, two counts of fraud, and one count of contempt of court. The board found that although Hallmark pleaded guilty to the misdemeanors, the conduct involved theft and fraud for personal gain, offenses involving moral turpitude.

IN RE TAMLA T. SCOTT. Bar No. 496724. March 17, 2010. In a consolidated reciprocal and original matter, the Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Scott for two years with fitness. In the reciprocal matter, Scott was suspended by the Disciplinary Hearing Commission of the North Carolina State Bar for three years, with the right to apply for a stay of the remaining period of suspension after one year. The North Carolina Commission’s order of discipline was based on Scott’s stipulations that she (1) failed to respond to fee dispute petitions in four matters and to the related disciplinary grievances and (2) failed to provide competent representation and to communicate. The original matter was based on Scott’s failure to update the D.C. Court of Appeals Committee on Admissions’ Supplemental Questionnaire with information concerning the pending disciplinary complaints in North Carolina. Scott made a knowingly false statement of material fact in connection with a bar admission application; failed to disclose a fact necessary to correct a misapprehension known by an applicant in connection with a bar application; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaged in conduct that seriously interferes with the administration of justice. Rules 8.1(a), 8.1(b), 8.4(c), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
IN RE RICHARD W. ALLISON JR. Bar No. 491626. March 4, 2010. The D.C. Court of Appeals disbarred Allison. Allison pleaded guilty to federal charges of conspiracy to commit mail and wire fraud in the United States District Court for the District of Maryland. As mail fraud is a crime of moral turpitude per se, disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE LUCY R. EDWARDS. Bar No. 197020. March 11, 2010, as amended March 18, 2010. In a consolidated matter, the D.C. Court of Appeals disbarred Edwards, effective 30 days from the date of the amended opinion, and as a condition for reinstatement, required that she pay restitution to her client in the amount of $1,000 with interest at the legal rate of 6 percent from June 7, 1995. In the first matter, Edwards intentionally misappropriated client funds in violation of Rule 1.15(a); failed to maintain complete financial records in violation of Rule 1.15(a) and D.C. Bar Rule XI, § 19(f); failed to deliver to a client money to which he was entitled in violation of Rule 1.15(b); failed to surrender to a client property to which he was entitled, in violation of Rule 1.16(d); failed to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(b); failed to comply with an order of the Board on Professional Responsibility in violation of D.C. Bar Rule XI, § 2(b)(3); and seriously interfered with the administration of justice in violation of Rule 8.4(d). In the second matter, Edwards drafted a will for her client, agreed to serve as his personal representative, and agreed to hold the original will until his death. However, Edwards failed to have a system in place by which she could determine that she held his will in her office files and that she was to probate his estate. Then, after learning that her client had died, Edwards was unable to locate the original will and failed to initiate probate of his estate despite her agreement to do so. She ultimately found the original will four years after her client’s death. Edwards failed to serve the estate, which included a sole beneficiary, with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters. In addition, Edwards neglected her duty to her deceased client and his heir and, as a result, adversely impacted the probate process in the District of Columbia. For her misconduct in this second matter, the court suspended Edwards for 30 days, to run concurrent with the disbarment. Rules 1.1(b) and 8.4(d).

Reciprocal Matters
IN RE EDWARD M. FINK. Bar No. 96040. March 11, 2010. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Fink, nuncpro tunc to November 2, 2009. One judge dissented with regard to the sanction.

IN RE RENARD D. JOHNSON. Bar No. 488614. March 11, 2010. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Johnson. The Maryland Court of Appeals disbarred Johnson for his role in a fraudulent equity-stripping real estate transaction.

IN RE WILL PURCELL. Bar No. 470488. March 11, 2010. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Purcell. The Maryland Court of Appeals disbarred Purcell for his role in a fraudulent equity-stripping real estate transaction.

IN RE MONTGOMERY BLAIR SIBLEY. Bar No. 464488. March 11, 2010. In a reciprocal matter from Florida, the D.C. Court of Appeals suspended Sibley for three years with fitness as functionally equivalent reciprocal discipline. The Supreme Court of Florida suspended Sibley for three years with the equivalent of a fitness requirement after it found that Sibley had violated court orders by willfully failing to pay child support and that he had repeatedly initiated meritless litigation.

IN RE OSCAR W. WEEKES JR. Bar No. 446257. March 11, 2010. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals suspended Weekes for five years with a fitness requirement as functionally equivalent reciprocal discipline. The Supreme Judicial Court for Suffolk County, Commonwealth of Massachusetts, indefinitely suspended Weekes. While employed as assistant general counsel for a corporation, Weekes caused more than $25,000 in checks to be drawn on his employer’s account, ostensibly as payment to companies that had rendered services to his employer, but the checks were in fact used by Weekes to pay rent for his personal apartment and a vacation rental in Rhode Island.

Interim Suspensions by the District of Columbia Court of Appeals

IN RE WALTER L. BLAIR. Bar No. 471057. March 19, 2010. Blair was suspended on an interim basis based upon his conviction of a serious crime in the United States District Court for the District of Maryland.

IN RE G. SCOTT CHRISTENSON. Bar No. 362377. March 30, 2010. Christenson was suspended on an interim basis based upon discipline imposed in California.

IN RE GARRISON S. CORBEN. Bar No. 460419. March 19, 2010. Corben was suspended on an interim basis based upon discipline imposed in Massachusetts.

IN RE JOHN L. HILL. Bar No. 439358. March 23, 2010. Hill was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE SEAN K. HORNBECK. Bar No. 460597. March 19, 2010. Hornbeck was suspended on an interim basis based upon disability inactive status imposed in Tennessee.

IN RE STEPHEN M. HUNTER. Bar No. 435111. March 22, 2010. Hunter was suspended on an interim basis based upon discipline imposed in Rhode Island.

IN RE CHRISTOPHER D. MATCHETT. Bar No. 423355. March 24, 2010. Matchett was suspended on an interim basis based upon discipline imposed in Louisiana.

IN RE SAM MATTHEWS. Bar No. 430223. March 22, 2010. Matthews was suspended on an interim basis based upon discipline imposed in New Jersey.

IN RE JOHN M. SHARP. Bar No. 475957. March 19, 2010. Sharp was suspended on an interim basis based upon discipline imposed in Louisiana.

IN RE JOHN J. ZODROW. Bar No. 444703. March 23, 2010. Zodrow was suspended on an interim basis based upon discipline imposed in Colorado.

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 DONTRICE P. HAMILTON. Bar No. 496651. On November 20, 2009, the Attorney Grievance Commission of Maryland reprimanded Hamilton.

IN RE BRIAN P. MURPHY. Bar No. 71399. On December 22, 2009, the Attorney Grievance Commission of Maryland reprimanded Murphy.

IN RE STEVEN JAY ROZAN. Bar No. 209262. On October 31, 2007, the Evidentiary Panel of the State Bar District No. 4A1 Grievance Committee of Texas publicly reprimanded Rozan for his failure to carry out his obligations owed to clients, failure to communicate with a client, and failure to protect a client’s interests upon termination of the representation.

IN RE STEVEN JAY ROZAN. Bar No. 209262. On October 31, 2007, the Evidentiary Panel of the State Bar District No. 4A1 Grievance Committee of Texas publicly reprimanded Rozan for his failure to communicate with a client, failure to protect a client’s interests upon termination of the representation, and failure to respond in a timely manner to a disciplinary complaint.

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. 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, visitwww.dcappeals.gov/dccourts/appeals/
opinions_mojs.jsp
.