Washington Lawyer

Bar Counsel: Oh, What a Small World It Is

From Washington Lawyer, October 2013

By Gene Shipp

barcounselA long time ago (32 years or so), the biggest concern for the Office of Bar Counsel (OBC) was the adequate representation of indigent criminal defendants by court-appointed counsel, commonly known as the “5th Streeters.”  I was a 5th Streeter before joining OBC. Today, problems with the criminal defense bar are comparatively rare.

I recently attended a whole lot of meetings in San Francisco: The International Conference of Legal Regulators, the National Organization of Bar Counsel (NOBC) Meeting, and the American Bar Association (ABA) Center for Professional Responsibility Policy Implementation Committee Meeting. The focus of those meetings was not on the criminal defense bar but rather on mortgage and consumer debt fraud, the movement of attorneys internationally, facilitating cooperation between ethics regulators and a myriad of other agencies, and the implementation of changes to the ABA Model Rules of Professional Conduct recommended by the Commission on Ethics 20/20. The world is not as simple as when I started working in ethics enforcement.

Below are some random observations from that week’s series of meetings.

In preparing for the closing session of the International Legal Regulators Meeting, which I was co-moderating with a regulator from British Columbia, it dawned on me that during my tenure at OBC, our office had worked with, chased attorneys to, or otherwise had an interest in the legal profession in many countries, including Germany, Great Britain, Iran, Jamaica, Nigeria, Saudi Arabia, South Korea, and Taiwan. The first meeting of this fledgling organization occurred in September 2012 with 30 countries represented. Our attendance was a direct result of the Conference of Chief Justices’ resolution calling for disciplinary counsel in the United States to prepare the path for exchange of disciplinary matters and information with international regulators.[1] As of June 30, 2013, D.C. Bar membership records showed 1,297 members with addresses outside the United States, including 443 members of firms, 301 in-house counsel, 117 solo practitioners, 82 government lawyers, 48 in academia, and the rest in other types of practice. We are beginning to cooperate with other countries about our attorneys who are disciplined in the United States and who then move to foreign jurisdictions. We need the cooperation of foreign officials, including prosecutors, to investigate and prosecute foreign convictions of members of the D.C. Bar. The international meeting went a long way toward establishing relationships and understanding the correct methods of accessing information and documents in other jurisdictions. We are now exploring an international database of disciplined attorneys similar to the ABA database, which is absolutely critical to our enforcement.

The international meeting included sessions on effective regulation, risk-based regulation (almost unknown in the United States), the role of intelligence and investigation in regulation, fitness-to-practice issues, keeping lawyers equipped to practice, and the challenges of dual qualification for attorneys admitted in international practice. It was an eye-opening look at the worldwide practice of law and the support of that practice. A speaker aptly described the United States  as using a “firehouse” model: We sit in the firehouse and wait for the bell to ring. We deal with the fire and return to the firehouse for the next bell. A number of countries have more proactive regulation schemes. We will have to think about what we can do other than continuing legal education.

NOBC’s current developments session was largely focused on mortgage and consumer debt fraud. Too many younger and older attorneys are being used as shills by boiler operations that promise the world to those in financial trouble, but then take the fees and call it a day without doing any actual work. These attorneys are lending their name for a paycheck or a cut of the action to the detriment of the public. It seems like a lot of the lawyers involved are just trying to survive and this is a job. It does lead to a very sudden end to a professional career.

The main focus for NOBC was reviewing our relationships with other agencies and groups. One such group is the Organization of Bar Investigators (OBI), an organization of regulatory investigators that was created by NOBC in 2003. Not only does it form the relationships necessary for cooperation in the United States, but it also establishes relationships with the rest of the world. Chuck Anderson, OBC’s manager of Forensic Investigations, appeared on a panel to discuss the educational programs provided by OBI. Azadeh Matinpour, our investigative attorney who wrote our last column, was on the Program Committee and moderated a terrific presentation on how to obtain and preserve electronic evidence.

I also attended a meeting of the ABA Policy Implementation Committee, which has the mandate to follow and advise on ABA Model Rules adoption. Delaware has adopted the first part of the ABA Ethics 20/20 changes to the Rules of Professional Conduct. Eighteen jurisdictions are now studying the changes, including the D.C. Bar Rules of Professional Conduct Review Committee. So change is coming. Please remember to keep up with the rules that affect your practice.

Finally, a point of personal pride for OBC: Our own Lawrence Bloom is now the president of NOBC. He is the third president to come from our office and the 50th president of the organization. We are very proud, g.

Gene Shipp serves as bar counsel for the District of Columbia.

[1] Conference of Chief Justices, Resolution 2: In Support of Cooperation Among United States and European Disciplinary Bodies (2009), available at http://bit.ly/14WWplp; see also ABA House of Delegates Resolution 104 (“Guidelines for an International Regulatory Information Exchange”), available at www.abanow.org.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE DOUGLAS R. ARNTSEN. Bar No. 483328. July 31, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Arntsen because his crime of grand larceny in the first degree involved moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE ABIGAIL ASKEW. Bar No. 497703. July 31, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Askew for 30 days, stayed for a one-year probation period with conditions. While appointed to represent a single client on appeal to the D.C. Court of Appeals from a denial of the client’s motion to vacate his criminal conviction, Askew failed to communicate with her client and to keep him informed, failed to file the brief with the court, failed to comply with the court’s orders to file the brief, and failed to timely provide her client’s files to successor counsel, as ordered by the court. Rules 1.1(a), 1.1(b), 1.3(a), 1.4(a), 1.4(b), 1.16(d), 3.4(c), and 8.4(d).

IN RE ROBERT S. FASTOV. Bar No. 56333. July 31, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Fastov for 18 months with fitness for pursuing frivolous claims, engaging in harassing tactics, disobeying court orders, and engaging in conduct that seriously interfered with the administration of justice. The disciplinary violations in this matter emanate from two unrelated civil cases. The first case involved Fastov pursing civil litigation against an auction house that allegedly breached their agreement for its refusal to sell Fastov’s painting without an opinion on its authenticity. The second case involved Fastov pursing civil litigation against a private, nonprofit corporation, which operates a recreational pool and tennis club, and against a number of board members of that corporation. Rules 3.1, 3.2, 3.4(c), 4.4(a), and 8.4(d).

IN RE SEAN PATRICK GJERDE. Bar No. 479588. July 26, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Gjerde based upon his guilty plea in the U.S. District Court for the Eastern District of California to conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 371 and 1341, a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE ANDREW J. KLINE. Bar No. 441845. July 31, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Kline for 30 days. While serving as an Assistant U.S. Attorney, Kline intentionally failed to disclose information requested by the defense that Kline as a prosecutor knew, or reasonably should have known, tended to negate the guilt of the accused. Rule 3.8(e).

IN RE STEPHEN T. YELVERTON. Bar No. 264044. July 30, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Yelverton for 90 days with a fitness requirement. While representing a third-party witness who was the alleged victim of simple assault, Yelverton failed to provide competent representation to the client; failed to serve the client with the skill and care commensurate with that generally afforded to clients by other lawyers in similar matters; filed frivolous motions for which there was no basis in law and/or fact and no good-faith argument for an extension, modification, or reversal of existing law; and engaged in conduct that seriously interfered with the administration of justice. Rules 1.1(a), 1.1(b), 3.1, and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
IN RE STEPHANIE Y. BRADLEY. Bar No. 288910. July 11, 2013. The D.C. Court of Appeals suspended Bradley for two years with fitness for engaging in ethical misconduct in two unrelated matters. Specifically in the first matter, while serving as a court-appointed guardian, Bradley failed to provide competent representation and to represent the ward with the skill and care commensurate with that generally afforded by lawyers in similar matters, failed to represent the ward with zeal and diligence, intentionally failed to seek the lawful objectives of the ward, failed to act with reasonable promptness, and engaged in conduct that seriously interfered with the administration of justice. In the second matter, while serving first as a court-appointed guardian and conservator for a ward, then as personal representative of the ward’s estate after the ward died, Bradley failed to provide competent representation and to represent the ward with the skill and care commensurate with that generally afforded by lawyers in similar matters, failed to represent the ward with zeal and diligence, intentionally failed to seek the lawful objectives of the ward, failed to act with reasonable promptness, and engaged in conduct that seriously interfered with the administration of justice. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b), 1.3(c), and 8.4(d).

IN RE CHARLES F. DAUM. Bar No. 952481. July 11, 2013. The D.C. Court of Appeals disbarred Daum as a result of his conviction in the U.S. District Court for the District of Columbia of three counts of obstruction of justice, in violation of 18 U.S.C. § 1503; one count of conspiracy to obstruct justice, in violation of 18 U.S.C. §§ 371 and 1503; and two counts of subornation of perjury, in violation of 18 U.S.C. § 1622, crimes involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE ROBERT A. HUFF. Bar No. 454716. July 11, 2013. The D.C. Court of Appeals disbarred Huff. Huff pleaded guilty before the U.S. District Court for the Eastern District of Wisconsin to conspiring to distribute a controlled substance (1,000 or more kilograms of marijuana), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846, and 18 U.S.C. § 2, a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE MATTHEW F. SHANNON. Bar No. 218651. July 18, 2013. The D.C. Court of Appeals suspended Shannon for 90 days. Shannon violated multiple Rules of Professional Conduct in connection with estate planning services he rendered to an elderly client. Specifically, Shannon failed to provide competent representation, and failed to serve his client with the skill and care generally afforded to clients by other lawyers in similar matters; failed to set forth in writing within a reasonable time after commencing representation that he would not charge for his services or costs; failed to advise his client to seek the advice of independent counsel and proceeded without his client’s written consent before he obtained a joint tenancy of his client’s house; prepared a testamentary instrument giving himself a substantial gift; failed to maintain complete records of the property in his possession (specifically documents relating to the transfers of his interests in his client’s real property) for a period of five years after the termination of the representation; and failed to maintain complete records of the handling, maintenance, and disposition of all funds, securities, and other properties belonging to another person while in his possession, from the time of receipt to the time of final distribution, and failed to preserve such records for a period of five years after final distribution of such properties. Rules 1(a), 1.1(b), 1.5(b), 1.8(a), 1.8(b), and 1.15(a) and D.C. Bar R. XI, § 19(f).

IN RE KEITH J. SMITH. Bar No. 415529. July 25, 2013. The D.C. Court of Appeals disbarred Smith. This case involves four consolidated matters: The probate of two estates (Count 1), the foreclosures on two properties involved in tax auctions (Counts 2 and 3), and a civil action wherein Smith was a party (Count 4). In Count 1, Smith violated Rules l.l(a) and (b) (competence/skill and care), 1.3(a) (diligence and zeal), l.7(a) and 1.7(b)(1)–(3) (conflict of interest: general), 1.9 (conflict of interest: former client), and 1.16(a)(l) and (a)(3) (declining or terminating representation). In Count 2, Smith failed to represent his two clients competently (Rules 1.1(a) and (b)), or diligently or with reasonable promptness (Rules 1.3(a) and (c)); failed to adequately communicate with his clients (Rule 1.4(a)); failed to promptly notify the D.C. Office of Tax and Revenue and his clients that he had received funds intended for them (Rule 1.15(b)); and recklessly misappropriated their funds (Rule 1.15(a)). In Count 3, Smith violated Rules 1.1 (a) (competent representation) and 1.3(a) (lack of diligent representation). In Count 4, Smith violated Rules 3.3(a)(l) (knowingly making a false statement of fact or law to a tribunal); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (conduct that seriously interfered with the administration of justice by “making a knowingly false statement of material fact to a tribunal”). Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.7(a), 1.7(b)(1)–(3), 1.9, 1.15(a), 1.15(b), 1.16(a)(l), 1.16(a)(3), 3.3(a)(l), 8.4(c), and 8.4(d).

IN RE GEORGE G. STROTT JR. Bar No. 222653. July 11, 2013. The D.C. Court of Appeals granted Strott’s petition for reinstatement.

IN RE CLAUDETTE M. WINSTEAD II. Bar No. 447368. July 11, 2013. The D.C. Court of Appeals ordered Bar Counsel to issue an informal admonition to Winstead. Specifically, Winstead’s misconduct was based on letters and numerous other documents addressed from Winstead or her assistant to three clients and several third parties indicating that she was authorized to practice law in Maryland when she was not. Additional misconduct was based on statements in three retainer agreements indicating that the disciplinary rules in Maryland, Virginia, and Pennsylvania allowed Winstead to provide counsel with regard to “transactional” matters despite her lack of a law license in those jurisdictions. Rules 7.1(a) and 7.5(a).

Interim Suspensions Issued by the District of Columbia Court of Appeals
IN RE ELLIS S. FRISON JR. Bar No. 478092. July 25, 2013. Frison was suspended on an interim basis pursuant to D.C. Bar R. XI, § 9(g), pending final action on the Board on Professional Responsibility’s June 3, 2013, recommendation of disbarment.

IN RE DARRELL N. FULLER. Bar No. 499204. August 13, 2013. Fuller was suspended on an interim basis based upon his conviction of a serious crime in the District Court of Harris County, Texas.

IN RE CHRISTOPHER M. JOHNS. Bar No. 433783. August 29, 2013. Johns was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE LEODIS CLYDE MATTHEWS. Bar No. 284182. August 29, 2013. Matthews was suspended on an interim basis based upon discipline imposed in California.

IN RE HENRY D. MCGLADE JR. Bar No. 379954. July 10, 2013. McGlade was suspended on an interim basis based upon discipline imposed in Maryland.

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 DAVID A. DOWNES. Bar No. 416967. On June 26, 2013, the Virginia State Bar Disciplinary Board issued Downes a reprimand with terms.

IN RE MORRIS E. FISCHER. Bar No. 490369. On April 23, 2013, the Attorney Grievance Commission of Maryland issued Fischer a reprimand.

IN RE CHRISTOPHER LOUIS MARKHAM. Bar No. 993984. On April 23, 2013, the Fifth District—Section II Subcommittee of the Virginia State Bar issued Markham a public reprimand without terms for misconduct that included holding himself out as authorized to provide services to the public in Virginia while only admitted for the limited purpose of acting as corporate counsel.

Informal Admonitions Issued by the Office of Bar Counsel
IN RE WILLIAM J. BENNETT. Bar No. 416646. June 25, 2013. Bar Counsel issued Bennett an informal admonition. While representing a client who served as personal representative of his mother’s estate, Bennett failed to provide competent representation, failed to serve the client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters, failed to represent the client zealously and diligently within the bounds of the law, and failed to communicate the basis or rate of the legal fee to the client in writing, before or within a reasonable time after commencing representation. Rules 1.1(a), 1.1(b), 1.3(a), and 1.5(b).

IN RE STEVEN B. SNYDER. Bar No. 419819. June 24, 2013. Bar Counsel issued Snyder an informal admonition. While serving as an Assistant United States Attorney for the District of Columbia and representing the United States in the prosecution of two individuals, Snyder made a false statement of fact to a tribunal or failed to correct a false statement of material fact previously made to the tribunal. Rule 3.3(a)(1).

IN RE CLAUDETTE M. WINSTEAD II. Bar No. 447368. July 12, 2013. Bar Counsel issued Winstead an informal admonition. Winstead’s misconduct was based on letters and numerous other documents addressed from Winstead or her assistant to three clients and several third parties indicating that she was authorized to practice law in Maryland when she was not. Additional misconduct was based on statements in three retainer agreements indicating that the disciplinary rules in Maryland, Virginia, and Pennsylvania allowed Winstead to provide counsel with regard to “transactional” matters despite her lack of a law license in those jurisdictions. Rules 7.1(a) and 7.5(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.dccourts.gov/internet/opinionlocator.jsf.