Washington Lawyer

Bar Counsel: Honesty Really Is the Best Policy (Honest!)

From Washington Lawyer, October 2007

By Bill Ross

Illustration by Mick Wiggins

“Honesty is the best policy,” Mark Twain once said, “when there is money in it.” Although Twain’s cynical pronouncement brings to mind the common, but hopefully misplaced, perception that lawyers only act in our own self-interest, it is also important to remember that honesty is always in a lawyer’s self-interest. Without honesty and integrity, an attorney jeopardizes all credibility with tribunals and opposing parties, imperils clients’ goals, and reduces the public’s trust in our profession. If you remain unconvinced, consider this: dishonesty, regardless of whether it is related to the practice of law, also constitutes a violation of the Rules of Professional Conduct and could put your very livelihood at risk.

So what is dishonesty, anyway? Rule 8.4(c) of the D.C. Rules of Professional Conduct prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation.” Prior cases have made it clear that Rule 8.4(c) encompasses both affirmative conduct and omissions evincing “a lack of honesty, probity or integrity in principle” or “lack of fairness and straightforwardness.”[1] Moreover, Rule 8.4(c) contains no caveats or exemptions for conduct outside the practice of law.[2] Disciplinary sanctions for violating Rule 8.4(c) “run the gamut from informal admonition to disbarment.”[3]

Three recent District of Columbia Court of Appeals cases specifically address dishonesty and highlight the all-too-frequent situation of an attorney compounding existing problems by engaging in dishonesty in an attempt to conceal other misconduct. In In re Pennington,[4] an attorney attempted to file a complaint in a personal injury matter but later learned that, due to a clerical error at the court, the case was not properly docketed. The attorney later agreed to dismiss the clients’ claims with prejudice after the limitations period had lapsed. Rather than advising her clients of the situation, the attorney created and presented a false settlement sheet and paid her clients slightly more than $4,000 of her own personal funds from the purported $10,000 settlement, taking into account deductions representing her legal fee and funds owed to the clients’ medical providers. The clients were unaware that this “settlement” was not being paid by the opposing party’s insurer or that they had a potential malpractice claim against their attorney. Rejecting the attorney’s argument that she had made significant reparative efforts in response to the dismissal of her clients’ case, the court approvingly quoted from the Maryland Court of Appeals’ determination that the attorney’s “attempt to purchase a plenary indulgence with her own money is more indicative of a selfish plan to conceal than a praiseworthy desire to ‘make the clients whole.’”[5] The court suspended the attorney from the practice of law for two years with a requirement that she demonstrate her rehabilitation as a condition of reinstatement.[6]

While the misconduct in Pennington arose in the context of an attorney–client relationship, the attorney in In re Scanio[7] engaged in dishonesty for direct pecuniary gain while representing himself in settlement negotiations relating to a minor traffic accident. In communications with the other driver’s insurance company, the attorney stated that he was a partner at a law firm, and that by multiplying his billable hourly rate by the number of hours of work he claimed to have missed due to the accident, he determined that the accident had caused him an economic loss of $23,034.50. In fact, the attorney was a salaried employee, and although the firm billed clients between $295 and $325 per billable hour for his services, he only was paid roughly $122 per hour worked. No reductions were made to his regular pay as a result of the accident, so he had therefore suffered no actual loss of income due to the accident.[8] After the firm confronted the attorney with his correspondence with the insurance company, he engaged in further dishonesty in an attempt to justify the earlier misrepresentations. The court found that the attorney engaged in dishonesty through his misrepresentations to the insurance company, and the “series of blatant lies” made to his firm, and suspended him from the practice of law for 30 days.9

Unlike the attorneys in Pennington or Scanio, the attorney in In re Hawn[10] engaged in dishonesty during a search for legal employment. The attorney had included several awards and honors on his résumé that he had not, in fact, received and had significantly inflated the grade-point average on his transcript. After noticing the discrepancy between different versions of the attorney’s transcript, a potential employer contacted the attorney’s law school in an attempt to resolve the inconsistency. Once contacted by the law school, the attorney engaged in further dishonesty by attempting to blame others for the alterations. The Board on Professional Responsibility found that the attorney’s misconduct was “quite serious” because he “not only conveyed false information, as a false statement on his résumé would do, he also altered what appeared to be an official record to deceive the recipient into believing that his false information was supported by a genuine law school record.”[11] The court adopted the recommendation of the Board on Professional Responsibility and suspended the attorney from the practice of law for a period of 30 days.

The court has stated that in attorney discipline cases, “[t]he discipline we impose should serve not only to maintain the integrity of the profession and to protect the public and the courts, but also to deter other attorneys from engaging in similar misconduct.”[12] Dishonest conduct serves to damage the integrity of the legal profession more than nearly any other class of misconduct. In each of the above cases, the attorneys’ situations were significantly worsened by the subsequent dishonesty intended to conceal earlier misconduct.

In All’s Well That Ends Well, Shakespeare wrote that “no legacy is as rich as honesty.” Although it strains credulity to imagine that Shakespeare had lawyers in mind when he penned this idealistic maxim, it certainly applies to the legal profession. Remember this: whether in our personal or professional lives, nothing overshadows the importance of being earnest.

Notice of Rule Change: “Disciplining Court”
On August 7, 2007, the D.C. Court of Appeals amended D.C. Bar Rule XI, § 11(a), effective August 31, 2007. The amended rule makes it clear that when an attorney is disciplined in another jurisdiction, whether imposed by the highest court in a particular jurisdiction or a subordinate body authorized to impose discipline effective throughout the jurisdiction, reciprocal discipline may be imposed in the District of Columbia. This change removes the prior rule’s provision stating that reciprocal discipline could only be imposed to disciplining courts with the power to suspend or disbar an attorney, which had recently resulted in the dismissal of several reciprocal discipline cases.[13]

Notes
[1] In re Shorter, 570 A.2d 767, 767–68 (D.C. 1990) (citation omitted). In Shorter, the D.C. Court of Appeals (the “Court”) explained that the attorney’s conduct was of a dishonest character, even though his answers were “technically true,” because the attorney “knew what information the IRS was after, but for his own benefit refrained from supplying that information … [a]s long as the IRS did not ask just the right questions.” Id. at 768.
[2] “A lawyer is held to a high standard of honesty, no matter what role the lawyer is filling: acting as lawyer … or conducting the private affairs of everyday life.” Id. (quoting In re Jackson, 650 A.2d 675, 677 (D.C. 1994)).
[3] In re Scanio, 919 A.2d 1137, 1145 (D.C. 2007) (citation omitted).
[4] In re Pennington & Wiggins, 912 A.2d 135 (D.C. 2007). The court consolidated the disciplinary proceedings of Ms. Pennington with those of Mr. Wiggins, an attorney she consulted with and who incorrectly advised that her proposed course of action was consistent with her obligations under the rules. The court found that Mr. Wiggins had engaged in dishonesty by approving of Ms. Pennington’s plan to enter into a false settlement with her clients and concealing the potentially valuable malpractice claim they had against Ms. Pennington and suspended him from the practice of law for 60 days, partially stayed.
[5] Id. at 143 (quoting Atty. Grievance Comm’n of Md. v. Pennington, 876 A.2d 642, 644–47 (Md. 2005).
[6] The court did not impose identical reciprocal discipline to Ms. Pennington’s disbarment in Maryland because the District of Columbia does not have a rule analogous to Maryland’s presumption of disbarment in cases of intentional dishonesty. [7] In re Scanio, 919 A.2d 1137 (D.C. 2007).
[8] The attorney also had asserted that his annual bonus had been reduced by $5,000 because he had worked fewer billable hours during the year, purportedly as a result of the accident. Because the Board on Professional Responsibility found some support in the record for these statements, the court did not consider the statements relating to the annual bonus as further instances of dishonesty. Id. at 1143, n.5.
[9] Id. at 1143–44.
[10] In re Hawn, 917 A.2d 693 (D.C. 2007). A fuller discussion of the facts may be found in the Board on Professional Responsibility’s Report and Recommendation. In re Hawn, Bar Docket No. 258-05 at 3–5 (Board on Prof’l Responsibility, Dec. 5, 2006).
[11] In re Hawn, Bar Docket No. 258-05 at 11 (Board on Prof’l Responsibility, Dec. 5, 2006).
[12] In re Scanio, 919 A.2d at 1144 (quoting In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc) (citations omitted)).
[13] See, e.g., In re Greenspan & Silverman, 910 A.2d 324 (D.C. 2006); In re Weisbard, 912 A.2d 1178 (D.C. 2006) (as amended, June 29, 2007).

Bill Ross is an assistant bar counsel.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re John E. Anderson. Bar No. 420236. July 31, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Anderson for his reckless or intentional misappropriation in connection with a personal injury matter. The board further recommends that Anderson be required to show that he has refunded $1,144 to his client with interest at the District of Columbia statutory rate of 6 percent from April 31, 1996, until the date of payment. The board found Anderson’s failure to pay his client’s medical providers from a 1996 settlement occurred in 1996 and constituted at least reckless misappropriation resulting from a deliberate pattern of misconduct. Anderson compounded his misappropriation when, in 2001, he falsely reassured his client that he had paid the outstanding bills from the settlement proceeds even though he had no record-keeping system to speak of, no records to substantiate his claims of payment, made no effort to locate such records, and took no actions with the creditors to satisfy these long overdue claims. The board found Anderson violated the following Rules: 1.3(b)(1) and (2) (intentional failure to pursue client’s objectives); 1.3(c) (failure to act with reasonable promptness); 1.15(a) (misappropriation, failure to maintain financial records); 1.15(b) (failure to deliver funds promptly); 1.17(a) (failure to deposit trust funds in properly denominated account); 8.4(c) (dishonesty); 8.4(d) (serious interference with administration of justice); and D.C. Bar R. XI, § 19(f) (failure to keep proper escrow records).

In re Bryan A. Chapman. Bar No. 439184. July 30, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Chapman for 30 days, with the suspension stayed in favor of a one-year period of supervised probation during which Chapman will be required to (1) cooperate with a practice monitor who will provide quarterly reports to the board and (2) complete continuing legal education courses in employment discrimination law, federal civil procedure, and professional responsibility. While representing a client in an employment matter, Chapman failed to provide competent representation, failed to represent his client with skill and care, and neglected his client’s case. In addition, Chapman failed to prepare his client for her deposition, to respond to the government’s discovery requests notwithstanding his ability to do so, and to propound any discovery to the government. Chapman also failed to send the government’s summary judgment motion to his client and filed an inadequate response in which he effectively conceded that there had been no discrimination on the basis of race. As a result of Chapman’s lack of competent representation and failure to handle his client’s case with diligence and zeal, the District Court granted the government’s motion for summary judgment and dismissed the complaint. (Rules 1.1(a), 1.1(b), and 1.3(a)).

In re Lucy R. Edwards. Bar No. 197020. June 22, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Edwards, and that as a condition of reinstatement, she be required to pay restitution to her client in the amount of $1,000 with interest at the legal rate of 6 percent from June 7, 1995. Edwards intentionally misappropriated client funds in violation of Rule 1.15(a); failed to maintain complete financial records in violation of Rule 1.15(a) and D.C. Bar R. XI, § 19(f); failed to deliver to a client money to which he was entitled in violation of Rule 1.15(b); failed to surrender to a client property to which he was entitled in violation of Rule 1.16(d); failed to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(b); failed to comply with an order of the board in violation of D.C. Bar R. XI, § 2(b)(3); and seriously interfered with the administration of justice in violation of Rule 8.4(d).

In re Brian O. Godette. Bar No. 433283. June 29, 2007. On remand from the D.C. Court of Appeals to reconsider their original sanction recommendation following the court’s conclusion that Godette failed to respond to an ethical charge against him, that his failure was a violation of Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3), and that he evaded service of process in the disciplinary matter, the Board on Professional Responsibility affirms its original recommendation that Godette be suspended for 30 days without a fitness requirement, but that, before resuming the practice of law, he be required to (a) show that he has fully responded to the underlying ethical complaint in this case and (b) take six hours of continuing legal education courses in legal ethics and professional responsibility. The board also recommends that the sanction include a provision that, if Godette does not satisfy conditions (a) and (b) above within 90 days of the court’s order, his reinstatement thereafter be conditioned upon a showing of his fitness to resume the practice of law. Three members of the board dissented, stating their view that the court’s order of remand requires the board to add a fitness requirement to Godette’s sanction.

In re Willie N. Hewett. Bar No. 372772. June 29, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Hewett for six months for negligent misappropriation, based on a finding that when Hewett, who was serving as a court-appointed conservator of a ward of the court, took approximately $2,000 in fees without prior approval of the probate court, he believed that (a) he was benefiting his ward by insuring that the ward’s funds were reduced by $750 to a level below the Medicaid eligibility threshold and (b) he was legitimately entitled to the legal fees he withdrew from his ward’s account at the same time that he sought the probate court’s approval. Unaware the probate court subsequently denied his request for approval of the fees, Hewett treated the funds as his own for approximately a year and a half. In December 2002, upon belatedly discovering approximately 15 months after the decision that the probate court had disapproved his request for the fees, Hewett promptly repaid, in December 2002, all of the amounts he had taken from the ward. Three members of the board wrote individual dissenting opinions stating that Hewett engaged in intentional misappropriation. (Rules 1.1(a), 1.1(b), and 8.4(d)).

In re Peter Paul Mitrano. Bar No. 410441. July 9, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Mitrano and that his reinstatement be conditioned upon proof by Mitrano that he has made restitution to his client of the proceeds of the January 8, 1998, check ($241,336), with interest at the legal rate of 6 percent since that date, less any amounts Mitrano can prove he was entitled to as of the date he received the check. Mitrano engaged in theft and misappropriation of a substantial check drawn to his client as the result of protracted litigation he handled against the District of Columbia over a large business contract. Mitrano violated seven disciplinary rules, including theft and misappropriation of client funds, committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; commingling; failed to notify the client or other interested persons of the receipt of funds to which they are entitled and to render a prompt accounting of any monies he had received; failed to keep property separate in which interests are claimed by the lawyer and another person until an accounting and severance of interests in the property; failed to segregate required funds in a specially designated account at a financial institution; and failed to communicate. (Rules 1.4(a), 1.15(a), 1.15(b), 1.15(c), 1.17(a), 8.4(b), and 8.4(c)).

Reciprocal Matters
In re Michael Bauer. Bar No. 936211. June 28, 2007. In a reciprocal matter from Illinois, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Bauer for nine months. The Supreme Court of Illinois suspended Bauer for nine months for breaching his fiduciary duty as a trustee for his brother’s children. Although the trust agreement authorized Bauer to borrow funds from the trust, he borrowed an additional $197,000 from the trust at a time when he was in default on a prior loan of $100,000 from trust assets. The Illinois court found that Bauer engaged in misconduct, including a breach of fiduciary obligations, because he “was aware that his own precarious financial condition” made the additional loans “less than a prudent investment for the trust.” The Board on Professional Responsibility determined that Bauer’s actions would fit within the broad interpretation of Rule 8.4(c)’s prohibition of “conduct involving dishonesty, fraud, deceit, or misrepresentation” because his conduct lacked “probity [and] integrity in principle.”

In re Lawrence A. Fuller. Bar No. 477504. June 18, 2007. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and admonish Fuller. The Supreme Court of Florida admonished Fuller based on a conditional guilty plea and consent judgment in which Fuller admitted that he violated Florida Bar Rules pertaining to the frivolous bringing or defending of a proceeding and conduct prejudicial to the administration of justice. Specifically, Fuller admitted that he failed to perform an adequate presuit investigation before filing 13 complaints with the Americans with Disabilities Act that erroneously alleged his client was a quadriplegic.

Robert L. Gailliard. Bar No. 311589. June 29, 2007. In a reciprocal matter from South Carolina, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally equivalent reciprocal discipline and suspend Gailliard for three years with a fitness requirement. This disciplinary action arose out of Gailliard’s criminal conviction in the Court of General Sessions, Charleston County, South Carolina, of assault and battery of a high and aggravated nature.

In re John R. Hallal. Bar No. 444398. July 30, 2007. In a supplemental Report and Recommendation, the Board on Professional Responsibility reaffirms their recommendation that the D.C. Court of Appeals suspend Hallal for a five-year suspension with fitness as functionally identical reciprocal discipline. The board also recommends that the court grant Hallal’s request that his suspension run nunc pro tunc from June 23, 2003.

In re Hillard J. Quint. Bar No. 427926. July 23, 2007. In a reciprocal matter from Georgia, the Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Quint as reciprocal discipline. The Supreme Court of Georgia accepted Quint’s voluntary surrender of license, with disciplinary proceedings pending. The Georgia court’s action was based upon “serious violations and substantial harm to his clients.” Quint admitted that his conduct violated professional conduct involving fraud or willful misrepresentation, commingling client funds with his own, and failure to account for trust property.

In re Joseph W. Thomas. Bar No. 285460. July 30, 2007. This reciprocal case is based on two orders from the Supreme Court of Louisiana. In February 2004 the Louisiana court suspended Thomas for three years based on findings of multiple disciplinary violations, including incompetence, engaging in conduct intended to disrupt a tribunal, insulting and abusive language toward a judge, and physical and abusive actions against another attorney. In June 2004 the Louisiana court entered an order transferring Thomas to disability inactive status while additional disciplinary charges were pending. The Board on Professional Responsibility recommends the D.C. Court of Appeals hold Thomas’s three-year suspension in abeyance and indefinitely suspend him for disability pursuant to D.C. Bar R. XI, § 13(e).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Michael L. Avery. Bar No. 447083. June 14, 2007. The D.C. Court of Appeals publicly censured Avery and further ordered that he certify to the Board on Professional Responsibility his completion of a continuing legal education course in legal ethics within one year from the date of the court’s order. Avery violated rules pertaining to competent, zealous, and diligent representation; reasonable promptness in representing a client; keeping a client reasonably informed; explaining a matter to a client to the extent reasonably necessary; providing the client a written contingent fee agreement and a separate writing describing the division of fees and responsibilities between lawyers not in the same firm; and then failing to protect his client upon termination of representation. Avery’s misconduct occurred during the course of representing a client in a personal injury matter that was approaching the deadline to file suit under the statute of limitations in Maryland, where Avery informed his client that another attorney would file the suit. (Rules 1.1(a), 1.3(a), 1.3(c), 1.4(a), 1.4(b), 1.5(c), 1.5(e), and 1.16(d)).

In re Samuel R. Berger. Bar No. 167452. June 7, 2007. The D.C. Court of Appeals disbarred Berger by consent.

In re Gary A. Courtois. Bar No. 302539. The D.C. Court of Appeals granted Courtois’s petition for reinstatement, effective immediately, with conditions.

In re John C. Pasierb. Bar No. 414458. June 7, 2007. The D.C. Court of Appeals disbarred Pasierb by consent.

In re Lloyd Ukwu. Bar No. 420617. July 29, 2005. The D.C. Court of Appeals suspended Ukwu for two years with fitness and restitution in the amounts of $2,000, $5,855, and $2,000 to three specified clients, with interest of 6 percent annum from the dates of each client’s payment. While representing five foreign nationals over a four-year period, Ukwu failed to provide adequate representation in all matters. It further concluded that Ukwu also engaged in the serious interference with the administration of justice in three matters and that he acted dishonestly, intentionally abandoned a client, and made misrepresentations to the INS and Board of Immigration Appeals in one matter. (Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b), 1.3(c), 1.4(a), 1.4(b), 3.3(a)(1), 8.4(c), and 8.4(d)).

Reciprocal Matters
In re Don Aimar. Bar No. 284091. June 14, 2007. In a reciprocal matter from Nevada, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Aimar for six months and one day, nunc pro tunc, from March 29, 2006, with the suspension stayed pending a one-year probation, subject to the conditions imposed by the Supreme Court of Nevada. Aimar’s suspension in Nevada was based on a conditional guilty plea and consent to discipline, whereby he admitted to violating Nevada Supreme Court Rules pertaining to diligence, communication, safekeeping of property, declining or terminating representation, responsibilities regarding nonlawyer assistants and unauthorized practice of law.

In re Michael P. Greenwald. Bar No. 242768. June 14, 2007. In a reciprocal matter from Illinois, the D.C. Court of Appeals imposed substantially different reciprocal discipline and suspended Greenwald for six months. The Supreme Court of Illinois suspended Greenwald for 60 days for disciplinary violations based on a consent petition of the Attorney Registration and Disciplinary Commission, whereby he was found to have violated Illinois Rules of Professional Conduct pertaining to conversion, failure to promptly deliver funds to a client or third party, dishonesty, conduct prejudicial to the administration of justice and the Illinois Supreme Court Rule pertaining to conduct tending to defeat the administration of justice.

In re Thomas W. Kinnane. Bar No. 479416. July 19, 2007. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Kinnane. The Maryland Court of Appeals disbarred Kinnane for improperly splitting a fee, committing felony theft, and engaging in conduct that involved dishonesty and misrepresentation.

Informal Admonitions Issued by the Office of Bar Counsel
In re Ron M. Landsman. Bar No. 209452. June 15, 2007. Bar Counsel issued Landsman an informal admonition for neglecting the interests of his client and for an 18-month delay in submitting the client’s special needs trust to the Probate Division for supervision pursuant to a court order, which stated that the trust was to be submitted within seven days of the order. (Rules 1.1(a), 1.3(c), and 8.4(d)).

In re Stacey L. Lewis. Bar No. 464058. July 2, 2007. Bar Counsel issued Lewis an informal admonition for her failure to diligently represent the decedent estate in a personal injury case. Lewis repeatedly failed to make reasonably diligent efforts to comply with the defendant’s discovery request resulting in an order from the court to comply, additionally she failed to attend a scheduled deposition and mediation hearing resulting in court-imposed sanctions. (Rules 1.3(a), 3.4(d), and 8.4(d)).

In re Bruce Sanders. Bar No. 385397. July 16, 2007. Bar Counsel issued an informal admonition for failing to maintain complete financial records of entrusted funds. (Rule 1.15(a)).

In re Leslie J. Susskind. Bar No. 387854. June 15, 2007. Bar Counsel issued Susskind, who served as successor conservator to the estate of a former ward of the court, an informal admonition for failing to file copies of cancelled checks or receipts with the probate court for more than one year after her final account was approved. (Rules 1.3(a), 1.3(c), and 8.4(d)).

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’s Web site at www.dcbar.org/attorney-discipline/index.cfm. 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.dcappeals.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 memberservices@dcbar.org.