Washington Lawyer

Bar Counsel: 20/20: The Future of the Rules of Professional Conduct

From Washington Lawyer, June 2013

By Gene Shipp

barcounsel
Do you remember when locking your file cabinet and then locking your office door was all the security anyone would expect and took care of all of your ethical obligations?

Do you remember when lawyers traveling from Maryland, to the District of Columbia to Virginia and back was a huge concern for regulators? Oh, were the world still so simple.

The American Bar Association (ABA) Commission on Ethics 20/20 has finished its work, and now all of the adopted changes to the Model Rules of Professional Conduct head to the states for consideration and adoption. Here is a short rendition of the ABA’s recommended changes.[1]

During the August 2012 Annual Meeting in Chicago, the ABA House of Delegates adopted the following changes:

1. Technology and Confidentiality (Rules 1.0, 1.1, 1.4, and 1.6)

The Terminology Section was updated to take out the term “e–mail” (who knew that was passé?) in favor of “electronic communications.” An attorney’s competency now requires understanding the benefits and risks associated with technology, according to the revised comment. In another nod to technology, an attorney has to promptly respond to or to acknowledge client communications (the term “phone call” is out). Rule 1.6 adds section (c) obligating an attorney to make reasonable efforts to prevent inadvertent, unauthorized disclosure or access to protected information. Rule 4.4 addresses the inadvertent “electronically stored information” received (not just a fax anymore).

2. Technology and Client Development (Rules 1.18, 7.1, 7.2, 7.3, and 5.5)
The word “discusses” is out as “consults” is now the term of art to identify who is a potential client. (You must learn information instead of just discuss.) Your advertisements must not mislead the public; “prospective client” has been broadened. The ABA is adding e–mail and Web site references as well as “Internet” to the section that previously referred only to TV. Soliciting employment from a prospective client is shortened to “soliciting employment.” In another place, the term “prospective client” has been changed to “target of the solicitation.” (D.C. has not adopted a good deal of the old language, so this may not be of interest.)

3. Outsourcing (Retaining Outside Talent to Assist the Client, Either Legal or Nonlegal) (Rule 1.1, 5.3, and 5.5)

Changes were made primarily to the comment, with clarifying examples added. Basically, the attorney is obligated to obtain client consent for retaining these outside legal resources and is responsible in a reasonable way for the competency and ethical behavior of the resource. Communication about scope and responsibility is key. The new rules would also require the attorney to keep abreast of the benefits and risks of technology. On the nonlegal side, the attorney must reasonably make sure that the services are compatible with professional obligations. If the lawyer chooses to hire nonlawyers to provide assistance in a client matter, there is a heightened responsibility for the nonlawyer’s ethical behavior. If the client directs the selection, the lawyer should be sure all parties understand the allocation of responsibility.

4. Model Rule on Practice Pending Admission

Very close to the current practice in D.C.

5. Model Rule on Admission by Motion
Attorney must have active practice for three of five years instead of five of seven.

6. Conflicts for Lateral Moves Between Law Firms, Merging Law Firms, or the Sale of a Law Firm (Rules 1.6 and 1.17)
The modification of the confidentiality rule allows sharing of client confidences when moving to a new firm or merging law firms if the revealed information would not compromise attorney–client privilege or prejudice the client. The new rule requires the attorney to redouble efforts to protect against inadvertent, unauthorized disclosure of or access to Rule 1.6 information. Sale of a law firm is likewise updated.

In February 2013, at the ABA Midyear Meeting in Dallas, the ABA House of Delegates adopted the following changes:

1. Choice of Law–Conflicts (Rule 8.5)
The ABA added a comment allowing disciplinary counsel or the adjudicator in a disciplinary matter to take into account the agreement between the parties as to which jurisdiction’s conflict rules apply if there is a written understanding and the client has given informed consent. This makes the agreement a factor and not binding on the disciplinary systems.

2. Unauthorized Practice of Law/Multijurisdictional Practice of Law–Inbound Foreign Attorney (Rule 5.5)
The issue of the in–house foreign attorney is addressed by this change by adding the words “foreign attorney” to the present rule. It adds responsibility by requiring the in–house foreign counsel to consult with a properly admitted attorney if the advice is on a particular state law.

Rule 5.5(e) is added to impose the following requirements on the in–house foreign attorney:

  1. Good standing of a recognized legal profession, and
  2. Subject to effective regulation/discipline.

3. Pro Hac Vice Admission–Foreign Attorney
The addition of foreign attorneys to the pro hac vice rule applies the same standards as set forth for Rule 5.5, including consultation with local counsel.

4. Model Rule In-House Counsel–Foreign Attorney
Sets out requirements for registering foreign attorneys as in–house counsel, which tracks the two proposals set forth above for foreign attorneys, including consultation with local counsel.

5. No Change on Nonlawyer Ownership
Finally, for those of you who follow controversy, there is no change on permitting nonlawyer ownership in law firms. There is also no change on permitting D.C. law firms with nonlawyer owners to practice without violating another state’s ethics rules if the firms have more than a D.C. license. (The final proposal before the 20/20 Commission was to put a comment in the rules permitting an attorney admitted in a state and in D.C. to have a nonlawyer partner in D.C., pursuant to D.C. ethics rules, but it failed to muster a positive vote.)  

Here is the lesson I learned sitting in the back row of the 20/20 Commission meetings. Our world is changing faster than the ABA can study and adopt rules and our courts can enact them. It’s changing so fast that a high–profile celebrity, who comes to your office on a highly confidential matter and graciously pauses to allow a picture with your receptionist, may be unhappy with your staff’s violation of Rule 1.6 when their picture appears on the Internet even before you have had a chance to say hello.

Oh, what a world, g.

Gene Shipp serves as bar counsel for the District of Columbia.

Note
[1] Lawyers licensed in the District of Columbia are reminded that they are subject to the D.C. Rules of Professional Conduct (See D.C. Rule 8.5) and not the ABA Model Rules. The D.C. Rules can be found at www.dcbar.org/ethics.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Mark L. Lezell. Bar No. 175000. March 19, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Lezell by consent.

In re Lathal Ponder Jr. Bar No. 434951. March 25, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals hold this matter in abeyance and order that the court’s October 16, 2012, order of temporary suspension remain in effect until further order. In the underlying matter, Ponder was temporarily suspended by the United States District Court for the District of Columbia following his failure to respond to an order to show cause in connection with a grievance investigation.  

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Kenneth A. Martin. Bar No. 420600. March 28, 2013. The D.C. Court of Appeals suspended Martin for 18 months, with restitution or disgorgement as a condition of reinstatement. While retained to represent a small corporation in a civil matter, Martin charged an unreasonable fee, comingled funds after the client disputed the fee, failed to promptly return client funds after the Attorney/Client Arbitration Board awarded the client the unreasonable portion of the fee, falsely testified that he received advice from the D.C. Bar Ethics Hotline to retain the disputed funds in his operating account, and required the client to withdraw a bar complaint against him pursuant to a settlement agreement. Rules 1.5(a), 1.15(a), 1.15(c), 1.16(d), 8.4(c), and 8.4(d).

Reciprocal Matters
In re Shakyamuni–Re Shiva Arati. Bar No. 439957. March 21, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Arati. The Maryland Court of Appeals had disbarred Arati by consent for misconduct involving neglect of client matters and a failure to safeguard or return unearned fees.

In re John K. Burkhardt. Bar No. 370517. March 28, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended Burkhardt, with the right to reapply after reinstatement in Maryland, or after five years, whichever occurs first.

In re Sean Patrick Gjerde. Bar No. 479588. March 28, 2013. In a reciprocal matter from California, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and indefinitely suspended Gjerde, with a right to apply for reinstatement in five years, or when reinstated in California, whichever occurs first. The State Bar Court of California found that Gjerde’s conduct posted a substantial threat of harm to his clients and to the public.

In re Jerrold N. Kaminsky. Bar No. 235440. March 28, 2013. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Kaminsky for three months with a fitness requirement. In connection with real estate matters, Kaminsky prepared documentation containing false information and engaged in conflicts of interest. Rules 1.2, 1.7(a), and 8.4(c).

In re Michael A. Murphy. Bar No. 450122. March 28, 2013. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Murphy for one year and one day with fitness. In Massachusetts, Murphy was found to have knowingly overbilled clients and engaged in dishonesty.

In re Godson M. Nnaka. Bar No. 457460. March 21, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Nnaka. The Maryland Court of Appeals found that Nnaka engaged in misconduct involving instructing clients to lie to a court.

In re Richard P. Rieman Jr. Bar No. 436589. March 21, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Rieman. Rieman was disbarred by consent by the Court of Appeals of Maryland for misconduct involving a conflict of interest and dishonesty.

In re Jonathan S. Shurberg. Bar No. 440459. March 28, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended Shurberg with fitness and the right to file for reinstatement once reinstated by Maryland, or after six months, whichever occurs first. The Court of Appeals of Maryland found that Shurberg had engaged in misconduct involving the misappropriation of client funds.

In re Terri J. Sneider. Bar No. 420558. March 28, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Sneider pursuant to a disability suspension under D.C. Bar R. XI, § 13(e).

In re George G. Strott Jr. Bar No. 222653. March 28, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended Strott, with fitness and the right to petition for reinstatement in 30 days, nunc pro tunc to January 8, 2013. The Court of Appeals of Maryland had imposed discipline on Strott by consent.

In re Joseph Tauber. Bar No. 416942. March 28, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Tauber for 30 days. The Court of Appeals of Maryland found Tauber had failed to deposit unearned fees into his trust account.

Interim Suspensions Issued by the District of Columbia Court of Appeals
In re Sandy Chang. Bar No. 989203. March 27, 2013. Chang was suspended on an interim basis based upon suspension orders of the United States District Court for the District of Maryland and the United States Bankruptcy Court of the Eastern District of Virginia. The underlying matters involved the alteration of Credit Counseling Certificates filed by Chang in both courts.

In re Lennox J. Simon. Bar No. 426360. March 27, 2013. Simon was suspended on an interim basis, pursuant to D.C. Bar R. XI, § 9(g), pending final action on the Board on Professional Responsibility’s January 30, 2013, recommendation of disbarment. The board found that while serving as a court–appointed conservator of the estate of an incapacitated individual, Simon engaged in reckless misappropriation of funds entrusted to him. Rules 1.1(b), 1.3(a), 1.3(c), 1.15(a), and 8.4(d).

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, visit www.dccourts.gov/internet/opinionlocator.jsf.