Washington Lawyer

Bar Counsel’s Page: Beyond Confidences: Keeping Client Secrets

From Washington Lawyer, October 2001

By Joyce E. Peters

barcounsel2

Central to the attorney-client relationship and a touchstone of the profession of lawyering is confidentiality of information-confidentiality of communications, confidentiality of advice, confidentiality of strategy, and even confidentiality about the existence of the attorney-client relationship itself. Intended to promote early and open communication between the client and the lawyer and to ensure that the underlying trust relationship remains inviolate even after the representation has ended, the basic concept stated in Rule 1.6(a) of the D.C. Rules of Professional Conduct seems simple enough:

Except when permitted under paragraph (c) or (d), a lawyer shall not knowingly: (1) Reveal a confidence or secret of the lawyer’s client; (2) Use a confidence or secret of the lawyer’s client to the disadvantage of the client; (3) Use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

     The simplicity of this rule, however, belies its complexity. The exceptions and limitations to the rule often make its application in practice quite difficult. Numerous cases, articles, ethical opinions, and even the lengthy commentary to the rule itself address issues such as the attorney-client privilege, the work product privilege, and the scope of the basic ethical requirements.

Earlier this year Susan Gilbert in Speaking of Ethics wrote an interesting two-part series designed as a primer on confidentiality.1 In addition to reviewing the requirements of Rule 1.6 concerning confidentiality of information, she briefly outlined the numerous opinions that have been rendered over the past several years by the D.C. Bar Legal Ethics Committee concerning client confidences and discussed the various exceptions permitted by Rule 1.6(c) and (d) and the rule’s comments.2

In most cases confidentiality-of-information issues are easily recognized, as they usually involve decisions about whether the lawyer may disclose information and often arise in situations in which attorney-client privilege rules are applicable. Because these situations involve prospective action, the lawyer can and should seek ethical advice prior to deciding whether to withhold or disclose the information, and may, after full consultation, be able to obtain the client’s consent to release the information if none of the other exceptions contained in the rule applies. These cases typically involve "confidences" as defined in Rule 1.6(b), that is, "information protected by the attorney-client privilege under applicable law."

Rule 1.6(b), however, does not simply involve confidences, but also refers to "secrets." Although much of the analysis involving confidentiality of information refers collectively to confidences and secrets or secrets and confidences without clearly demarcating the differences between them, each is defined separately in Rule 1.6(b), and these definitions reveal that they are really quite different. As Comment [6] to Rule 1.6 points out, quoting verbatim the definition of "secret" from the rule:

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law; furthermore, it applies not merely to matters communicated in confidence by the client (i.e., confidences) but also to all information gained in the course of the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing or would be likely to be detrimental to the client (i.e., secrets). This ethical precept . . . exists without regard to the nature or source of the information or the fact that others share the knowledge. It reflects not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client. (Emphasis added.)

     Thus, a secret may involve information not gained directly from the client. It may be obtained from investigation or some other source. A client may request that certain information not be disclosed, or the information might be something that the client does not know or appreciate as a secret. It might be information about the client3 or information that the lawyer learns from handling the client’s matter-information potentially embarrassing to the client or that could cause harm to the client. Under Rule 1.6 the lawyer is responsible for identifying and protecting information that is a secret. If the lawyer is aware that the information qualifies as a secret under Rule 1.6(b), even if the information has been published through some other source, the lawyer must not disclose it further, but must protect it to avoid harm or embarrassment to the client.

The Court of Appeals for the District of Columbia recently considered the Virginia version of our Rule 1.6 in In re Gonzalez,4 a case involving disclosure of a client’s secrets by a District of Columbia lawyer. The Virginia rule,5 rather than the District of Columbia rule, was applicable because the conduct occurred in connection with a proceeding pending in the Fairfax County Circuit Court.6

In Gonzalez the attorney twice attempted to withdraw as counsel. The relationship between the attorney and his client had seriously deteriorated prior to these withdrawal attempts, and the attorney had sent his client letters in which he accused her of failing to pay his fees, failing to cooperate with him, and making untrue representations to him.

As part of his first motion to withdraw, which was sent to the opposing counsel as well as the court, the attorney attached seven letters he had previously sent to his client. In the motion the attorney berated and accused his client of having "missed appointments on a number of occasions, failed to timely provide information. . . , and made misrepresentations to her attorneys."7 In one of the letters attached in support of the motion, the attorney had revealed his client’s litigation posture, stating, "Your exposure is in the tens of thousands. The complainant asks for approximately $1 million. [Plaintiff’s] attorney talks of a realistic figure around $90,000. At a minimum there is about $40,000 at stake from his payments to you."8

The attorney’s first motion to withdraw was rejected by the court for administrative reasons. Between the attorney’s two motions to withdraw, another attorney entered an appearance and filed a stipulation substituting the new counsel for the attorney. Nonetheless, the attorney refiled the motion with the letters to the court, but apparently, at the request of the new counsel, did not send the letter attachments to the opposing counsel a second time. The attorney, however, made no effort to file either motion in camera with the court and claimed during the disciplinary proceeding that the Virginia court would not have granted his motion without the supporting evidence.

In reviewing the conduct of the attorney, the D.C. Court of Appeals concluded that the attorney had "revealed secret information about his clients in his motion to withdraw and in the attachments thereto, and he failed to take steps to minimize the possibility of harm."9 The court had no difficulty in concluding that the information contained in the motion and its attachments had been gained in the professional relationship between the attorney and his client: "If there had been no professional relationship, then the alleged facts of which [the attorney] complained . . . would not have existed, and [the attorney] would neither have known them nor revealed them."10

In reaching its decision and directing Bar Counsel to issue the attorney an informal admonition, the court concluded: "We think it obvious that a public allegation by a client’s own lawyer that the client deliberately lied to him would be ’embarrassing’ to the client and ’would be likely to be detrimental’ to her. . . . An attorney’s duty of confidentiality applies not only to privileged ’confidences,’ but also to unprivileged secrets. . . ."11

Thus, the court’s decision in Gonzalez highlights the bedrock ethical principle that lawyers are expected to preserve the confidentiality of client information-both confidences and secrets. Whether the information is gained from the lawyer’s consultations with the client as a confidence or is gained in the course of the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing or likely to be detrimental to the client, meeting the broader definition of a secret, protecting that information and holding it inviolate continues to be the sacred duty of the lawyer.

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Domenic Alongi. 318 Wadsworth Avenue, Tonawanda, New York. July 31, 2001. In a reciprocal matter from New York, the board recommends that the court suspend Alongi for one year with the requirement that he demonstrate fitness to practice law, including proof of mental fitness, prior to reinstatement. The New York court suspended Alongi for one year, with reinstatement conditioned upon proof that he possesses the requisite mental capacity to resume the practice of law. The New York court found that he neglected a legal matter; violated the rules of a tribunal; provided improper financial assistance to a client; engaged in a conflict of interest by failing to disclose to an estate client with whom he was involved in a consensual sexual relationship of the potential effect of the relationship on the independent exercise of his professional judgment or to advise the client of her right to seek independent legal advice regarding a substantial testamentary gift to him; and engaged in conduct involving deceit and misrepresentation, conduct prejudicial to the administration of justice, and conduct that adversely reflected on his fitness to practice law.

In re Diane E. Cafferty. 1742 S Street NW, Washington, D.C. July 31, 2001. The board recommends that the court disbar Cafferty. The board found that Cafferty misappropriated monthly condominium fees that had been entrusted to her by clients, commingled entrusted funds with her own, and failed to deliver funds promptly to the clients or to render an accounting for the funds.

In re Glenn H. Carlson. 1660 L Street NW, Washington, D.C. July 31, 2001. The board recommends that the court make a finding that Carlson misappropriated monthly condominium fees that had been entrusted to him by clients, commingled entrusted funds with his own, failed to deliver funds promptly to the clients or to render an accounting for the funds, committed criminal acts (theft and fraud) that reflect adversely on his fitness as a lawyer, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Carlson was previously disbarred on January 13, 2000, in connection with a separate matter; therefore no further sanction is necessary.

In re W. Eric Cloud. 10605 Woodlawn Boulevard, Largo, Maryland. July 31, 2001. The board recommends that the court disbar Cloud. Cloud misappropriated funds that he received in connection with a workers’ compensation settlement, commingled entrusted funds with his own, and failed to maintain entrusted funds in a properly designated account or to pay a third party the full amount that it was owed from settlement funds.

In re David E. Edmonds. 3525 Davenport Street NW, Washington, D.C. June 18, 2001. In a reciprocal matter from Massachusetts, the board recommends that the court suspend Edmonds for 30 days, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Edmonds was alleged to have abandoned cases that he was assigned as an assistant attorney general for the commonwealth of Massachusetts. When he failed to cooperate with the ensuing disciplinary investigation, the Massachusetts disciplinary authorities administratively suspended him for an indefinite period. The board declined to impose an identical sanction, concluding instead that the misconduct found in Massachusetts warrants substantially different discipline in this jurisdiction.

In re Gerard E. Evans. Evans & Stierfoff, 164 Conduit Street, Annapolis, Maryland. July 30, 2001. The board recommends that the court disbar Evans. Evans was convicted in the United States District Court for the District of Maryland of mail fraud and wire fraud, crimes involving moral turpitude for which disbarment is required pursuant to D.C. Code § 11-2503(a).

In re Jonathan J. Ezer. 1146 Fort Street Mall, Honolulu, Hawaii. June 18, 2001. In a reciprocal matter from Hawaii, the board recommends that the court disbar Ezer. The Hawaii court permitted Ezer to resign in lieu of discipline, the functional equivalent of disbarment by consent in this jurisdiction.

In re James J. Gormley. 2442 Dunkerrin Lane, Atlanta, Georgia. July 27, 2001. The board recommends that the court disbar Gormley. Gormley was convicted in the United States District Court for the Southern District of West Virginia of aiding and abetting wire fraud, conspiracy to commit wire fraud, conspiracy to obstruct justice, and perjury, all of which are crimes involving moral turpitude and thus require his automatic disbarment pursuant to D.C. Code § 11-2503(a).

In re Stephen R. Gregory. 3000 Connecticut Avenue NW, Washington, D.C. July 16, 2001. The board recommends that the court disbar Gregory. Gregory misappropriated entrusted funds and failed to notify a third party of his receipt of funds to which they were entitled or to supervise adequately a nonlawyer who handled entrusted funds to ensure that her conduct was compatible with his professional obligations.

In re Mark M. Hager. American University Washington College of Law, 4801 Massachusetts Avenue NW, Washington, D.C. July 31, 2001. The board recommends that the court suspend Hager for one year in connection with his representation of individuals in a potential class action consumer claim. Hager, together with cocounsel, accepted a $250,000 fee from a potential defendant in exchange for agreeing not to assert claims on behalf of his clients or any other party, to keep the terms of the agreement secret (including the fact that he was paid a fee by the defendant and the amount of the fee), and to withhold his work product from his clients. Although his clients received some relief and were not required to release their potential claims, he failed to disclose to all but one client that they were free to pursue their claims. The board concluded that Hager engaged in a conflict of interest by representing clients when his own professional judgment on behalf of the clients might be adversely affected by his financial or personal interests; accepted third-party compensation that interfered with his professional judgment without notice to his clients or the clients’ consent; continued to represent the clients when to do so would result in a violation of the ethical rules; failed to protect the clients’ interests once the representation ended by refusing to disclose to clients the names of the other class members and agreeing not to turn over his work product (including facts and legal theories) to the clients; failed to inform the clients about the terms of the agreement with the potential defendant; misrepresented facts to his clients by advising one client that he was not representing her in negotiations with the potential defendants, by withholding the fact that he had been paid a fee, and by failing to advise the clients of their right to pursue their claims against the defendant; accepted a settlement offer without his clients’ consent; and participated in making a settlement agreement that included in its terms a restriction on his future practice.

In re Kim E. Hallmark. 1730 K Street NW, Washington, D.C. May 31, 2001. The board recommends that the court suspend Hallmark for 90 days, with the requirement that she demonstrate fitness to practice law and make restitution to various parties prior to reinstatement. Hallmark failed to keep clients reasonably apprised of the status of matters or to respond to reasonable requests for information, to return the unearned portion of fees, or to protect clients’ interests upon withdrawal by surrendering client files and returning any unearned fees; engaged in conduct that seriously interfered with the administration of justice; and failed to respond to or comply with orders of the Board on Professional Responsibility.

In re Bruce W. Haupt. 1359 Parkwood Place NW, Washington, D.C. May 25, 2001. The board recommends that the court deny Haupt’s petition for reinstatement. Haupt was disbarred on March 31, 1982.

In re Steven H. Hofberg. Goren & Hofberg, 11300 Rockville Pike, Rockville, Maryland. May 29, 2001. In a reciprocal matter involving disbarment by Maryland, the board recommends that the court disbar Hofberg. In connection with nine separate matters, Hofberg neglected his clients’ cases; prejudiced clients during the course of representations; misrepresented the status of a matter to a client; and failed to communicate with clients regarding the status of their cases, to inform clients of a proposed settlement agreement, to return clients’ files and unearned fees after the representation ended, to respond to disciplinary authorities, to render an accounting to a title insurance company that employed him as a licensed agent, to comply with a court order directing him to pay damages to the insurance company, or to provide account for funds he held in trust on behalf of clients.

In re Thomas J. Mattingly. 4702 Rocky Spring Lane, Bowie, Maryland. July 27, 2001. The board recommends that the court suspend Mattingly for six months, with the requirement that he demonstrate fitness to practice law prior to reinstatement. In connection with three disciplinary matters, Mattingly failed to respond to Bar Counsel inquiries or to orders of the Board on Professional Responsibility compelling his response, thereby violating D.C. Bar Rule XI, § 2(b)(3), and engaging in conduct that seriously interfered with the administration of justice.

In re James S. Maxwell. Maxwell & Co., LLC, 51 Monroe Place, Rockville, Maryland. July 31, 2001. In a reciprocal matter from Maryland, the board recommends that the court suspend Maxwell for one year. Maxwell consented to a public reprimand in Maryland for engaging in a conflict of interest with respect to the representation of multiple clients with adverse interests without disclosure to and consent of the clients and engaging in prohibited business transactions with a client. The board declined to recommend a sanction identical to that imposed in Maryland, concluding that the conduct warranted suspension, rather than a reprimand, in this jurisdiction.

In re James F. McCoole. 2039 Palmer Avenue, Larchmont, New York. July 27, 2001. The board recommends that the court disbar McCoole. McCoole was convicted in the County Court of Westchester County, New York, of three counts of grand larceny in the second degree, a crime involving moral turpitude for which disbarment is required pursuant to D.C. Code § 11-2503(a).

In re Kevin C. McDonough. 19 Commerce Street, Clinton, Connecticut. July 30, 2001. In a reciprocal matter from California, the board recommends that the court suspend McDonough for two years, nunc pro tunc to March 2, 2000, stay execution of all but 60 days of the suspension, and place him on unsupervised probation with conditions. In California, McDonough stipulated that he failed to maintain trust account records, used his trust account for personal purposes, and issued numerous checks from the account at a time when he knew or should have known that there were insufficient funds to cover them. The District of Columbia Court of Appeals, which had temporarily suspended McDonough on March 2, 2000, pending the final decision in this matter, vacated the interim suspension order on January 16, 2001. McDonough was reinstated in California on January 18, 2000.

In re Robert B. Patterson. PO Box 2051, Middleburg, Virginia. May 25, 2001. In a reciprocal matter from Virginia, the board recommends that the court suspend Patterson for 90 days. Patterson consented to a 90-day suspension in Virginia for representing a client in court at a time when he knew that his license to practice had been administratively suspended for failure to pay Virginia bar dues and for misrepresenting to a judge that he had no knowledge of the suspension.

In re Julia A. Soininen. 2223 Primrose Drive, Falls Church, Virginia. July 31, 2001. The board recommends that the court suspend Soininen for 30 days, stay execution of the suspension, and place her on probation for two years, with conditions. Soininen committed criminal acts (misdemeanor theft, driving while intoxicated, and possession of a controlled substance not obtained from or pursuant to a valid prescription) that reflected adversely on her fitness as a lawyer and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. The board concluded that Soininen’s alcohol and prescription drug addiction caused her misconduct, that she has since been rehabilitated, and that she is thus entitled to a mitigation of sanction pursuant to In re Kersey, 520 A.2d 321 (D.C. 1987).

In re Robert M. Standard. 1951 Thayer Avenue, Los Angeles, California. June 29, 2001. The board recommends that the court disbar Standard. Standard was convicted in the United States District Court for the Central District of California of subscribing to a false tax return and bankruptcy fraud, a crime involving moral turpitude and thus requiring his automatic disbarment pursuant to D.C. Code § 11-2503(a).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re David E. Abrahamson. 12510 Davan Drive, Silver Spring, Maryland. July 26, 2001. In a criminal matter from the United States District Court for the Eastern District of New York, where Abrahamson was convicted of the misdemeanor charge of unlawful receipt of compensation in violation of 18 U.S.C. § 1012, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re John E. Anderson. 2620 28th Street NE, Washington, D.C. August 2, 2001. The court suspended Anderson for six months for negligent, misappropriation, commingling entrusted funds with his own, and failing to notify a third party of his receipt of funds in which the party had an interest, to deliver funds to a third party, or to maintain entrusted funds in a properly designated trust or escrow account.

In re Kenneth H. Bernstein. 236 F Street NE, Washington, D.C. June 7, 2001. The court suspended Bernstein for nine months, with the requirement that he make restitution to a client and take a course on professional responsibility prior to reinstatement. Bernstein, in connection with a workers’ compensation matter, engaged in conduct involving dishonesty, charged an illegal fee, commingled entrusted funds with his own, and failed to deposit entrusted funds into a properly designated trust account.

In re John L. Clark Jr. 4956 Moonfall Way, Columbia, Maryland. April 4, 2001. In a reciprocal matter from Maryland, where Clark was indefinitely suspended, with the right to immediately apply for reinstatement, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Timothy F. X. Cleary. July 19, 2001. In a reciprocal matter from Massachusetts, the court suspended Cleary for five years, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Cleary resigned in Massachusetts while disciplinary charges were pending against him that alleged he had neglected two personal injury matters, intentionally failed to pursue clients’ claims in those matters, engaged in conduct involving dishonesty, failed to withdraw, and improperly used his trust account for personal and business purposes. [Entry corrected online December 10, 2001.]

In re Robert C. Freed. 5335 Wisconsin Avenue NW, Washington, D.C. June 7, 2001. In an original disciplinary matter in this jurisdiction and a reciprocal matter from the United States District Court for the District of Maryland, the court suspended Freed for 30 days, with the requirement that he demonstrate fitness to practice law prior to reinstatement. In the original disciplinary matter, Freed engaged in conduct that seriously interfered with the administration of justice by failing to respond to a Bar Counsel inquiry or to comply with an order of the Board on Professional Responsibility. In the reciprocal matter the federal court suspended him indefinitely, with the requirement that he demonstrate fitness prior to reinstatement, for failing to respond to a disciplinary charge.

In re Edward Gonzalez. 7921 Jones Branch Drive, McLean, Virginia. June 7, 2001. The court directed Bar Counsel to issue Gonzalez an informal admonition for revealing a client’s secrets in connection with a motion to withdraw.

In re James V. Hackney III. 1250 24th Street NW, Washington, D.C. June 28, 2001. The court disbarred Hackney, nunc pro tunc to January 17, 2001, based upon his criminal conviction in the United States District Court for the Northern District of Indiana of four counts of wire fraud. According to the indictment, Hackney made false representations and promises with regard to investments in order to obtain money from investors and used the money for personal expenses. Because wire fraud is a crime that involves moral turpitude, as the court has previously held, Hackney’s disbarment is mandated by D.C. Code § 11-2503(a).

In re Thomas R. Hendershot. 7525 Greenway Center Drive, Greenbelt, Maryland. March 9, 2001. In reciprocal matters from Maryland and from the United States District Court for the District of Maryland, where Hendershot was suspended indefinitely, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Clinton A. Jackson. 1828 18th Street NW, Washington, D.C. June 7, 2001. The court disbarred Jackson for misappropriating funds that were entrusted to pay a third-party medical provider, commingling entrusted funds with his own, and failing to maintain complete trust account records, to withdraw from a representation after discharge, or to protect a client’s interests after termination.

In re Dana W. Johnson. 7504 Burgess Lane, Fort Washington, Maryland. May 9, 2001. In a reciprocal matter from Maryland, where Johnson was disbarred, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re George E. Kersey. PO Box 2006, Salem, New Hampshire. June 28, 2001. In a reciprocal matter from Massachusetts, the court suspended Kersey for three months, with the requirement that he demonstrate fitness to practice law prior to reinstatement. The Massachusetts court suspended Kersey for three months for engaging in conduct that seriously interferes with the administration of justice in connection with his own divorce proceeding.

In re John H. McDonald. 1308 Chadwick Road, Wilmington, Delaware. June 14, 2001. In a reciprocal matter from Delaware, the court publicly censured McDonald. McDonald failed to certify as required by Delaware court rules that he had completed mandatory continuing legal education courses and thereafter failed to respond to inquiries concerning the matter from Delaware disciplinary authorities. The Delaware court issued him a public reprimand, the functional equivalent to a public censure in this jurisdiction, for knowingly disobeying an obligation under the rules of a tribunal and failing to respond to a lawful demand from a disciplinary authority.

In re Michael C. Meisler. 4312 Carlisle NE, Albuquerque, New Mexico. July 19, 2001. In a reciprocal matter from Florida, the court disbarred Meisler, nunc pro tunc to April 15, 1999. The Florida court permanently disbarred Meisler for continuing to practice law in Florida, notwithstanding that he had been permitted to resign while disciplinary charges were proceeding against him and was not eligible to apply for reinstatement for three years.

In re David V. Peery. 101 G Street SW, Washington, D.C. May 9, 2001. In a criminal matter from the District of Columbia Superior Court, where Peery was convicted of four counts of misdemeanor, second-degree theft, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re James S. Powell. Address unknown. May 9, 2001. In a criminal matter from the Circuit Court of Norfolk, Virginia, where Powell was convicted of the misdemeanor offense of drawing a check on insufficient funds, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Claude W. Roxborough. 4101 Holly Tree Road, Temple Hills, Maryland. June 7, 2001. The court reinstated Roxborough with conditions. Roxborough was the subject of decisions in 1996, 1997, and 1998, in which the court suspended him with the requirement that he demonstrate fitness to practice law prior to reinstatement.

In re Sylvia A. Ryan (a.k.a. S. Anita Ryan, Anita Webster). 3108 16th Street NW, Washington, D.C. July 6, 2001. The D.C. Superior Court, sitting by designation for the District of Columbia Court of Appeals pursuant to D.C. Code § 11-707(a), found Ryan guilty of criminal contempt for practicing law, notwithstanding that she was suspended on January 29, 1996, and has not been reinstated. Ryan was suspended for four months, with reinstatement conditioned upon a showing of fitness to practice law and restitution. The court held that she nonetheless continued to hold herself out as an attorney, to accept fees from clients, and to practice law. Sentencing is pending.

In re Charles W. Schoeneman. A Second Opinion, 2111 Wilson Boulevard, Arlington, Virginia. July 26, 2001. The court declined to sanction Schoeneman based upon his resignation in Virginia because the alleged misconduct in Virginia, that he had neglected his client’s case and failed to keep the client informed of the status of the matter, would not constitute misconduct in the District of Columbia.

In re Tony O. Shaw. 1522 K Street NW, Washington, D.C. July 12, 2001. The court publicly censured Shaw for charging an unreasonable fee by taking a contingent fee for processing an uncontested personal injury protection claim, and for failing to notify a third party upon receipt of funds in which the party had an interest or to deliver that funds to the party promptly.

In re Stephen L. Shelnutt. PO Box 536, Arlington, Virginia. April 4, 2001. In a reciprocal matter from Virginia, where Shelnutt was suspended for six months, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Gary S. Silverman. 11300 Rockville Pike, Rockville, Maryland. August 2, 2001. In a reciprocal matter from Maryland, the court suspended Silverman for 30 days, nunc pro tunc to April 13, 2000. Silverman consented to a 30-day suspension in Maryland, admitting that he had commingled entrusted funds with his own and had failed to make reasonable efforts to ensure that the conduct of his nonlawyer employees (in maintaining adequate trust account records) was compatible with his professional obligations.

In re Jane L. Wagner. 6100 Princeton Avenue, Glen Echo, Maryland. July 26, 2001. In a reciprocal matter from Virginia, where Wagner’s license was revoked, the court temporarily suspended her and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Wagner already is temporarily suspended based upon a criminal conviction.

In re Dushan Zdravkovich. PO Box 246, Riva, Maryland. February 12, 2001. In a reciprocal matter from Maryland, where Zdravkovich was indefinitely suspended, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

Notes

  1. See Wash. Law., Jan. 2001, at 8; Wash. Law., Mar. 2001, at 9.
  2. As exceptions to the general disclosure prohibition, Rule 1.6(c) permits disclosure of client confidences or secrets to the extent reasonably necessary to prevent (1) certain criminal acts likely to cause death or bodily harm, or (2) bribery or intimidation of witnesses, jurors, court officials, or other persons. Rule 1.6(d) permits disclosure of client confidences and secrets (1) with "informed" client consent, (2) when permitted by the Rules of Professional Conduct or required by law or court order, (3) when reasonably necessary to defend against certain criminal, disciplinary, civil, or malpractice claims, (4) when impliedly authorized by the client in furtherance of the representation, or (5) to the minimum extent necessary to support a lawyer’s action to recover fees.
  3. That information might even be the client’s address. In D.C. Bar Ethics Opinion 266, adopted on June 19, 1996, a lawyer sought ethical advice concerning his need to withdraw formally as counsel before the immigration court. That court required any lawyer to obtain the court’s approval to withdraw and also required as a condition of unconditional withdrawal that the lawyer disclose the client’s last known address. The opinion discusses the withdrawal rules and notes the differences between confidences and secrets. The opinion points out that immigration cases vary and that, in a deportation case, disclosing the location of the client might allow a deportation to occur to the detriment of the client. In that situation the opinion concludes that the lawyer would violate Rule 1.6(a)(1) by revealing the client’s whereabouts (a "secret") without the client’s consent. Absent consent, the lawyer would be limited to seeking only conditional withdrawal.
  4. 773 A.2d 1026 (D.C. 2001).
  5. The applicable Virginia rule, DR 4-101(B)(1), provided (with some exceptions not applicable to the Gonzalez matter) that a lawyer shall not "knowingly . . . [r]eveal a confidence or secret of his client." The definition of "secret" in Virginia DR 4-101(A) is substantially the same as the definition in our Rule 1.6(b).
  6. Rule 8.5(b) of the D.C. Rules of Professional Conduct contains choice-of-law rules. When a lawyer is licensed in two jurisdictions (in this case the District of Columbia and Virginia) and the alleged misconduct occurs in connection with a judicial proceeding in one of the licensing jurisdictions (in this case Virginia), the disciplinary rules applicable in that jurisdiction (i.e., the Virginia rules) apply to the disciplinary proceeding in the District of Columbia.
  7. 773 A.2d at 1027 (emphasis in the original).
  8. Id.
  9. Id. at 1032
  10. Id. at 1030
  11. Id. at 1030, 1031.

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.