Washington Lawyer

Bar Counsel: Crimes and Misperceptions

From Washington Lawyer, October 2011

By Joe Perry

barcounsel
In early August, Canada welcomed an influx of U.S. attorneys. Both the National Organization of Bar Counsel (NOBC) and American Bar Association (ABA) held their annual meetings in Toronto, sharing ideas and discussing pressing issues under the shadow of the CN Tower. One word that popped up with alarming frequency was fraud.

The NOBC makes it a tradition to discuss developments in disciplinary law. One of the matters highlighted in Toronto was the case of Illinois attorney Erwin Mayer. Over several years, Mayer created a variety of sham tax shelters that generated more than $6 billion in fraudulent write–offs for his wealthy clients.[1] In the midst of helping his clients cheat the government, Mayer also helped himself by creating sham transactions and filing false tax returns to understate his own income by more than $26 million.[2] Disbarred by consent, Mayer is scheduled to be sentenced in September, and his conduct was enough to raise eyebrows—even in a room full of jaded disciplinary prosecutors.

Meanwhile, the ABA was discussing fraud, or at least suggestions thereof, in a far different context. There are growing cries that law schools are improperly presenting employment data regarding their graduates by, inter alia, placing part-time, low-paying, and nonlegal work in the same category as full-time legal employment. The obvious concern about such a practice is that potential students will misjudge their future job prospects when deciding to attend a given law school.

These concerns have led to lawsuits, and have led ABA leadership to reevaluate how it collects employment data.[3] However the lawsuits pan out, and wherever one might stand when it comes to presenting employment numbers, attorneys need to care about how law schools are attracting students. When the very institutions that are charged with educating tomorrow’s attorneys on ethics are accused of fraud to gain tuition dollars, there is a very real risk that the students who attend those schools will one day find it easier to rationalize engaging in fraud themselves.

Although the Internal Revenue Service may not be the most sympathetic of victims, Mayer’s fraud is not the only game in town. Back at the NOBC conference, halfway through roll call, the audience heard from the U.S. Department of the Treasury. An agency representative had traveled to Toronto to voice concerns about the role of attorneys in money laundering.[4]

The conferences were not all gloom and doom. Near the close of the NOBC proceedings, the Law Society of Upper Canada (an organization charged with attorney regulation and discipline) graciously offered a tour of Osgoode Hall, which houses both its offices and the Court of Appeal for Ontario. Built in 1832, it has a storied history in the Canadian legal system.[5]

Two striking features inside the building were memorials to lawyer–soldiers who fell in World Wars I and II. For those charged with regulating attorneys, this kind of reverence for members of the legal profession is refreshing, and also a reminder that tolerance of fraud in the legal system is a disservice to those who have fought to build a proud profession.

Joe Perry is a senior staff attorney in the Office of Bar Counsel.

Notes
[1] See Press Release, United States Attorney, Southern District of New York, Former Jenkens & Gilchrist Attorney Pleads Guilty …, (last visited Aug. 15, 2011).
[2] See, e.g., Fay, S., Winnetka Man Pleads Guilty to Conspiracy, Tax Evasion Charges, Winnetka–Glencoe Patch, Oct. 20, 2010. Available at  (last visited Aug. 15, 2011).
[3] See Press Release, ABA Section of Legal Education to Collect Additional Lawyer Job Placement Data, (last visited Aug. 15, 2011). (“The Council of the American Bar Association Section of Legal Education and Admissions to the Bar is announcing that it will move forward in collecting detailed job placement data from law schools, and will hold schools accountable for the completeness and accuracy of that data.”). The ABA continues to face questions from members of Congress regarding transparency in accreditation and its efforts to ensure the repayment of student loans. See, e.g., Sloan, K., ABA’s Stance on Law School Accreditation Transparency Fails to Satisfy Senator, http://www.law.com/jsp/nlj/ (last visited Aug. 15, 2011).
[4] Concerns over money laundering have led many countries to impose mandatory reporting and other due diligence requirements on attorneys. See, e.g. Lawton P. Cummings & Paul T. Stepnowsky, My Brother’s Keeper: An Empirical Study of Attorney Facilitation of Money Laundering Through Commercial Transactions, Journal of the Professional Lawyer, 2011, 1, 12–13. In the U.S. such requirements are controversial, not least because of tensions with an attorney’s confidentiality obligations to her client. See id at 14–21. It remains clear, however, that an attorney cannot knowingly assist his client in perpetrating a fraud, and that “knowingly” includes willful blindness. See id.
[5] Since construction, the building has been used almost exclusively for legal purposes, with the exception of a brief period when it doubled as a military barracks. When the legal profession moved back in, several doors had to be replaced because they were used for bayonet practice.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE HOWARD D. DEINER. Bar No. 377347. July 14, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Deiner by consent.

IN RE LORENZO C. FITZGERALD JR. Bar No. 390603. July 29, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals reject Fitzgerald’s petition for negotiated disposition.

IN RE DAVID B. GOLDSTEIN. Bar No. 414557. July 29, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Goldstein by consent.

IN RE MICHAEL M. HADEED. Bar No. 395388. July 29, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Hadeed by consent.

IN RE A. RYAN LAHUTI. Bar No. 442592. July 29, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Lahuti by consent.

IN RE BRIAN C. MALADY. Bar No. 459527. July 29, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Malady by consent.

IN RE SAMUEL N. OMWENGA. Bar No. 461761. July 28, 2011. In five consolidated cases, the Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Omwenga for intentional misappropriation in one matter. In addition, the board recommends that Omwenga be required to make restitution to one client in the amount of $550, with interest at the legal rate, as a condition of reinstatement, and that the court defer consideration of the issue of restitution to Omwenga’s other clients pending an application for reinstatement. The board adopted the Hearing Committee’s report that found Omwenga committed intentional misappropriation in one matter, and 57 other violations of the disciplinary rules in four matters. The board dismissed a fifth matter.

In the first matter, Omwenga represented a client in connection with her immigration removal proceeding and in her application for permanent residence status. Omwenga failed to communicate with the client or file papers with the U.S. Citizenship and Immigration Services, and advised the client not to appear at an immigration hearing, which Omwenga also did not attend and at which the immigration court ordered the client removed in absentia from the United States. Omwenga then drafted an affidavit for the client’s signature that falsely stated the reason the client did not attend the hearing. Omwenga did not advise the client that his incorrect advice not to attend the hearing might have formed a basis for relief from the removal order. In addition, Omwenga made numerous false statements in his answer to the ethical complaint and testified falsely before the Hearing Committee.

In the second matter, Omwenga was retained to file an I-130 immigration application to adjust a client’s immigration status but failed to file the application. In addition, Omwenga lied when he told the client on multiple occasions that he had filed the I-130 petition. Thereafter, immigration authorities arrested the client and placed him in removal proceedings. The client then retained Omwenga to represent him at the immigration removal hearing, in addition to the adjustment of status matter. Omwenga told the client that he would be out of the country, but that he had filed a request for a continuance, and advised the client that he had to attend the hearing, but Omwenga failed to prepare him for it. At the hearing, the immigration judge, after questioning the client, ordered him removed from the United States, noting that an I-130 petition has not been filed and that Omwenga had not been excused from attending the hearing. Omwenga thereafter appealed to the Board of Immigration Appeals (BIA), but did not file a timely brief. Omwenga failed to return his client’s property upon termination. Finally, Omwenga was untruthful in his responses to Bar Counsel and testified falsely at the hearing.

In the third matter, Omwenga was retained to represent a client in an asylum case before the immigration court. Omwenga advised the client of the incorrect time for the hearing, resulting in the immigration court ordering the client to be removed in absentia because of the client’s failure to appear at the hearing. Omwenga also failed to appear at the hearing. Omwenga thereafter drafted an untruthful affidavit for the client to sign in support of a motion for reconsideration and filed that affidavit with a false notarization page. Omwenga’s several posthearing motions were denied because, inter alia, Omwenga failed to comply with applicable rules. Omwenga thereafter notified the client of the denials and that the client would need to pay him an additional $1,000 to appeal the case. Omwenga filed a brief with the BIA without reviewing the brief with the client or giving him a copy. Omwenga was untruthful with the immigration court, with the BIA, and in his testimony to the Hearing Committee.

In the fourth matter, a client retained Omwenga to represent him in connection with the purchase of a laundromat business. Omwenga negotiated for the purchase of the equipment at the price of $48,050, and the client delivered a certified check in that amount to Omwenga. After signing a bill of sale, Omwenga continued to negotiate and reached agreement on a reduced price of $46,000. Omwenga then paid the $46,000 to the seller, and withdrew the remaining $2,050 in cash without the client’s knowledge or consent. Omwenga did not transfer the funds to another account or provide them to the client. The client repeatedly asked for copies of the laundromat sales documents, but Omwenga failed to provide them. At a subsequent meeting, the client demanded the return of the $2,050. Omwenga gave the client a check for $1,500, but stated that he was retaining the remaining $550 as additional legal fees because he had negotiated a better sales price. At the hearing, the client testified that he did not agree to pay the additional legal fees, but did not challenge Omwenga for fear that he would not provide him the documentation of the sale. In addition, Omwenga made false statements to his client, the courts, and Bar Counsel. Omwenga also testified falsely at the hearing.

Omwenga violated numerous rules in the four client matters, which in the aggregate included Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.4(a), 1.4(b), 1.5(b), 1.7(b)(4), 1.7(c), 3.3(a), 3.4(c), 1.15(a), 1.15(b), 1.15(d), 1.16(d), 8.1(a), 8.4(c), and 8.4(d), and D.C. Bar R. XI, § 2(b)(3).

IN RE ANGEL SAAD. Bar No. 474538. July 11, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Saad. Saad was convicted in the Supreme Court of the State of New York for New York County of grand larceny in the third degree in violation of New York Penal Code § 155.35, a crime involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE JENNIFER P. STREAKS. Bar No. 463618. July 29, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Streaks by consent.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
IN RE ROBERT E. COUGHLIN II. Bar No. 480261. July 7, 2011. The D.C. Court of Appeals disbarred Coughlin by consent. The effective date of Coughlin’s disbarment runs, for reinstatement purposes, from June 12, 2008.

IN RE MICHELLE HAMILTON DAVY. Bar No. 454524. July 21, 2011. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Davy for one year with fitness. The Maryland Court of Appeals found that in multiple matters Davy had failed to act with diligence, failed to keep her clients informed as to the status of the representations, failed to communicate with her clients, failed to hold prepaid fees in trust until earned, and failed to promptly refund the portion of the fees that were not earned.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE STEVEN M. ASSARAF. Bar No. 435830. July 18, 2011. Assaraf was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE GABRIEL I. MARTIN. Bar No. 465046. July 28, 2011. Martin was suspended on an interim basis based upon discipline imposed in Florida.

IN RE RITU SINGH. Bar No. 493198. July 28, 2011. Singh was suspended on an interim basis based upon discipline imposed in New Jersey.

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 BRIAN R. BROWN. Bar No. 396000. On February 22, 2010, the Grievance Committee of the North Carolina State Bar censured Brown.

IN RE DAVID C. JONES. Bar No. 449684. On June 20, 2011, the Fifth District Section I Subcommittee of the Virginia State Bar publicly reprimanded Jones without terms.

IN RE JOHN M. GREEN. Bar No. 476592. On November 30, 2010, the Attorney Grievance Commission of Maryland reprimanded Green.

IN RE HAROLD J. PARETI. Bar No. 184903. On February 4, 2010, the Disciplinary Review Board of the Supreme Court of New Jersey admonished Pareti.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE RICHARD W. BALSAMO. Bar No. 248823. July 13, 2011. Bar Counsel issued Balsamo an informal admonition. In a motion for pro hac vice admission to the District Court of the Virgin Islands, Division of St. Croix, Balsamo made a misrepresentation by omission by failing to state the full circumstances underlying his previous discipline. Rules 3.3(a)(1) and 8.4(c).

IN RE ELMER D. ELLIS. Bar No. 423276. June 28, 2011. Bar Counsel issued Ellis an informal admonition for knowingly revealing a client’s secret. Rule 1.6(a)(1).

IN RE ANNE P. HOVIS. Bar No. 412531. July 13, 2011. Bar Counsel issued Hovis an informal admonition. While representing a client, Hovis inappropriately communicated about the subject of the representation with a party she knew to be represented by another lawyer in the matter. Rule 4.2(a).

IN RE ANNE P. HOVIS. Bar No. 412531. June 30, 2011. Bar Counsel issued Hovis an informal admonition for engaging in conduct that seriously interferes with the administration of justice. Hovis intentionally disregarded a properly served subpoena, thereby impairing plaintiff’s rights in the proceeding. Rule 8.4(d).

IN RE PETER NYOH. Bar No. 501349. July 6, 2011. Bar Counsel issued Nyoh an informal admonition for failing to provide competent representation, failing to serve a client with the skill and care commensurate with that generally afforded by lawyers in similar matters, and failing to represent the client zealously and diligently within the bounds of the law. Rules 1.1(a), 1.1(b), and 1.3(a).

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
.