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Washington Lawyer

Better Call Saul!

From Washington Lawyer, September 2015

By Saul Jay Singer

The following is the latest in a series of articles in which the Ethics Guru answers your questions about the District of Columbia Rules of Professional Conduct.

Dear Ethics Guru:

The Cat in the Hat’s my client,
one I truly do adore,
but he’s not behind the kitchen sink,
he’s not behind the door.
He’s not up on the ceiling,
he’s not down on the ground,
in fact, he isn’t anywhere,
he’s nowhere to be found.

But with a settlement on the table,
which ups the offer by half,
I wonder if I am able
to accept on Cat’s behalf?

T. Geisel, Esquire

Dear Dr. (It is “doctor,” isn’t it?) Geisel:

Ethics folder Not only can you not accept without first advising Cat of the specific offer on the table and obtaining his informed consent to settle, but you will probably have to withdraw from the representation.

Rule 1.4 (Communication) lays out the broad duty of a lawyer to “keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Though this would clearly include the lawyer’s duty to communicate a settlement offer to the client, the drafters of the D.C. Rules, believing that such communications were particularly important, nevertheless adopted an additional rule:

A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication.

Rule 1.4(c) (emphasis added). As comment [1] strikingly notes: “Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter.” Thus, in Legal Ethics Opinion 289 the Legal Ethics Committee ruled that the client generally cannot, through an advance agreement or instruction to counsel, waive his or her right to accept or reject a settlement:

A client’s right to accept or reject a settlement offer cannot be contracted away in advance . . . This rule is designed to preserve the client’s right to accept or reject a settlement offer, and it requires that a client be able to exercise his or her judgment at the time a settlement offer is communicated.

(Emphasis added). Thus, suppose Cat had instructed you at the beginning of the case “I’m a busy man—okay, okay, a busy anthropomorphic feline, whatever—and I don’t have time to waste. Do the best that you can to settle the case for as much as you can. Don’t even bother to bring any offer to me less than $50K, and if $50K is the best you can do, just accept it,” you would still have the ethical duty to bring offers less than $50,000 to Cat, and you still could not accept an offer, even a very substantial one, without first obtaining your client’s informed consent.

That leaves you essentially in limbo because your client has disappeared and you have no way to communicate with him. Moreover, not having obtained Cat’s informed consent to disclose, Rule 1.6 (Confidentiality of Information) prevents you from telling anyone, including the trial judge, that your client is missing. Thus, for example, were the judge to ask “Where is your client, Dr. Geisel?” Rule 1.6 would prevent you from answering truthfully, and Rule 8.4(c), among others, would prohibit you from answering falsely. Similarly, you could not ethically answer the question “What is your client’s position on defendant’s settlement offer?” It is clear that, as the result of Cat’s disappearance, you are unable to go forward with the representation competently, diligently, zealously, etc., and, as such, you will have to withdraw.1

Dear Ethics Guru:

I think that I shall never see,
a client who timely pays his fee,
and doesn’t expect my work for free,
or put cash flow in jeopardy.
Who pays expenses regularly,
whether hourly or contingency.
How I long for a client who, just once, you see,
facilitates serenity.

Now, I have a client who every day
blows off my invoices, refuses to pay.
But he’s into me for $100K,
and I simply can’t go on this way.

I’ve told him that I will withdraw,
but he claims that that’s against the law.
“And if you dare withdraw,” he says with glee,
“I’ll file a complaint with OBC.”2

I must get out, but the action in tort
begins Monday morning in Superior Court.
Letters are written by fools like me,
but only God can set me free.

Caitlyn Kilmer

Dear Ms. Kilmer:

Actually, the trial judge can also “set you free,” but he or she probably will decline to do so in this case.

A lawyer who seeks to withdraw from a representation must have a proper basis for doing so pursuant to Rule 1.16 (Declining or Terminating Representation). Rule 1.16(a) lays out three scenarios where a lawyer must withdraw from a representation, none of which apply here. Rule 1.16(b) identifies various bases for voluntary withdrawal, including two that arguably establish a legitimate basis for your withdrawal in this case: Rule 1.16(b)(4), where the “representation will result in an unreasonable financial burden on the lawyer,” and Rule 1.16(b)(3), when the “client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

Your client owes over $100,000 and has refused all your demands for payment, so both these provisions would seem to provide ample basis to support your filing a motion to withdraw.3 As such, you need not be concerned about your client’s claim that you would be acting inappropriately if you seek to withdraw, nor should you lose any sleep over his threat to file a Bar complaint against you.

In addition, Rule 1.16(b) expressly permits a lawyer to withdraw from a representation at any time if, as stated in the introductory language to the Rule, “withdrawal can be accomplished without material adverse effects on the interests of the client.” This generally constitutes a temporal limitation, that is, the rule permits withdrawal if the client has sufficient time to find another lawyer, and the new lawyer has a reasonable opportunity to get up to speed on the case.4

In your case, however, trial is set to commence on Monday morning, and your client cannot reasonably, in less than a week, be expected to find and retain new counsel who could be prepared to go to trial in a matter of days. It is for this reason that it is improbable that the court, which has ultimate discretion in withdrawal matters and does not like to see its trial schedule slip, will let you out of the case, even where you have a deadbeat client on whose behalf you will have to incur the significant additional expenses of trial. Thus, in conclusion:

I think that I shall never see,
a lawyer so trapped in a case like thee.
Though Rule 1.16 provides a key,
the court will likely not agree.

Dear Ethics Guru:

The outlook wasn’t brilliant in the trial court that day,
I saw the vote as four to two, with eight jurors to sway.
But when my best closing argument died, at first, and my second did the same,
I feared that this would spell the end of my client’s trial game.

A straggling few in the courtroom got up in deep despair. The rest
clung to the hope which springs eternal in the human breast;
they thought, “If only K.C. could come up with a good and new approach,
we’d put up even money that those jurors he could coax.”

But the record was now set in stone, the law was well established,
and I suddenly needed a bathroom break, I suddenly was famished.
So I decided that I’d just go for it, there was not much to lose,
and if I was successful I would make the evening news.

All eyes were fixed on me, that day, as all logic I forsook,
I threw my legal papers down, and gave them all a look.
Defiance flashed in my eyes, a sneer curled K.C.’s lip,
as I gave it my last best shot to right the sinking ship.

‘The law is an ass,’ quoth Mr. Bumble in Dickens’ Oliver Twist,
and blindly applying an inequitable law is an urge you must resist.
So do what’s right, ignore the law, I respectfully insist,
so that all charges against us are summarily dismissed.”

Oh, somewhere in this favored land the sun is shining bright,
the band is playing somewhere, and somewhere hearts are light;
and somewhere men are laughing and the joy is unrestricted,
but there is no joy in Washington—my client was convicted.

K.C. at the Bar

Dear Mr. Thayer (Yes, I know who you are!):

Because the D.C. Legal Ethics Program may only provide informal guidance prospectively, I stress that I am not in any way commenting here on your conduct in this specific case but, rather, generally addressing the question of jury nullification under the D.C. Rules. Moreover, as the Legal Ethics Committee makes clear in Legal Ethics Opinion 320, “[w]hether a particular jury nullification argument contravenes the Rules of Professional Conduct is, of course, case-specific and outside the scope of the Committee’s inquiry.”

Though D.C. has no rule or statute expressly authorizing jury nullification, it is well recognized under the common law that jurors may “acquit a defendant on the basis of their own notion of justice, even if they believe he or she is guilty as a matter of law.”5 However, your sad tale squarely presents a different question: whether it is ethical for a lawyer to appeal to the members of a jury to disregard the law.

In Legal Ethics Opinion 320, the Legal Ethics Committee determined that:

Current legal standards strongly disfavor jury nullification and prohibit express exhortations that a jury nullify the law. Accordingly, a lawyer may not, consistent with the rules of professional conduct, expressly urge a jury to disregard the law . . . The legal system continues, however, to permit juries to exercise the power to nullify.

However, the Committee goes on to carefully draw a line between a lawyer’s overt nullification arguments, which are unethical, and “good-faith arguments with incidental nullification effects,” which are permitted and, indeed, specifically contemplated by the Rules. Thus, “[a] lawyer may, within the bounds of zealous advocacy, advance arguments that have a good faith evidentiary basis even though those same arguments may also heighten the jury’s awareness of its capacity to nullify.” Though the Committee, acknowledging the difficulty inherent in such line-drawing, notes that “it is in practice often impossible to distinguish between these two forms of argument,” it nonetheless concludes “in the context of criminal advocacy that tension should be resolved in favor of permitting any evidentiary argument for which a reasonable good faith basis exists, provided that the lawyer exercises his ability to do so within the constraints of existing law.”

It would be well worth your while to review Opinion 320 for some examples of permitted and prohibited jury nullification arguments and to gain greater insight into the variables underlying this important ethics issue.

Dear Ethics Guru:

The one-L student,
he’s overworked.
The two-L was prudent,
he summer-clerked.
But I will bet
against all odds,
there aren’t any
three-L jobs.

O. Nash

Dear Ogden (It is you, isn’t it?):

Nice try, but this article has already gone from bad to verse, and your poem is not actually all that well known.6 And in any case, you haven’t posed an ethics question.

Legal Ethics counsel Saul Jay Singer, Hope Todd, and Erika Stillabower are available for telephone inquiries at 202-737-4700, ext. 3232, 3231, and 3198, respectively, or by e-mail at ethics@dcbar.org.

Notes
1 Note that there are significant additional issues with respect to withdrawal that are beyond the scope of this response, including: (1) your duty pursuant to Rule 1.16(c) to continue, as best as possible under the circumstances, to represent the client until you file a motion to withdraw and the court grants it; and (2) meeting your strict Rule 1.6 duty to preserve the client’s confidences and secrets in moving to withdraw, which effectively means that you cannot tell the court the basis for your withdrawal motion absent a direct court order to the contrary. See my January 2011 Speaking of Ethics column, “Going Through ‘Withdrawal.’” 
2 The Office of Bar Counsel is charged with investigating and prosecuting D.C. lawyers who violate the Rules.
3 As to other significant issues related to withdrawal, see endnote 1, supra. 
4 This does not mean, as many unhappy clients try to argue, that a lawyer may not withdraw until the client successfully retains new counsel, only that the client has a reasonable opportunity to do so.
5 Reale v. United States, 573 A.2d 13 (D.C. 1990).
6 See “The Llama” by Ogden Nash.

 

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

IN RE BRYNEE K. BAYLOR. Bar No. 475406. June 19, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Baylor by consent.

IN RE RICHARD A. KASSEL. Bar No. 441839. June 19, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Kassel by consent.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE ROBIN T. BROWDER. Bar No. 482885. June 4, 2015. The D.C. Court of Appeals approved a petition for negotiated discipline and suspended Browder for 90 days, execution suspended in favor of one-year unsupervised probation on the condition that Browder is not the subject of another disciplinary complaint resulting in a finding that she violated disciplinary rules of any jurisdiction where she is licensed, promptly notifies Bar Counsel of any ethics complaint filed against her and its disposition, notifies Bar Counsel and the Board on Professional Responsibility in writing if and when she chooses to practice as an attorney representing clients, and completes a continuing legal education course approved by Bar Counsel and provides proof of attendance within 10 days of taking the course. However, if Browder fails to comply with any of the conditions and her probation is revoked, she shall be suspended for 90 days with the requirement to prove fitness as a condition for reinstatement. The admitted violations of the D.C. Rules of Professional Conduct stem from Browder’s neglect in eight separate personal injury cases and misrepresentations made to conceal her neglect that occurred during the years 2005 to 2007.

IN RE ALEXANDER DJORDJEVICH. Bar No. 445828. June 11, 2015. The D.C. Court of Appeals approved a petition for negotiated discipline and suspended Djordjevich for nine months with fitness. This case involved serious neglect, with other companion violations, in three different matters involving five clients over a period of several years. Djordjevich took full responsibility for his actions and has made restitution to his clients. Count I: Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.4(b), 3.4(c), 8.1(b), and 8.4(d) and D.C. Bar R. XI, § 2(b)(3); Count II: Rules 1.1(a), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.4(a), 1.4(b), 3.4(c), 8.1(b), and 8.4(d) and D.C. Bar R. XI, § 2(b)(3); and Count III: Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.4(b), and 1.16(d).

IN RE J. MICHAEL FARREN. Bar No. 368895. June 25, 2015. The D.C. Court of Appeals disbarred Farren. On July 11, 2014, in the Stamford, Connecticut, Superior Court, Farren was found guilty of attempted murder, in violation of C.G.S. §§ 53a-49(a)(2) and -54a(a) (2013); assault in the first degree, in violation of C.G.S. § 53a-59(a)(1) (2013); and risk of injury to a minor, in violation of C.G.S. § 53-21(a)(1) (2013). The court found Farren’s conviction for attempted murder was a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE PETER IBE. Bar No. 481265. June 11, 2015. The D.C. Court of Appeals disbarred Ibe by consent.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE JOHN K. BURKHARDT. Bar No. 370517. June 17, 2015. Burkhardt was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE NAREN CHAGANTI. Bar No. 464217. June 17, 2015. Chaganti was suspended on an interim basis based upon discipline imposed in Missouri.

IN RE GERALD I. KATZ. Bar No. 237925. June 17, 2015. Katz was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE ANTHONY MCDANIEL. Bar No. 976583. June 17, 2015. McDaniel was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE CHARLES A. PRICE. Bar No. 970848. June 17, 2015. Price was suspended on an interim basis based upon discipline imposed in Virginia.

IN RE JAMES C. ZINMAN. Bar No. 182121. June 29, 2015. Zinman was suspended on an interim basis pursuant to D.C. Bar R. XI, § 13(e).

Informal Admonitions Issued by the Office of Bar Counsel

IN RE CHARLES W. COBB. Bar No. 354647. June 8, 2015. Bar Counsel issued Cobb an informal admonition. Cobb, as a representative of the United States, responded to a question from a Superior Court judge with a misleading answer. Rule 8.4(c).

IN RE TRACY W. DRUCE. Bar No. 489891. June 8, 2015. Bar Counsel issued Druce an informal admonition. Druce violated the Rules based on his direct supervisory authority over a nonlawyer assistant who signed Druce’s name on application papers with false statements and submitted them to the U.S. Patent and Trademark Office. Druce failed to represent the client zealously and diligently within the bounds of the law, failed to act with reasonable promptness in representing the client by delegating his responsibilities to his nonlawyer assistant, and failed to make reasonable efforts to ensure that the nonlawyer’s conduct was compatible with the professional obligations of a lawyer. Rules 1.3(a), 1.3(c), and 5.3(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 at www.dcattorneydiscipline.org. 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.