Washington Lawyer

Bar Counsel: If It Sounds Too Good to Be True…

From Washington Lawyer, October 2010

By Bill Ross

barcounsel
You have set up a Web site for your firm and you are eagerly waiting for the clients to start appearing out of the aether of cyberspace when, as if on cue, the small speakers attached to your fancy computer chime, “You’ve got mail!” Excitedly, you dash over and skim the incoming message. It appears that your Web presentation is so impressive that a potential client has chosen to hire you, sight unseen, to help her with her divorce settlement. Her ex-husband has agreed to pay $500,000 but has since failed to make any payments, and she wants you to either collect the amount owed or file suit. You send a contingent fee agreement to the client, she eagerly signs it and returns it to you (she cannot sign in person as she is overseas), and you begin work. After receiving your expertly crafted letter, the ex-husband realizes the error of his ways and sends you a check for full payment of the amount demanded.

This is easier than you thought. You will have earned your contingent fee in record time! You contact the client, proudly informing her that you have achieved a full recovery of her funds. The client asks that you wire the funds, minus your fee, to her account so she can access it abroad. You remember reading an article about check fraud in Washington Lawyer[1], so you are careful to wait until your bank indicates that the funds are available in your attorney trust account before you wire the client her funds, minus your agreed $50,000 fee. You can’t help thinking that although the economic downturn has taken its toll, things are looking up. A few more clients like this and you will be on easy street.

The next afternoon, you are in the middle of reverie about planning a beach vacation when the phone rings. It is a representative from your bank informing you that the $500,000 check you deposited last week was bogus, the wire transfer has been completed and cannot be recalled, and your attorney trust account now has a significant negative balance. If it would not be too much trouble, the representative explains, the bank would kindly like you to deposit $437,927.12 at your earliest convenience. If you do not have sufficient funds to cover the shortfall, the bank is willing to offer you a loan at a competitive interest rate.

There has to be a mistake somewhere. You tell the bank representative that you double-checked to confirm that the check was valid and the funds were in your attorney trust account. It does not matter, the representative says in a sympathetic but firm tone. You are responsible for this matter.

Shell-shocked, you call the police and the Federal Bureau of Investigation. Surely they will be able to track the wire transfer and retrieve the funds. Unfortunately, you are told, this kind of scam is all too common. Law enforcement is able to track the funds as they are transferred several times between banks in Eastern Europe and Asia, but the trail goes cold before leading to the culprit.

How can D.C. Bar members avoid this kind of scam? Most lawyers would immediately delete an unsolicited e-mail purporting to be from a member of a deposed royal family seeking assistance in transferring his fortune out of the country in return for a 10 percent fee. Yet an increasing number of lawyers across the country are falling prey to essentially the same scam under the guise of an e-mail appearing to relate to the practice of law. Here are a few suggestions:

  • Be skeptical of unsolicited e-mails that sound too good to be true. Search online using the sender’s name or key phrases from the e-mail to see whether other attorneys have received similar communications, or whether these e-mails have been determined to be scams. Examples of scam e-mails sent to attorneys have been collected at www.lawyerscam.blogspot.com.
  • Be wary of any client who claims to be abroad and requires funds immediately. Do your due diligence to independently confirm a client’s story, particularly when your contact has primarily been e-mail-based. Does the client’s multinational corporation actually exist? Are there court records supporting the client’s claim that she was involved in a divorce proceeding? If a client’s family member is in a foreign hospital and urgently needs expensive treatment, does the hospital actually exist and, if so, does it have any record of such a patient?
  • When in doubt, contact the bank that purportedly issued a questionable check to determine whether the check is valid and whether it has actually been paid by the issuing bank. It is critical to remember that your bank may inform you that the funds are “available” in your trust account before the check has actually been paid by the issuing bank.  

Be careful! You don’t want to fall prey to a scam like this and then have to explain what happened to your bank, your clients, and, last but not least, the Office of Bar Counsel.

Bill Ross is an assistant bar counsel.

Note
[1] Thai Phi Le, Could You Fall Prey to a Scam? Savvy Lawyers Have Paid the Price, Wash. Law., June 2010, at 21.

Disciplinary Actions Taken by the Board on Professional Responsibility

Hearing Committees on Negotiated Discipline
IN RE JAMES W. BEANE JR. Bar No. 444920. July 16, 2010. The Board on Professional Responsibility Ad Hoc Hearing Committee recommends that the D.C. Court of Appeals accept Beane’s petition for negotiated discipline and suspend him for six months with fitness for violation of Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.4(a), 1.4(b), 1.15(a), 1.16(d), 8.1(b), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

IN RE RACHELE M. GAINES. Bar No. 463314. July 20, 2010. The Board on Professional Responsibility Hearing Committee Number Eight recommends that the D.C. Court of Appeals accept Gaines’ petition for negotiated disposition in two consolidated matters and impose the discipline of 30-day stayed suspension, unsupervised probation for one year, and completion of a continuing legal education course for new admittees for violation of Rules 1.1, 1.3(a), 1.3(c), 1.4(a), 1.4(b), 1.5(b), 1.14(a), 3.3(a)(1), 8.4(c), and 8.4(d).

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE ROBERT L. BERKEBILE. Bar No. 475315. July 1, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Berkebile by consent.

IN RE WALTER L. BLAIR. Bar No. 471057. July 23, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Blair. Blair was found guilty in the U.S. District Court for the District of Maryland of eight felony counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), one felony count of money laundering in violation of 18 U.S.C. § 1957(a), one felony count of witness tampering in violation of 18 U.S.C. § 1512(b)(3), one felony count of obstruction of justice in violation of 18 U.S.C. § 1503(a), one felony count of false statements in violation of 18 U.S.C. § 1001(a)(2), and two felony counts of failure to file individual tax returns in violation of 26 U.S.C. § 7203. The board concluded that Blair’s convictions of obstruction of justice and witness tampering involved moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a)(2001).

IN RE QUINNE HARRIS-LINDSEY. Bar No. 451238. July 1, 2010. On remand from the D.C. Court of Appeals for analysis regarding whether the negotiated discipline recommended by an Ad Hoc Hearing Committee was proportionate to the disbarment ordered in In re Bach, the board recommends that the negotiated discipline be rejected because the record suggests a substantial question of whether the underlying conduct constitutes reckless misappropriation, for which disbarment is the presumptive sanction. Two board members wrote separate statements. One of the separate statements recommended a remand to the hearing committee and contended that, in rejecting the petition, the basis of the board’s recommendation is inconsistent with the court’s analysis in In re Johnson, 984 A.2d 176 (D.C 2009). The other separate statement, which was joined by another board member, concurred in the board’s recommendation that the negotiated disposition be rejected, but it contended that the question of credibility determinations need not be reached. It also contended that the basis of the board’s recommendation is inconsistent with the court’s analysis in Johnson. The Ad Hoc Hearing Committee had recommended that Harris-Lindsey’s petition for negotiated disposition be accepted and Harris-Lindsey be suspended for one year, with six months stayed and a one-year period of probation to begin at the commencement of the period of suspension, with the conditions that she attend a continuing legal education course and that she consult with the D.C. Bar Practice Management Advisory Service before entering private practice, for violation of Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.5(f), 1.15(a), 8.4(d) and D.C. Bar R. XI, § 19(f).

IN RE G. PAUL HOWES. Bar No. 434709. July 27, 2010. The Board on Professional Responsibility submitted its unanimous findings of fact and conclusions of law in the Howes disciplinary case, but it took no majority position as to the appropriate sanction. The board’s vice chair was joined by the chair and another board member in recommending a three-year suspension. In a separate statement, two board members joined in recommending a one-year suspension. Four board members joined in recommending disbarment. Howes engaged in multiple violations of the D.C. Rules of Professional Conduct while serving as an assistant U.S. attorney in the District of Columbia. The misconduct arose out of Howes’ investigation and prosecution of very serious and high-profile drug/homicide gang cases in the Superior Court of the District of Columbia and in the U.S. District Court for the District of Columbia, as well as his investigation of an unrelated sexual assault. The misconduct occurred between 1993 and 1995 and entailed, inter alia, Howes’ provision of a large volume of witness vouchers to persons not entitled to them, and a subsequent failure to disclose these voucher payments to defense counsel or the courts. Howes violated the following Rules: (1) Rule 3.3(a), knowingly making a false statement of material fact or law to a tribunal (counts I, II, and III); (2) Rule 3.4(c), knowingly disobeying an obligation under the rules of a tribunal (counts I, II, and III); (3) Rule 3.8(e), as a prosecutor in a criminal case, intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence of information that respondent knew or reasonably should have known tended to negate the guilt of the accused (counts I and II only); (4) Rule 8.4(a), violating or attempting to violate the rules, knowingly assisting or inducing another to do so, and/or doing so through the acts of another (counts I, II, and III); (5) Rule 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness (counts I, II, and III); (6) Rule 8.4(c), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (counts I, II, and III); and (7) Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice (counts I, II, and III).

IN RE VAHID SHARIATI. Bar No. 468925. July 30, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Shariati and require that he make restitution, with interest at the statutory rate, to his former clients or to the Clients’ Security Fund to the extent that the fund has paid any monies out to his former clients or may do so in the future. The board found that Shariati committed numerous ethical violations over several years in 11 complaints. Specifically, Shariati failed to provide competent representation to his clients and failed to serve his clients with the requisite skill and care; engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation; failed to represent his clients zealously and diligently within the bounds of the law; neglected his clients and failed to act with reasonable promptness; failed to keep his clients reasonably informed about the status of their matters; engaged in conduct that seriously interfered with the administration of justice; failed to surrender papers and property to which his clients were entitled and failed to return unearned fees; engaged in the unauthorized practice of law; failed to communicate in writing the basis or rate of his fee; and destroyed evidence that he knew or reasonably should have known was the subject of a Bar Counsel subpoena in a pending investigation and falsified evidence submitted to the Immigration and Naturalization Service. Rules 1.1(a), 1.1(b), and 8.4(d) in all counts, except count V; Rules 1.3(a), 1.3(b), 1.3(c), 1.4(a), 1.4(b), and 8.4(d) in counts II, III, IV, V, and VI; Rule 1.16(d) in all counts, except count V; Rules 1.5(b) and 5.5(a) in counts IV, VI, and VIII; and Rule 3.4(a) in counts VIII, IX, X, and XI.

IN RE LUCILLE SAUNDRA WHITE. Bar No. 463929. July 1, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar White for the submission of fabricated evidence and false testimony in a matter before the Council of the District of Columbia, as well as for the presentation of false evidence and misrepresentations that pervaded her defense in a disciplinary hearing. Rules 3.4(a), 3.4(b), 8.1(a), 8.4(b), 8.4(c), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

IN RE MOHAMED SADU BAH. Bar No. 455733. July 1, 2010. The D.C. Court of Appeals approved a petition for negotiated discipline and suspended Bah for 30 days with the suspension stayed, followed by a one-year period of supervised probation, with the conditions agreed to by the parties. Specifically, Bah will consult with the D.C. Bar Practice Management Advisory Service (PMAS) and will (1) waive confidentiality, (2) implement the recommendations by PMAS, and (3) submit a compliance report to the board and Bar Counsel that he shall prepare and swear to, that shall be signed by a PMAS representative, and that shall describe in detail the management reforms implemented, as well as describe the purposes to be achieved by each reform. Moreover, Bah will attend the mandatory continuing legal education (CLE) course for new admittees and a CLE course on immigration law, approved by Bar Counsel, and will provide proof of attendance at these courses within 10 days of completion of each course. Bah failed in his obligations to provide competent, zealous, and diligent representation; violated his duties to act promptly and to communicate adequately with his clients; and did not provide his client a writing setting forth the basis or rate of his fee. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.4(b), and 1.5(b).

IN RE ROBERT L. BERKEBILE. Bar No. 475315. July 22, 2010. The D.C. Court of Appeals disbarred Berkebile by consent, effective forthwith.

IN RE BRIAN D. GENO. Bar No. 416468. July 1, 2010. The D.C. Court of Appeals publicly censured Geno. Geno failed to notify his clients of a pending immigration hearing; failed to attend the hearing, resulting in the entry of an in absentia deportation order; and failed to take remedial actions. Rules 1.3(c) and 1.4(a).

IN RE JAMES R. BOYKINS. Bar No. 426147. July 29, 2010. The D.C. Court of Appeals suspended Boykins for two years with fitness. The disciplinary charges in this matter stemmed 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, in both matters, Boykins withdrew more fees from his trust account than he was entitled to be paid. As a result, in the first matter, when his client presented her check for her share of the settlement funds, the bank refused to honor the check because the balance in Boykins’ trust account was insufficient. Boykins engaged in negligent misappropriation, failed to establish and maintain complete records, and failed to notify and pay third parties with an interest in the settlement funds. In the second matter, during Bar Counsel’s investigation, Boykins knowingly made false statements of material fact, 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), 8.4(d) and D.C. Bar R. XI § 19(f).

Interim Suspensions by the District of Columbia Court of Appeals

IN RE ANDREA R. BATEMAN. Bar No. 360342. July 13, 2010. Bateman was suspended on an interim basis based upon discipline imposed in Florida.

IN RE IRA C. HATCH JR. Bar No. 376958. July 13, 2010. Hatch was suspended on an interim basis based upon discipline imposed in Florida.

IN RE KEVIN J. HERON. Bar No. 375646. July 22, 2010. Heron was suspended on an interim basis based upon discipline imposed in Pennsylvania.

IN RE JOHN A. YANCHEK. Bar No. 420350. July 22, 2010. Yanchek was suspended on an interim basis based upon discipline imposed in Florida.

Disciplinary Actions Taken by Other Jurisdictions

In accordance with D.C. Bar Rule XI, § 11(c), the D.C. Court of Appeals has ordered public notice of the following nonsuspensory and nonprobationary disciplinary sanctions imposed on D.C. attorneys by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline and search by individual names.

IN RE JOSEPH L. ANDERSON. Bar No. 471245. On September 18, 2008, the Supreme Court of Kentucky publicly reprimanded Anderson.  

IN RE JOSEPH L. ANDERSON. Bar No. 471245. On September 3, 2009, the State of West Virginia Supreme Court of Appeals reprimanded Anderson.  

IN RE DEBI FAYE CHALIK. Bar No. 469386. On June 17, 2010, the Supreme Court of Kentucky publicly reprimanded Chalik.

IN RE ROBERT S. FISHER. Bar No. 461518. On May 25, 2010, the Supreme Court of the State of Colorado publicly censured Fisher.

IN RE ROBERT GOLDMAN. Bar No. 475942. On December 17, 2009, a Grievance Committee of the Supreme Court of Florida admonished Goldman.

IN RE ANDREA RUTH BATEMAN. Bar No. 360342. On December 14, 2007, the Board of Governors of the Florida Bar, in the Supreme Court of Florida, publicly reprimanded Bateman.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE LISA BUTLER. Bar No. 492975. June 18, 2010. The Office of Bar Counsel issued Butler an informal admonition for failing to provide the client with a retainer agreement stating the basis or rate of the fee, or the scope of the representation, while retained to provide legal advice in a criminal matter. Rule 1.5(b).

IN RE DOUGLAS B. EVANS SR. Bar No. 423496. June 17, 2010. The Office of Bar Counsel issued Evans an informal admonition for failing to communicate, to maintain client file, and to provide the client with a retainer agreement or other writing stating the basis or rate of the fee, or the scope of the representation, while retained to assist a client in an expungement matter. Rules 1.4(a) and 1.5(b).

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/
opinions_mojs.jsp
.