Bar Counsel: "A" Is for Affidavit, "N" Is for Nunc Pro Tunc, and "R" Is for Reinstatement
From Washington Lawyer, October 2004
By Joyce E. Peters
“Respondent’s attention is drawn to the provisions of D.C. Bar R. XI, § 14 and § 16(g).”1
“We direct respondent’s attention to the requirements of D.C. Bar R. XI, § 14 (g), and their effect on her eligibility for reinstatement. See D.C. Bar R. XI, § 16(c).”2 “For the purpose of seeking reinstatement to the Bar, respondent’s suspension shall not begin until he complies with the affidavit requirements of D.C. Bar Rule XI, § 14(g); see also Rule XI, § 16(c).”3
Many reported disciplinary decisions of the District of Columbia Court of Appeals end with these words. Some decisions also grant lawyers nunc pro tunc treatment for their disciplinary suspensions. So what is nunc pro tunc treatment, and why do some cases have it but others do not?
Nunc pro tunc, which in Latin essentially means “then for now,” is a type of retroactive date determination used by the court in cases involving suspensions or disbarment. In disciplinary cases the court’s grant of nunc pro tunc treatment is an exception to the general rule that discipline is imposed prospectively. When discipline is imposed nunc pro tunc, the effective date of the discipline is determined to be sometime in the past and the suspension or disbarment period is computed from that date forward. Nunc pro tunc treatment occurs most often in reciprocal matters, under D.C. Bar Rule XI, § 11, where it is favored, but is also used in other disciplinary cases in which the lawyer has been temporarily suspended.
Nunc pro tunc treatment is an important benefit to a lawyer facing a suspension or disbarment. By starting the suspension or disbarment period in the past, as opposed to when the final order of discipline is entered, the lawyer essentially gets a credit toward the period of the suspension or disbarment for any period of temporary suspension. It is rather like “time served” in the criminal context. Essentially, nunc pro tunc treatment hastens the passage of the suspension or disbarment period and makes the lawyer eligible more quickly for reinstatement.4
Determining which lawyers are eligible for nunc pro tunc treatment involves an evaluation of the lawyer’s conduct: whether the lawyer promptly reported the foreign discipline or a criminal conviction to Bar Counsel, whether the lawyer ceased practicing in the District of Columbia, and above all, whether the lawyer complied with the court’s affidavit rule. In one sense, it is a question of affidavits—affidavits that the court requires of suspended and disbarred lawyers to ensure that the court, the public, and the bar are protected and put on notice when a suspensory sanction is imposed. The date that the required affidavit or affidavits are properly filed often determines when a suspensory sanction begins for purposes of when the lawyer becomes eligible for reinstatement.
Failing to file the affidavit required by the court rule means that the period of suspension or disbarment does not begin to run for purposes of reinstatement eligibility.5 Consequently, a 30-day suspension could continue indefinitely if the lawyer fails to satisfy the affidavit requirement. This is one of the technical aspects of disciplinary law that every member of the D.C. Bar should understand, particularly lawyers facing serious discipline and their counsel.
The basic questions about affidavits and disciplinary suspensions are:
1. When does a lawyer’s disciplinary suspension begin, and when does the suspension period begin for purposes of reinstatement eligibility (these can be two different dates!)?
2. What are the affidavit requirements and how do they affect eligibility for reinstatement?
3. What is a Goldberg6 affidavit, and when does a lawyer qualify for nunc pro tunc treatment in determining the starting date of the suspension and the eligibility date for reinstatement?
In general, court-ordered disciplinary suspensions are prospective. Section 14(f) of D.C. Bar Rule XI provides: “Except as provided in sections 10, 11 and 13 of this rule, an order of disbarment or suspension shall be effective thirty days after entry unless the Court directs otherwise.” This means that a D.C. lawyer involved in a disciplinary proceeding here normally may continue his or her existing practice for 30 days after a suspension order is entered. The court sometimes directs otherwise (including immediate imposition of the sanction), but this is the general rule. The lawyer may not accept new legal work after the suspension order is entered, but the 30-day delay in the effective date of the suspension is intended to give the lawyer time to complete pending matters to avoid prejudicing a client and to aid the lawyer in shutting down his or her practice in an orderly manner.7 Once the suspension order is effective, the lawyer may not legally practice law8 and is subject to prosecution for criminal contempt if he or she continues to do so.9
Included in the suspension order is language like that quoted at the beginning of this article referring to the affidavit and other requirements in D.C. Bar Rule XI, §§ 14 and 16.10 Rule XI, § 14(a)–(c), requires attorneys ordered disbarred or suspended to give prompt notice of the order of disbarment or suspension to (1) all clients in nonlitigated matters, (2) all clients in litigated matters or administrative proceedings in a D.C. court or agency, and (3) all adverse parties in litigated matters or administrative proceedings in a D.C. court or agency. In nonlitigated matters the lawyer must also advise that he or she will be unable to act as an attorney after the effective date of the order and that clients should seek legal advice elsewhere. In litigated matters the lawyer must advise of substitute counsel or, as a last resort, simply move to withdraw. When notifying adverse parties of the lawyer’s inability to serve, the lawyer must also include information about the mailing addresses of clients who are parties in proceedings to facilitate contact by adverse parties.
In addition to the notice requirements, section 14(d) requires the lawyer to deliver promptly all papers and property to clients and to alert those clients of any urgency in their obtaining the papers or property. These requirements obviously are intended to prevent injury to any of the clients of the lawyer soon to be suspended or disbarred.
The affidavit requirement in section 14(g) serves to verify to the court that the lawyer has completed all of the court-imposed requirements of notification and transfer of responsibility for current clients. Section 14(g) provides:
Within ten days after the effective date of an order of disbarment or suspension, the disbarred or suspended attorney shall file with the Court and the Board an affidavit:
(1) Demonstrating with particularity, and with supporting proof, that the attorney has fully complied with the provisions of the order and with this rule;
(2) Listing all other state and federal jurisdictions and administrative agencies to which the attorney is admitted to practice; and
(3) Certifying that a copy of the affidavit has been served on Bar Counsel.
The affidavit shall also state the residence or other address of the attorney to which communications may thereafter be directed. The Board may require such additional proof as it deems necessary. In addition, for five years following the effective date of a disbarment or suspension order, a disbarred or suspended attorney shall continue to file a registration statement in accordance with Rule II, stating the residence or other address to which communications may thereafter be directed, so that the attorney may be located if a complaint is made about any conduct of the attorney occurring before the disbarment or suspension. See also section 16(c).
Rule 9.10 of the Board on Professional Responsibility’s rules discusses this affidavit requirement and details exactly what the affidavit should contain to meet the court’s requirements.11 Board Rule 9.10(b) permits Bar Counsel to file a notice of noncompliance when either the lawyer has failed to file an affidavit or the affidavit is insufficient. The affidavit, however, is a court-imposed requirement, and the court has stated that Bar Counsel’s failure to file such a notice does not affect the lawyer’s responsibility to file a sufficient affidavit.12 Bar Counsel does, however, routinely correspond with lawyers subject to suspension or disbarment orders to remind them of their duty to comply with the court’s section 14(g) requirement.
In general, the court has required full compliance with this affidavit requirement, although it has recognized that “compliance with the requirements of section 14(f) [now section 14(g)] that is less than technically perfect can
suffice. . . .”13 For example, in In re Friedman14 the court accepted an affidavit that was properly filed with the court but not the board. And in In re Breiner15 the court accepted an affidavit that was properly filed with the board but not the court. In other cases the court has permitted attorneys to correct small deficiencies in their original affidavits by filing supplemental affidavits, thus enabling these attorneys to reap the benefit of nunc pro tunc treatment back to the filing of their original affidavits.16 In contrast with these errors, however, the failure to file the affidavit within the required 10-day period will affect when the discipline is effective for reinstatement purposes. For an affidavit filed after the required 10-day period, the discipline is effective when the affidavit is filed, not earlier.17
Most often the issue of a suspension’s effective date arises when the case involves one of the three enumerated exceptions identified in section 14(f), that is, cases arising under section 10, 11, or 13. Section 10, which describes disciplinary proceedings based upon conviction of a crime, requires an immediate temporary suspension in a case involving a felony or other serious crime.18 Section 11, reciprocal discipline, also requires an immediate temporary suspension when the lawyer has been suspended or disbarred by another disciplining court. Section 13 concerns attorneys found to be mentally incompetent or incapacitated and directs that suspensions ordered by the court in such cases are “effective immediately.”19 Few cases have arisen under section 13, but many cases arise under sections 10 and 11.
When final discipline involving a suspension or disbarment is imposed under either section 10 or section 11, the question is when the sanction should be effective. If the case has not involved a temporary suspension (for example, the conviction involves a misdemeanor or nonserious crime, or the discipline imposed in the foreign jurisdiction does not involve a suspension), the court will decide when the effective date will be—either immediately or at some specified date included in the order.
But what if there has been a temporary suspension? There are several possible points in time at which the suspension could be considered effective: the date the final suspension or disbarment order is issued; some earlier date when either the temporary suspension was ordered or the required section 14(g) affidavit was filed; the date a delinquent section 14(g) affidavit was or is filed; or in a reciprocal case, the date that the discipline was imposed in the foreign jurisdiction. What is the appropriate starting date? Should the lawyer be afforded nunc pro tunc treatment?
In criminal conviction cases under section 10, when a temporary suspension has been ordered, the lawyer may get credit for the entire period of the temporary suspension if he or she files a timely and sufficient section 14(g) affidavit within 10 days of the court’s order.20 If the lawyer files the affidavit late, he or she may still get credit for the period of the temporary suspension subsequent to the filing of the affidavit.21 If the lawyer totally fails to file the required section 14(g) affidavit, the suspension will begin to run for reinstatement purposes only after a sufficient section 14(g) affidavit is filed.22
Reciprocal matters are handled slightly differently. When Bar Counsel files the certified copy of a foreign disciplinary order involving a suspension or disbarment, as required under D.C. Bar Rule XI, § 11(b), the court will enter an immediate order temporarily suspending the lawyer under section 11(d). That order will direct the lawyer to comply with the requirements in D.C. Bar Rule XI, § 14, thus mandating the filing of an affidavit under section 14(g). When the executive attorney for the Board on Professional Responsibility receives a copy of the court’s order, she notifies the respondent lawyer in writing of the need to file not only the section 14(g) affidavit in response to the court’s order, but also a Goldberg affidavit. The Goldberg affidavit is in addition to the section 14(g) affidavit, and should be filed within 10 days of the board’s letter.
In In re Goldberg the issue was whether the reciprocal sanction imposed in the District of Columbia could be made retroactive so that it would run concurrently with the suspension imposed in Maryland. The court noted the language in what now is section 14(f) concerning prospective imposition of discipline, but concluded that an exception to the prospective imposition rule was appropriate because of the presumption favoring identical discipline in reciprocal matters. Regarding reciprocal matters, the court stated, “[W]e anticipate that concurrency will be the norm.” The court then discussed when a concurrent reciprocal sanction would be appropriate, stating:
Whether a particular suspension should be concurrent will depend to a considerable extent on the actions of the attorney involved. If the attorney “promptly” notifies Bar Counsel of any professional disciplinary action in another jurisdiction, as he or she is required to do . . . , and if the attorney voluntarily refrains from practicing law in the District of Columbia during the period of suspension in the original jurisdiction, then there will probably be no reason to aggravate the discipline by making the District of Columbia suspension wholly or partially consecutive to that imposed elsewhere. On the other hand, if the attorney unreasonably delays in notifying Bar Counsel that he or she has been disciplined in another state, or if the attorney engages in the practice of law in the District of Columbia while suspended elsewhere, then a more severe sanction may be justified.23
Board Rule 8.5(b) further clarifies the criteria for nunc pro tunc treatment of a reciprocal sanction. If a respondent lawyer notifies Bar Counsel of the foreign discipline and establishes to the satisfaction of the board that he or she has voluntarily ceased practice in the District of Columbia, the board “will favorably consider recommending to the Court that the effective date of any suspension or disbarment be imposed nunc pro tunc to the date respondent voluntarily ceased the practice of law in the District of Columbia.” Board Rule 8.5 makes clear that the lawyer must also comply with the requirements in D.C. Bar Rule XI, § 14, as a prerequisite for nunc pro tunc consideration by the board.
Thus, there are four steps that the lawyer facing a reciprocal suspension or disbarment should do to obtain nunc pro tunc treatment of the sanction: (1) promptly notify Bar Counsel of the foreign discipline, (2) voluntarily cease practice in the District of Columbia, (3) file the Goldberg affidavit with the board attesting to the first two steps, and (4) file the required section 14(g) affidavit with the court and the board, with service on Bar Counsel. Failure to complete any of these steps may preclude nunc pro tunc treatment.
As previously discussed, total failure to file the required section 14(g) affidavit with the court and the board, with service on Bar Counsel, is an absolute bar to nunc pro tunc treatment. This is the worst possible case, as the reciprocal discipline will only become effective for reinstatement purposes when that affidavit is ultimately filed.24 Failure to notify Bar Counsel promptly of the discipline will also preclude imposition of concurrent suspensory sanctions.25 In such a case, the suspension would run either from the date of the temporary suspension, if a timely section 14(g) affidavit is filed, or from the date of the filing of the delinquent section 14(g) affidavit. Failure to cease practice negates the need for identical concurrent reciprocal discipline, as the lawyer has had the benefit of practicing here during the period of suspension in the other jurisdiction, and the reason for the presumption favoring identical discipline no longer exists. Moreover, granting the lawyer credit toward a suspension when he or she has not actually been suspended makes no sense. Thus, nunc pro tunc treatment may or may not be granted, or the court may impose the sanction prospectively but give credit if there was any period of suspension.26 Finally, failure to file a timely Goldberg affidavit with the board may also bar nunc pro tunc treatment, as the board needs some means to determine that the lawyer has ceased practice in the District of Columbia.
What is clear from this discussion is that tardy or incomplete compliance with the affidavit requirements of D.C. Bar Rule XI, § 14(g), the failure to report foreign discipline or a criminal conviction to Bar Counsel, and the failure to understand the rationale behind the Goldberg affidavit can have significant adverse consequences to a lawyer facing suspension or disbarment. Understanding these technical nuances of discipline, how the affidavits affect nunc pro tunc treatment and ultimately reinstatement, is important not only to any D.C. lawyer facing suspension or disbarment for ethical misconduct, but also to any lawyer serving as respondent’s counsel in disciplinary proceedings.
- In re Charles E. McClain, Sr., No. 03-BG-285 (D.C. Aug. 5, 2004) (per curiam).
- In re Theodora A. Charles, No. 03-BG-800 (D.C. Aug. 5, 2004) (per curiam).
- In re Marsden S. Coates, No. 03-BG-1084 (D.C. Aug. 5, 2004) (per curiam).
- Recently, in In re Julia A. Soinenen, No. 03-BG-771 (D.C. July 15, 2004), the court analyzed whether an attorney’s voluntary and unsupervised “self-suspension” while disciplinary proceedings were pending against her would make her eligible to apply for reinstatement earlier than would otherwise be appropriate. The court concluded, after a lengthy analysis of the facts and the rationale behind affording nunc pro tunc treatment in reciprocal cases, that she would not get credit for her self-suspension. The court imposed discipline prospectively.
- In In re Gardner, 650 A.2d 693, 697–98 (D.C. 1994), the court stated, “If a lawyer fails to file the section 14 affidavit, he is generally not eligible for reinstatement until a period of time equal to the period of suspension has elapsed following his compliance with section 14.” Similarly, in In re Slosberg, 650 A.2d 1329, 1332 (D.C. 1994), the court stated, “This court has made it clear that . . . this court will enforce the requirement of D.C. Bar R. XI, § 16(c) that a suspended attorney shall not be eligible for reinstatement until a period of time equal to the period of suspension shall have elapsed following the attorney’s compliance with § 14.” (Citations omitted.)
- In re Goldberg, 460 A.2d 982 (D.C. 1983).
- Section 14(f) provides that the lawyer may not accept new retainers or engagements after entry of the order, but “during the period between the date of entry of the order and its effective date, the attorney may conclude other work on behalf of a client on any matters which were pending on the date of entry.”
- D.C. App. Rule 49(a) provides: “No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar. . . .” (Emphasis added.)
- D.C. App. Rule 49(e)(2) provides that violations of Rule 49, that is, engaging in the unauthorized practice of law, “shall be punishable by the Court of Appeals as contempt and/or subject to injunctive relief.” The court has convicted several lawyers of criminal contempt for practicing law despite a court order disbarring or suspending them. In re Ryan, 823 A.2d 509 (D.C. 2003) (lawyer suspended for four months with a fitness requirement for numerous disciplinary violations arising from her immigration practice, then convicted of criminal contempt for practicing while suspended, and sentenced to a period of confinement for her contempt conviction); In re Burton, 614 A.2d 46 (D.C. 1992).
- D.C. Bar Rule XI, § 16, deals with reinstatement and the reinstatement process for lawyers who have been disbarred, suspended for a disability, or suspended with a fitness requirement.
- Board Rule 9.10(a) provides that the affidavit
shall include, to Bar Counsel’s reasonable satisfaction, the following: (a) all steps taken by the attorney to comply with the disbarment or suspension order; (b) all other steps taken to comply with Section 14 of Rule XI, including without limitation (i) photocopies of all notices (including return receipts), motions to withdraw, and letters of transmittal (or offers to return) involving papers or other property to which clients of the attorney are entitled; (ii) the attorney’s current residence or other address where communications may be directed to him; (iii) the attorney’s understanding of the continuing obligation during disbarment or suspension for a period of up to five years to file both annual and supplemental registration statements in accordance with D.C. Bar R. II, § 2 (with copies thereof served on Bar Counsel) listing such attorney’s residence or other address where communications may be directed to him; (iv) the attorney’s understanding of the continuing obligation to keep and maintain records (including copies of all pertinent documents) showing the steps taken by such attorney to comply with Section 14 of Rule XI; and (v) the attorney’s understanding that if the affidavit required by this Board Rule is rejected by Bar Counsel in a Notice of Non-Compliance . . . , the period of disbarment or suspension may be extended by the Court.
- In re Bowser, 771 A.2d 1002 (D.C. 2001) (per curiam). In this per curiam opinion, the court attached
relevant portions of the board’s report “because it demonstrates cogently the importance of the affidavit requirement and why respondent’s successive failures to comply with it cannot be minimized.” Id. at 1003. The board report shows what can go wrong when a lawyer attempts unsuccessfully to comply with the affidavit requirement.
- In re Slosberg, 650 A.2d 1329, 1333 (D.C. 1994). Noting that it had permitted retroactive treatment with less than technically perfect compliance with the affidavit requirements, the court concluded that Slosberg’s error was not just technical, as he had failed to comply fully, by omitting information concerning clients and other jurisdictions where he was admitted. The court denied nunc pro tunc treatment and delayed the start of his three-month suspension for a year pending his full compliance with section 14(g).
- 843 A.2d 737, 738 n.2 (D.C. 2004) (per curiam).
- 742 A.2d 886, 887 n.2 (D.C. 1999) (per curiam).
- In In re James, 748 A.2d 923 (D.C. 2000) (per curiam), the court permitted the lawyer (who was consenting to disbarment) to file a supplemental affidavit demonstrating compliance with the notification requirements and listing the other jurisdictions where he was licensed so that he could benefit from nunc pro tunc treatment based on the date of his original affidavit in computing his eligibility for reinstatement. Supplemental affidavits were also permitted in In re O’Malley, 683 A.2d 464 (D.C. 1996) (per curiam) (attorney disbarred under D.C. Code § 11-2503(a) for criminal conviction involving moral turpitude permitted to file supplemental affidavit so that the effective date of his disbarment would begin based on the filing of his original affidavit); In re Canatella, Bar Docket No. 365-99 (Board on Prof’l Responsibility Sept. 22, 2000), 769 A.2d 142 (D.C. 2001) (per curiam) (court adopts board recommendation for nunc pro tunc treatment to date of original affidavit, as supplemental affidavit clarified that attorney had no D.C. matters when suspended in California); and In re Kaiser, Bar Docket No. 166-96 at 2–3 (Board on Prof’l Responsibility July 22, 1990), board recommendation adopted, 681 A.2d 1166 (D.C. 1996) (per curiam) (attorney consenting to disbarment permitted to cure deficiency of unnotarized, otherwise complete, affidavit by submission of a supplemental notarized version).
- In re Glass, 805 A.2d 236 (D.C. 2002); In re McDonough, 792 A.2d 245, 246 n.2 (D.C. 2002) (per curiam); In re Slosberg, 50 A.2d at 1331–33.
- The definition of serious crime is contained in D.C. Bar Rule XI, § 10(b).
- For example, in In re Cornish, 691 A.2d 156 (D.C. 1997), the court ordered an immediate indefinite suspension for disability with nunc pro tunc treatment to the date the Rule XI, § 14(g), affidavit was filed, but with reinstatement to be governed by D.C. Bar Rule XI, § 13(g).
- In re Dechowitz, 741 A.2d 1061 n.1 (D.C. 1998) (per curiam) (affidavit timely filed when filed within period of extension requested by lawyer; full credit for period of temporary suspension).
- In re Ventura, 799 A.2d 1200, 1201 (D.C. 2002) (per curiam); In re Spiridon, 755 A.2d 463, 468 n.8 (D.C. 2000) (court adopts board’s recommendation, making suspension effective when section 14(g) affidavit filed).
- In re Dunbar, 810 A.2d 917, 918 (D.C. 2002) (per curiam).
- In re Goldberg, 460 A.2d at 985 (emphasis added).
- In In re Coates, No. 03-BG-1084 (D.C. Aug. 5, 2004) (per curiam), the full import of the failure to file the required affidavit can be seen. Coates was suspended in Maryland on September 8, 2003, for one year on consent, did not report his discipline to Bar Counsel, did not file the required affidavit, and did not participate in the proceedings before the board. He was temporarily suspended by the court on October 16 based on the Maryland suspension. In the final order imposing identical reciprocal discipline, the court ordered him suspended for one year. The court then stated, “For the purpose of seeking reinstatement to the Bar, respondent’s suspension shall not begin until he complies with the affidavit requirements of D.C. Bar Rule XI, § 14(g); see also Rule XI, § 16(c). Until then, he shall remain under the temporary suspension imposed by the order of this court on October 16, 2003.” Slip op. at 3.
- In re Gardner; In re Saboorian, 770 A.2d 78, 79 n.2 (D.C. 2001).
- In In re Charles E. McClain, Sr., No. 03-BG-285 (D.C. Aug. 5, 2004) (per curiam), the court imposed a six-month reciprocal sanction on a lawyer for negligent misappropriation of funds. The lawyer had been suspended in Maryland for only 30 days. The lawyer had self-reported his conduct to Bar Counsel. The lawyer also had filed a timely section 14(g) affidavit and an amended affidavit satisfying the Goldberg requirements. Upon his readmission to the Maryland bar, the court lifted his temporary suspension here. The court declined to give nunc pro tunc treatment, because “[t]o run the suspension entirely nunc pro tunc . . . would mean that the suspension would not be running concurrently with any suspension actually in effect at the time, apart from [the short period prior to the court’s lifting of the temporary suspension order].” Instead the court imposed the suspension prospectively, but gave the attorney credit for the period of the temporary suspension that he had already served.
Disciplinary Actions Taken by the Board on Professional Responsibility
In re Gene P. Belardi. Bar No. 218446. July 30, 2004. The board recommends that the court suspend Belardi for one year. Belardi was convicted in the United States District Court for the District of Columbia of three felony counts of making false statements to a government agency in violation of 18 U.S.C. § 1001, thus violating Rules 3.3(a)(1) and 8.4(b)–(d).
In re William Bingham. Bar No. 228064. July 23, 2004. The board ordered Bar Counsel to informally admonish Bingham for failing to file a petition for probate or to advance the probate of an estate over the course of approximately four years and failing to withdraw from a matter when his physical or mental condition materially impaired his ability to represent his clients, in violation of Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), and 1.16(a)(2).
In re Ivan Bogachoff. Bar No. 452152. July 28, 2004. The board recommends that the court disbar Bogachoff. Bogachoff was convicted in the United States District Court for the District of Columbia of one count of bank fraud, in violation of 18 U.S.C. § 1344, a crime involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).
In re Tonya L. Daughtery. Bar No. 456827. July 27, 2004. The board recommends that the court disbar Daughtery. Daughtery was convicted in the Circuit Court of Fairfax County, Virginia, of two counts of felony embezzlement in violation of Virginia Code § 18.2-111, crimes involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).
In re William B. Devaney. Bar No. 30189. July 30, 2004. The board recommends that the court disbar Devaney. Devaney, while representing a client in an estate matter, conveyed substantial gifts to himself and his family under the terms of three codicils he drafted and executed, in violation of Rule 1.8(b); engaged in the unauthorized practice of law by drafting testamentary instruments in Virginia where he was not licensed, in violation of Rule 5.5(a); and failed to represent his client with the thoroughness and preparation appropriate in advising a client with a multi-million-dollar estate, in violation of Rule 1.1(a). Three members of the board dissented from the finding of a Rule 1.1(a) violation, but concurred with the board’s other findings and its recommendation that Devaney be disbarred.
In re Laurence A. Elgin. Bar No. 159582. July 30, 2004. The board recommends that the court suspend Elgin for six months and order restitution to the complainant in the amount of $5,000 plus interest at the legal rate of 6 percent from August 14, 1998, as a condition of reinstatement. While representing a client on issues stemming from her domestic relations matter, Elgin agreed to a flat fee payment of $10,000, and subsequently an additional $10,000, with $4,000 to be paid through the authorized use of his client’s credit card and the remaining $6,000 to be credited as repayment for a loan Elgin had previously procured from his client. Thereafter Elgin made charges on the credit card in excess of his legal fees, and ultimately the credit card company filed suit against the client for nonpayment of the credit card balance. Elgin failed to consult his client, who was unaware of the lawsuit, and entered into a settlement without advising the client or giving her the opportunity to determine whether her interests were sufficiently protected. The client ultimately settled the matter directly by repaying the credit card company $5,000. The board found violations of Rules 1.2(a), 1.3(b)(2), 1.4(a), 1.4(b), 1.5(b), 1.7(b)(4), 1.8(a), 8.4(c), and 8.4(d), concluding that though Elgin had been charged under both D.C. and Virginia rules, the board need not decide which rules to apply because of their similarities in application in this matter.
In re Howard L. Greenspan. Bar No. 266668. July 30, 2004. In a reciprocal matter from Massachusetts, the board recommends that the court impose nonidentical discipline and suspend Greenspan for 30 days. Greenspan, while representing a client in two personal injury matters, failed to safeguard a copy of his client’s contingent fee agreement, in violation of Massachusetts Disciplinary Rule (DR) 2-106(C); failed in the first matter to prosecute his client’s action, causing it to be dismissed; and failed in the second matter to file suit on the action within the three-year statute of limitations, in violation of DR 6-101(A)(3) and DR 7-101(A)(1)–(3). Greenspan also failed to comply with his client’s requests for information regarding the two matters and failed to forward the client file to successor counsel, in violation of DR 2-110(A)(4) and Rule 1.16(d) of the Massachusetts Rules of Professional Conduct (MRPC). Lastly, Greenspan failed to cooperate with the Massachusetts Bar Counsel’s investigation and to comply with a subpoena to compel his appearance at a meeting, in violation of Massachusetts Rule 4:01, § 3(1)(b), and MRPC Rule 8.4(g). The board concluded that Greenspan violated Rules 1.3(a), 1.3(b), 1.3(c), 1.16(d), 8.1(b), and 8.4(d) of the D.C. Rules of Professional Conduct. Three members of the board dissented, unable to agree with the board that the Commonwealth of Massachusetts Board of Bar Overseers of the Supreme Judicial Court is a “disciplining court” as defined in D.C. Bar Rule XI, § 11(a). The dissenters would dismiss the reciprocal proceeding, leaving Bar Counsel the option of instituting an original proceeding should she deem it warranted. The Board of Overseers had publicly reprimanded Greenspan based on a joint stipulation of the parties.
In re Bridgette Harris-Smith. Bar No. 413256. July 29, 2004. In a consolidated case involving reciprocal matters from the United States Bankruptcy Court for the Eastern Division of Virginia and the Court of Appeals of Maryland, the board recommends that the court impose identical reciprocal discipline and disbar Harris-Smith. The bankruptcy court permanently barred Harris-Smith from practice and ordered her to refund $600 in attorney fees and pay a monetary sanction of $1,500. Harris-Smith, while representing a client in a bankruptcy matter, failed to appear at several hearings, failed to provide useful advice, abandoned her client, and failed to appear at hearings to determine the reasonableness of her fees and in response to a show-cause order why she should not be barred from further practice or otherwise sanctioned. The Maryland court disbarred Harris-Smith based on a joint petition by consent for having engaged in and been convicted of the unauthorized practice of law in Maryland with two Maryland residents, in violation of Rules 5.5 and 8.4(b) of the Maryland Rules of Professional Conduct.
In re J. Sinclair Long. Bar No. 433372. July 29, 2004. The board recommends that the court suspend Long for 30 days and require him to attend three hours of continuing legal education courses in legal ethics and professional responsibility. Long failed to provide a writing setting forth the basis or rate of his fee for preparing a will, in violation of Rule 1.5(b). He also violated Rules 1.1(a) and 1.1(b) by failing to evaluate the testator’s mental capacity or to conform to the standard of care used by other lawyers preparing wills for testators with questioned competency. In addition, Long violated Rules 1.7(b)(2) and 1.7(c) by failing to seek the testator’s waiver for a conflict of interest that resulted from Long’s drafting the will, which left the testator’s entire estate to her caregiver, another client whom Long had represented in a case brought by Adult Protective Services challenging his care of the testator and his management of her finances.
In re Robert W. Mance. Bar No. 285379. July 23, 2004. The board recommends that the court suspend Mance for 30 days but stay the suspension in favor of one year of unsupervised probation with the additional condition that he attend six hours of continuing legal education courses in ethics and law office management. While representing a client on appeal of a criminal matter, Mance failed to assert and preserve his client’s rights, in violation of Rule 1.1(a); failed to serve his client with appropriate skill and care and take corrective action when he missed a deadline, in violation of Rule 1.1(b); failed to represent his client zealously and diligently, in violation of Rule 1.3(a); failed to seek the lawful objectives of his client by taking necessary action once notified that the appeal was untimely, in violation of Rule 1.3(b)(1); failed to communicate reasonably with his client, in violation of Rule 1.4(a); failed to withdraw as counsel after his client terminated the representation, in violation of Rule 1.16(a)(3); and engaged in conduct that seriously interferes with the administration of justice by failing to take action and provide information as directed by the court, in violation of Rule 8.4(d).
In re MaryRose O. Nwadike. Bar No. 455695. July 30, 2004. The board ordered Bar Counsel to issue Nwadike an informal admonition. Nwadike, while retained to represent parents on behalf of their son in a medical malpractice matter, failed to serve her clients with appropriate skill and care by neglecting to fulfill her court-ordered discovery obligations regarding essential expert opinion, thereby placing her clients’ case in jeopardy, in violation of Rule 1.1(b).
In re Jacob Q. Owusu. Bar No. 442164. July 30, 2004. The board recommends that the court suspend Owusu for 60 days with fitness and order him to make restitution to his client in the amount of $3,500 plus interest. Owusu, while retained to represent a client in an immigration matter, failed to provide competent representation, to serve his client with appropriate care by not appearing at an Immigration and Naturalization Service interview with his client, and to use the legal knowledge and skill necessary to properly pursue his client’s legal interests, resulting in his client’s arrest and detainment, all in violation of Rules 1.1(a) and 1.1(b); failed to represent his client zealously and diligently within the bounds of the law, in violation of Rule 1.3(a); failed to seek the lawful objectives of his client and to avoid prejudice or damage to his client by neglecting to properly pursue his client’s adjustment-of-status application to avoid known adverse consequences, in violation of Rules 1.3(b)(1) and 1.3(b)(2); and intentionally failed to keep his client reasonably informed about the status of his matter, in violation of Rule 1.4(a).
In re David V. Peery. Bar No. 442089. July 30, 2004. On remand from the court, the board ordered that the petition against Peery be dismissed.
In re T. Carlton Richardson. Bar No. 198523. July 30, 2004. The board recommends that the court deny Richardson’s petition for reinstatement.
In re Charles W. Schoeneman. Bar No. 112615. July 30, 2004. The board recommends that the court suspend Schoeneman for four months. This matter consolidated a reciprocal matter from the United States District Court for the District of Columbia with an unrelated original matter arising from Schoeneman’s representation of three clients. The board concluded that Schoeneman should not be subject to reciprocal discipline for the district court’s reprimand for Schoeneman’s failure to notify that court of an earlier revocation of his license. In the original matter, Schoeneman, while engaged in representing three clients in their employment matters in federal court, failed to provide competent representation, in violation of Rule 1.1(a); failed to represent his clients zealously and diligently within the bounds of the law, in violation of Rule 1.3(a); intentionally failed to seek lawful objectives of his clients through reasonably available means, resulting in intentional prejudice or damage to the clients, in violation of Rules 1.3(b)(1) and 1.3(b)(2); failed to keep clients reasonably informed about the status of their matters and promptly comply with reasonable requests for information, in violation of Rule 1.4(a); engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c); and seriously interfered with the administration of justice in connection with two client representations, in violation of Rule 8.4(d). One dissenting member of the board concurred in the board’s affirmative violation findings and sanction recommendation, but concluded that Schoeneman’s failure to notify the court would violate Rule 8.4(d), proscribing misconduct that seriously interferes with the administration of justice, and thus could be a basis for reciprocal discipline.
In re Winston W. Tsai. Bar No. 130120. July 27, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose functionally identical reciprocal discipline and publicly censure Tsai. The Maryland Court of Appeals reprimanded Tsai based on a joint petition for reprimand by consent stemming from allegations that he engaged in misconduct in his representation of two clients in separate immigration matters. In one matter, Tsai failed to explain to his client the consequences of consent to voluntary departure and then failed to file a new petition for adjustment of status in a timely manner. In the second matter, Tsai failed to file a timely motion to reopen his client’s case. Tsai acknowledged that in the two immigration cases he failed to act with competence and diligence, failed to communicate adequately with his clients, and engaged in conduct prejudicial to the administration of justice, in violation of Rules 1.1, 1.3, 1.4, and 8.4(d) of the Maryland Rules of Professional Conduct.
Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Bernard Bettis. Bar No. 211771. August 5, 2004. The court publicly censured Bettis and ordered that he be placed on probation for two years, under the supervision of a practice monitor, with the requirement that he promptly inform his clients of his probation and pay restitution in the amount of $385 plus interest; and file a statement with the court and the board agreeing to the conditions of probation. In a case involving two separate complaints that were consolidated in a single petition, Bettis failed to record a contingent fee agreement in writing, in violation of Rule 1.5(c), and failed to promptly disburse settlement funds to satisfy a third party’s lien and placed entrusted funds into an account not designated as an escrow or trust account over which he had no signatory authority, in violation of Rules 1.15(b) and 1.17(a).
In re Robert E. Cappell. Bar No. 321265. July 22, 2004. The court disbarred Cappell for intentional misappropriation, in violation of Rules 1.15(a) and 1.15(b), but stayed the sanction and placed Cappell on probation for three years, subject to conditions recommended by the board in its report and recommendation, in light of Cappell’s entitlement to Kersey-style mitigation for depression at the time of the misconduct.
In re Theodora A. Charles. Bar No. 411049. August 5, 2004. On the basis of a board report consolidating two matters, the court accepted the board’s findings and suspended Charles for 30 days, with her reinstatement conditioned upon a showing of fitness to practice law and her response to Bar Counsel’s inquiries in one matter. In the first matter, the board had found that Charles failed to provide competent or prompt representation to her client and failed to appear in court for trial, resulting in the dismissal of her client’s case with prejudice, in violation of Rules 1.1(a), 1.3(a), 1.3(c), 1.6(a)(1), and 8.4(d). In the second matter, Charles failed to cooperate with Bar Counsel’s investigation of a bar complaint and a board order, in violation of Rules 8.1 and 8.4(d) and D.C. Bar Rule XI, § 2(b)(3).
In re Marsden S. Coates. Bar No. 449882. August 5, 2004. In a reciprocal matter from Maryland, the court imposed identical reciprocal discipline and suspended Coates for one year. The Maryland Court of Appeals suspended Coates based on a joint consent petition for misconduct in two different matters. In the first matter, Coates failed to return his client’s numerous phone calls, to comply with his client’s reasonable requests for information, to supervise his nonlegal staff adequately, and to advise his client of a deportation hearing. In the second matter, Coates failed to deposit his client’s retainer in a properly designated escrow account and failed to communicate with his client about the status of her case.
In re John H. Kitchings Jr. Bar No. 415011. July 22, 2004. The court suspended Kitchings for 18 months, with reinstatement conditioned upon fitness. Kitchings engaged in neglect of 15 client matters, including failing to communicate; incompetence; abandonment; failing to surrender files to clients after discharge; failing to represent the clients with diligence and zeal; failing to act with reasonable promptness in representing the clients; failing to keep the clients reasonably informed about their matters; failing to notify promptly of his receipt of funds and to deliver to his clients the funds to which they were entitled; and failing to take timely steps upon termination of representation to protect the client’s interests.
In re Charles E. McClain Sr. Bar No. 439941. August 5, 2004. In a reciprocal matter from Maryland, the court imposed nonidentical discipline and suspended McClain for six months for misappropriation. The Maryland Court of Appeals had suspended McClain for 30 days for writing a check on a trust account in Maryland that reduced its balance below the amount of escrowed funds required to be held for a third party. Although McClain reported his Maryland discipline to Bar Counsel and the board recommended nunc pro tunc treatment, the court imposed the suspension prospectively with credit to McClain for the period of his temporary suspension.
In re Lewis A. Rivlin. Bar No. 10744. August 5, 2004. The court adopted the board’s findings of fact and analysis in a decision involving five consolidated matters and disbarred Rivlin. The board found that Rivlin had engaged in misconduct involving commingling of client and third-party funds with his own; engaged in dishonesty by repeatedly and knowingly writing checks without sufficient funds; failed to maintain complete records for trust account funds; recklessly and/or intentionally misappropriated client funds; failed to deliver client funds and provide a complete accounting; failed to advise a client to seek independent legal advice before entering into business transaction with him; engaged in dishonesty by concealing his misappropriation; engaged in conduct that seriously interfered with the administration of justice by failing to respond to Bar Counsel’s inquiries or comply with the board’s order to respond; and failed to respond reasonably to an ethical complaint in writing. The court agreed with the board’s findings of violations of Rules 1.8(a), 1.15(a) and (b), and 8.4(c) and (d), and D.C. Bar Rule XI, § 2(b)(3). The court further ordered that Rivlin’s reinstatement be conditioned upon a showing of repayment of misappropriated funds with interest.
Informal Admonitions Issued by the Office of Bar Counsel
In re Harnam S. Arneja. Bar No. 946814. July 22, 2004. Bar Counsel issued Arneja an informal admonition for violating Rule 1.5(b) by failing to provide a writing setting forth the basis or rate of his fee while representing a client and the client’s family in an immigration matter.
In re Thomas J. Gagliardo. Bar No. 192575. July 22, 2004. Bar Counsel issued Gagliardo an informal admonition for violating Rules 1.4(a), 1.5(c), and 1.5(e) while representing a client in an employment matter, by failing to satisfy the requirements of a contingent fee agreement, by failing to provide a writing describing co-counsel’s responsibilities and the effect on the fee to be charged, and by failing to respond in a timely manner to his client’s inquiry regarding his failure to pay a third party the agreed-upon amount when the civil suit was settled.
In re Helena D. Mizrahi. Bar No. 425775. July 2, 2004. Bar Counsel issued Mizrahi an informal admonition for violating Rules 1.1(b), 1.3(a), 1.3(b)(2), 3.4(c), 3.4(e), 3.5(c), and 8.4(d) while representing a client in a civil matter, by engaging in a pattern of disruptive and disrespectful conduct before a trial judge; knowingly failing to obey court rulings and alluding to matters not reasonably believed to be supported by evidence; engaging in conduct intended to disrupt a tribunal; prejudicing or damaging a client; and lacking the required competence, diligence, and zeal when refusing to participate substantively in determining jury instructions.
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 firstname.lastname@example.org.