Bar Counsel: The Human Condition
From Washington Lawyer, October 2008
By Gene Shipp
We were looking over old Washington Lawyer/District Lawyer articles from the past 32 years. (Sometimes, we run out of ideas after 32 years of articles on ethics.) One thing that occurred to me was that the human condition has not changed in all of those years.
Okay, you wonder, how do we define the human condition at the Office of Bar Counsel? We know we have Rules of Professional Conduct, and that attorneys violate these rules. We also know most attorneys do not wake up in the morning and say, “Today, I am going to violate Rule 1.1 by becoming incompetent.” Some human condition issues generally trigger the misconduct. (Of course in this column, we are not talking about the alcoholic, drug abusing, or mentally ill lawyer.)
It has been a hobby of mine to categorize the so-called “traps of the practice,” or the human condition that often seems to underlie the conduct. We have been teaching these traps in the mandatory course for new admittees of the D.C. Bar for many years. Since the majority of members (as of July, there were 89,312 total Bar members and counting) has not been exposed to the course, we take this opportunity to put forth this theory to all of you.
The traps of the practice include:
The Difficult Client
Too Much Zeal
It Was an Old Friend, Not a “Real Client”/I Was Just Helping
My Intentions Were Good
I Didn’t Know/No One Taught Me That Rule
It Wasn’t the Practice of Law
Self-Justification After the Conduct Has Occurred
I Have Been Around/I Know What I Am Doing
Not Paying Attention/I Was Too Busy
The Deadly Avoidance Syndrome
Many of these traps are self-evident or self-proving when it comes to a disciplinary hearing. A short review might awaken our self-preservation monitoring system to avoid the bad consequences of a disciplinary inquiry.
The Difficult Client. We all have had this client, or will at some point in our legal careers. This client is such a pain that we often give in and make bad decisions just to please him or her. Feel free to tell this client that Bar Counsel is looming just around the corner, ready to urge the court to snatch your license. Remember that old slogan from a few years back—JUST SAY NO. It is the right thing to do.
Too Much Zeal. Often a young lawyer or one who has become too invested in the client’s case falls into this category. This attorney, in zealously representing a client, skids past the ethics stop sign and lives to regret it.
Last-Minute Situations. The pressure to get the job done at the last minute and without embarrassment often leads to the use of bad judgment or defensive lies, which are easily detectable. Admit you need more time. Don’t give in to last-minute pressure. If it happens, be candid about your situation.
It Was an Old Friend, Not a “Real Client”/I Was Just Helping. This is where attorneys get out of their comfort zone by entering unfamiliar legal territory. It often begins with a little legal advice and ends with a failure to establish a proper attorney–client relationship. (You know the scenario, you are asked one little question at a wedding by a distant cousin.) Do not get sucked into this type of relationship.
My Intentions Were Good. This is the human condition where we become so invested in the righteousness of our client’s case that we cannot understand why anyone could possibly disagree. We often forget there are two sides in every matter. In this situation, we really push the ethics envelope to assist our client’s case. The ability to see the entire field is not just a tactical nicety—it protects us from using bad judgment.
Self-Help. This is the easiest lawyer in the world to prosecute, and we don’t even feel bad doing it. Greed and a sense of entitlement are two of the characteristics of this type of lawyer.
I Didn’t Know/No One Taught Me That Rule. Unfortunately, some of the fault here lies with the law schools as well as the lawyer. We are amazed at how many lawyers do not understand trust accounts or the obligation to protect Rule 1.6 secrets because they were never taught it. That is one of the benefits of the mandatory course for new admittees. Our office gets a chance to demonstrate caution in all of the areas we have identified as deficits of a law school education. (We once wrote the deans of the local law schools and asked if we could send one of our lawyers for a one-hour chat in each professional responsibility class. One school responded that it would forward the request to the faculty. End of story.)
It Wasn’t the Practice of Law. Some lawyers do not understand that the Rules of Professional Conduct apply in both their personal and professional lives. See D.C. Bar R. XI, § 2(a).
Self-Justification After the Conduct Has Occurred. When lawyers violate the rules, they often engage in self- justification and sometimes get creative in their attempts to backtrack. The best policy is to deal with the violation—why it happened and why it will not happen again. The disciplinary system is much kinder to that approach.
I Have Been Around/I Know What I Am Doing. This is the unfortunate refrain we hear from older attorneys. The rules and the law change, but these attorneys do not. Some believe that what they were taught 40 years ago in law school applies to the current state of the ethics rules. Attorneys should remain current and regularly review the rules.
Not Paying Attention/I Was Too Busy. Neglect of an entrusted legal matter has been the number one ethics violation for the past 35 years, and at least 50 percent of our cases involve neglect. Our version of the golden rule—do unto others as you would do unto yourself—is a great way to view your work on your client’s case.
The Deadly Avoidance Syndrome. We recently wrote on this subject. We will not repeat that article. See “Avoiding Avoidance,” Wash. Law. Oct. 2006. Remember that it is not necessarily a bad person who gets into ethics trouble, but often an attorney who is not paying attention or reacts badly under stress. When all else fails, the ultimate indicator of needing ethical advice is that feeling you get knowing your mother would not be proud of the decision you are about to make.
Disciplinary Actions Taken by the Board on Professional Responsibility
In re James R. Boykins. Bar No. 426147. July 31, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Boykins for two years with his reinstatement conditioned upon his compliance of several terms, including accepting the assistance and advice of a practice monitor selected by the board to assist and advise him regarding his record keeping in general and, specifically, with regard to his escrow and trust accounts and his handling of client and other entrusted funds and related matters. Then, upon his reinstatement, Boykins would be placed on probation for a period of one year and, during that period, he would be subjected to the oversight of the practice monitor selected by the board and required to cooperate with the practice monitor. Failure to cooperate would constitute a violation of his probation that would subject Boykins to revocation of probation and the imposition of another period of suspension of up to six months, with a requirement that he furnish proof of rehabilitation before he would be reinstated to practice. Boykins would not be required to notify clients of his probationary status. The disciplinary charges in this matter stem from several financial irregularities. Specifically, Boykins settled two unrelated personal injury matters for separate clients, with the settlement funds being deposited in a single trust account. Thereafter, Boykins withdrew more fees from the account than he was entitled to be paid. As a result, when one client presented the check for her share of the settlement funds, the bank refused to honor it because the balance in the trust account was insufficient. Boykins engaged in negligent misappropriation and failed to establish and maintain complete records, failed to notify and pay third parties with an interest in the settlement funds, knowingly made false statements of material fact to Bar Counsel during the investigation, engaged in dishonest conduct, and seriously interfered with the administration of justice. Rules 1.15(a), 1.15(b), 8.1(a), 8.4(c), and 8.4(d).
In re Herbert A. Callihan. Bar No. 1792. July 9, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Callihan by consent.
In re Garrett L. Lee. Bar No. 453408. June 26, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Lee by consent, effective August 29, 2008.
In re Howard Shmuckler. Bar No. 395462. July 31, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Shmuckler. Shmuckler pleaded guilty to two counts of bankruptcy fraud, in violation of 18 U.S.C. §§ 152(1) and (2) in the United States District Court for the Central District of California, crimes involving moral turpitude per se for which disbarment is mandatory in accordance with D.C. Code § 11-2503(a).
In re Toan Q. Thai. Bar No. 439343. July 31, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Thai for 60 days, with execution of the last 30 days of the suspension stayed in favor of unsupervised probation for one year. As conditions of his probation, Thai should be required to do the following: (1) file with the Board on Professional Responsibility and Bar Counsel a certification that he has attended six hours of continuing legal education courses in legal ethics and law office management as approved by Bar Counsel, and (2) pay a former client full restitution of the fees paid Thai in the amount of $4,500, with interest computed at the usual legal rate. While retained to represent a foreign national in an immigration matter before the immigration court, Thai failed to provide competent representation, serve his client with skill and care, represent his client zealously and diligently within the bounds of the law, act with reasonable promptness in representing his client, keep his client reasonably informed about the status of a matter, and promptly comply with reasonable requests for information. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), and 1.4(a).
In re Vincent M. Amberly. Bar No. 365590. June 13, 2008. In a reciprocal matter from Virginia, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose substantially different reciprocal discipline and suspend Amberly for 30 days because the discipline imposed in Virginia was both outside the range of, and substantially different from, the discipline that would be imposed in an original disciplinary proceeding in the District of Columbia. The disciplinary board of the Virginia State Bar issued Amberly an admonition with terms. The Virginia board found Amberly had violated Virginia rules pertaining to making a false statement to a tribunal, making a false statement while representing a client, making a false statement in a disciplinary matter, and engaging in acts of dishonesty reflecting adversely on a lawyer’s fitness to practice law.
In re Timothy R. Balducci. Bar No. 490242. June 13, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Balducci. Balducci pleaded guilty in December 2007 in the United States District Court for the Northern District of Mississippi to the felony of conspiracy to commit bribery of a state court judge, in violation of 18 U.S.C. § 371. The D.C. Court of Appeals previously has ruled that the crime of bribery inherently involves moral turpitude, and because conspiracy to commit such a crime also is deemed to involve moral turpitude, the board on recommends that Balducci be disbarred, in accordance with D.C. Code § 11-2503(a).
In re Michael S. Blumenthal. Bar No. 436975. July 30, 2008. In a reciprocal matter from Maryland, the Board on Professional Responsibility imposed identical reciprocal discipline and imposed a board reprimand against Blumenthal. The Attorney Grievance Commission of Maryland issued a letter of reprimand to Blumenthal. While retained to represent a client in a criminal matter, Blumenthal failed to “establish a definitive agreement” with the client regarding the fee required to represent her at her scheduled trial, and failed to deposit the client’s partial installment payments into an attorney trust account for safekeeping until the funds were earned. Blumenthal did not have the client’s consent, confirmed in writing, to deposit the unearned advance fees into a nontrust account.
In re Anthony G. Filomeno. Bar No. 427323. June 18, 2008. In a reciprocal matter from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and publicly censure Filomeno. The Supreme Court of New Jersey censured Filomeno for possession of cocaine and drug paraphernalia, in violation of the New Jersey Rules of Professional Conduct concerning criminal conduct that reflects adversely on an attorney’s honesty, trustworthiness, or fitness as a lawyer.
In re Desmond P. Fitzgerald. Bar No. 461613. July 24, 2008. In a reciprocal matter from Massachusetts, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose substantially different reciprocal discipline and suspend FitzGerald for 30 days. The Massachusetts board entered an order of public reprimand against FitzGerald based on its acceptance of a written stipulation and joint recommendation wherein FitzGerald stipulated to violating the Massachusetts Rules of Professional Conduct pertaining to competence, diligence, failure to reasonably explain matter to client, conflict of interest, and failure to withdraw as counsel while representing a client in an asylum case.
In re John R. Fuchs. Bar No. 411506. July 29, 2008. In a reciprocal matter from California, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and suspend Fuchs for two years, with all but the first six months stayed, and place Fuchs on probation for three years subject to the conditions imposed by the California Court, except for payment of costs of the D.C. disciplinary proceedings. The Supreme Court of California suspended Fuchs for violating California rules pertaining to failure to promptly notify his client of the receipt of funds and conflict of interest. Fuchs, who originally was retained to represent a married couple in a civil action, continued to represent both parties after their subsequent divorce despite their disagreement over a number of issues, including the manner of proceeding in the collection action of the civil action he successfully won on their behalf. Thereafter, Fuchs failed to promptly notify the wife of a $126,000 judgment and refused to disburse the wife’s share based on her husband’s unsubstantiated claim that he was entitled to the entire judgment.
In re Christopher D. Matchett. Bar No. 423355. July 31, 2008. In a reciprocal matter from Louisiana, the Board on Professional Responsibility recommends that the D.C. Court of Appeals hold this reciprocal discipline proceeding in abeyance pending conclusion of the proceeding in Louisiana, and that the interim suspension remain in effect until the issue of reciprocal discipline can be determined under D.C. Bar Rule XI, § 11. To date, the Supreme Court of Louisiana approved a joint petition for interim suspension by consent.
Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Celicia G. Hoover-Hankerson. Bar No. 438086. July 17, 2008. The D.C. Court of Appeals disbarred Hoover-Hankerson. Hoover-Hankerson was convicted in the United States District Court for the District of Columbia on one count of conspiracy to defraud the United States, two counts of fraud in the first degree, two counts of theft concerning programs receiving federal funds, and aiding and abetting each of the preceding counts, crimes involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).
In re Garrett L. Lee. Bar No. 453408. July 24, 2008. The D.C. Court of Appeals disbarred Lee by consent, effective August 29, 2008.
In re Peter Paul Mitrano. Bar No. 410441. July 17, 2008. The D.C. Court of Appeals disbarred Mitrano and conditioned his reinstatement on proof that he has made restitution to Dano Industries of the proceeds of a January 8, 1998, check, with interest from that date, less any amounts he 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 he or she is entitled and to render a prompt accounting of any monies he had received; failed to keep property in which interests are claimed by the lawyer and another person separate 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).
In re John W. Stewart Jr. Bar No. 464842. July 24, 2008. The D.C. Court of Appeals disbarred Stewart and ordered, as a condition of reinstatement, he make restitution to his former clients in the amount of $36,930. This matter was based on disciplinary complaints filed by 16 clients who purchased real property at District of Columbia tax foreclosure sales and retained Stewart to file the required civil complaints to foreclose the right of redemption on those properties. In addition, the Finance Office of the D.C. Superior Court referred a matter to the Office of Bar Counsel pertaining to Stewart providing checks for filing fees that were returned for insufficient funds that were never made good. The board upheld the Hearing Committee’s findings below that Stewart failed to provide competent representation; failed to communicate with his clients; and engaged in conduct involving criminal fraud and theft, dishonesty, and misappropriation of advances paid to cover fees for filings, publications, and title searches. Stewart’s clients lost more than $47,500 in deposits paid for the purchase of tax sale properties, and the fees and cost advances paid to Stewart for work he never performed. Rules 1.1(a), 1.1(b), 1.2(a), 1.3(a), 1.3(b), 1.3(c), 1.4(a), 1.4(b), 1.5(b), 1.15(a), 1.15(d), 1.16(d), 8.1(b), 8.4(b), 8.4(c), and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).
In re Joyce A. Wilson. Bar No. 386711. July 31, 2008. The D.C. Court of Appeals disbarred Wilson because she had intentionally misappropriated assets from the estate for which she was a guardian and filed falsified documents with the probate court to hide her misdeeds. In addition, Wilson failed to respond to Bar Counsel’s inquiries and comply with a board order compelling her to respond to the allegations in Bar Counsel’s notice of investigation. Rules 1.15(a), 3.3(a)(1), 8.1(b), 8.4(c), and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).
In re Franklin Feigenbaum. Bar No. 426153. June 26, 2008. In a reciprocal matter, the D.C. Court of Appeals suspended Feigenbaum for five years with fitness as reciprocal discipline based upon his “resignation with charges pending” in California.
In re Darryl K. Fountain. Bar No. 386220. July 17, 2008. In a reciprocal matter from Delaware, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Fountain. Fountain was suspended by the Supreme Court of Delaware after admitting to serious and repeated violations of that jurisdiction’s Rules of Professional Conduct. That same court subsequently disbarred Fountain by default after he failed to answer further disciplinary charges. In sum, and most significantly, Fountain either admitted to having or was found to have repeatedly failed his fiduciary and financial obligations, repeatedly misappropriated client funds, falsified records, and failed to file tax returns for several years.
In re Robert P. Hilson. Bar No. 366947. July 17, 2008. The D.C. Court of Appeals imposed substantially different reciprocal discipline and disbarred Hilson, to commence for purposes of reinstatement on June 25, 2007. The Commonwealth of Massachusetts Supreme Judicial Court for Suffolk County indefinitely suspended Hilson from the practice of law for dishonestly converting funds he was required to hold in trust during the representation of clients, breaching a fiduciary duty to his clients, failing to deposit entrusted funds in an interest-bearing account, exposing his clients to potential liability, and disclosing client confidences.
In re Stephen D. Landfield. Bar No. 388146. July 17, 2008. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Landfield for six months with fitness. This reciprocal disciplinary matter stems from four separate suspensions for various violations of the New Jersey Rules of Professional Conduct. Landfield’s suspensions in New Jersey, which ranged from three to six months, were to run concurrently and included the requirement that he prove his fitness to practice law as a condition of reinstatement.
In re J. Coury Macdonald. Bar No. 426895. June 12, 2008. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and disbarred Macdonald. The disciplinary board of the Virginia State Bar issued an order revoking Macdonald’s license to practice law, finding that he violated Virginia Rules of Professional Conduct pertaining to diligence regarding client matters, communication with a client, safekeeping of property, termination of representation, unauthorized practice of law, and misconduct. The misconduct that prompted the Virginia board’s order included failure to keep and render appropriate accounts to clients, failure to notify clients of his October 2006 suspension, practicing law while suspended, and converting for his own use at least $300,000 of a client’s funds designated for trusts that Macdonald was to establish, as requested by the client. Macdonald faced four pending felony charges alleging that he obtained money by false pretenses.
In re Christopher H. Reed. Bar No. 451941. June 5, 2008. In a reciprocal matter from Arizona, the D.C. Court of Appeals imposed materially identical reciprocal discipline and suspended Reed for three years with reinstatement conditioned upon a showing of fitness to resume the practice of law. The Arizona discipline was based on 12 instances of misappropriation on the part of Reed. Because the record of the Arizona proceedings did not contain clear and convincing evidence that Reed intentionally or recklessly misappropriated client funds, the court did not disbar Reed in this jurisdiction. The other principal disciplinary offenses include 8 violations of rules governing lack of diligence, 9 cases of failure to communicate with clients, 16 instances of misconduct prejudicial to the administration of justice, and 15 knowing failures to respond to a disciplinary authority’s lawful demands for information. Moreover, Reed’s serious offenses were aggravated by his “bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency” and his “indifference to making restitution.”
In re William M. Sawyer. Bar No. 162388. July 17, 2008. In a reciprocal matter from Kentucky, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Sawyer for three years with fitness. The Supreme Court of Kentucky suspended Sawyer for three years with fitness based on his guilty plea to criminal charges of possession of cocaine, possession of a prescription drug not in its original container, and possession of drug paraphernalia. Those felony charges were ultimately dismissed after Sawyer was granted, and successfully completed, pretrial diversion. In the disciplinary proceedings, Sawyer’s consent suspension was based on his admission he had committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer.
In re Fritz H. Schneider. Bar No. 391941. July 3, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Schneider. The Court of Appeals of Maryland disbarred Schneider after he stipulated to violating Maryland Rules of Professional Conduct pertaining to scope of representation; diligence; communication; conflict of interest; declining or terminating representation; criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice. These violations stemmed from Schneider’s failure to file a timely complaint on behalf of his client and his attempts to conceal that neglect by misrepresenting that the case had settled and paying the client out of his personal funds.
In re Andrew M. Steinberg. Bar No. 350983. July 17, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Steinberg. The Court of Appeals of Maryland found that Steinberg committed serious and protracted acts of neglect and was dishonest with clients, opposing counsel, and tribunals, in violation of a number of provisions of the Maryland Rules of Professional Conduct, during his representation of two clients in separate probate and bankruptcy matters.
In re Monica M. Turnbo. Bar No. 434437. July 24, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Turnbo. The Court of Appeals of Maryland granted a joint petition for disbarment by consent and disbarred Turnbo for various violations of the Maryland Rules of Professional Conduct, including the commingling of funds and misuse of trust account funds.
In re Charles C. Wright. Bar No. 329888. June 5, 2008. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Wright. The Supreme Court of Pennsylvania disbarred Wright based on a 2003 criminal proceeding wherein Wright pleaded guilty in Pennsylvania to two counts of third-degree felony sexual abuse of children, one count of dissemination of obscenity to minors, one count of criminal use of a communication facility, and one misdemeanor count of possessing instruments of a crime.
Temporary Suspensions by the District of Columbia Court of Appeals
In re Stephen B. Cohen. Bar No. 182303. June 12, 2008.
In re Robert E. Coughlin II. Bar No. 480261. June 12, 2008.
In re Otha M. Jackson. Bar No. 248393. July 11, 2008.
In re Michael J. Wing. Bar No. 477728. June 10, 2008.
The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted on the D.C. Bar Web site at www.dcbar.org/discipline. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/