Agreements: A Lawyer’s Bread and Butter
By Joyce E. Peters
In 1850, while preparing his notes for a law lecture, Abraham Lincoln wrote: “The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client.”
These words written by the young Lincoln are as true today in 2002 as they were in 1850. Anyone who has been in private practice knows that “attending to fees” can be a time-consuming process.
Most lawyers in private practice expend considerable effort in documenting their time, allocating costs, and preparing client bills. Carefully crafted fee agreements, prompt accurate billing, and timely collection of fees are essential to a successful private legal practice. Clearly worded fee agreements and prompt, accurate billing are also critically important in maintaining client confidence in the lawyer who is handling the case. By keeping the client informed about the case status and the amount and type of effort being directed to the client’s matter, the lawyer greatly improves the chances of being paid promptly for the work performed.
Thus, a clearly worded fee agreement and well-prepared bills meet the needs of both the lawyer and the client, providing vehicles that evidence not only the agreement between the lawyer and the client but also the work performed by the lawyer on the client’s behalf. Together they encourage the client to pay promptly.
So why would a lawyer ever fail to provide a fee agreement to a client, particularly if it will assist the lawyer in being paid for his or her services? And how has the lawyer arrived at the fee being charged? Is it reasonable?
Here are questions that Bar Counsel asks: Where is the writing evidencing the fee agreement? Why don’t you have a fee agreement in this case? What evidence do you have to show what work was done? How was your fee determined?
Although the general concept of payment for work performed is simple, and documenting the agreement and the work need not be difficult, many lawyers fail to provide their clients with the necessary writing and the details concerning their efforts on behalf of clients. Failing to provide a new client with a writing documenting the fee agreement or failing to provide a written fee agreement in a contingency fee case is the quickest way to receive a writing from Bar Counsel! This shouldn’t happen, and can be easily avoided.
Rule 1.5 of the District of Columbia Rules of Professional Conduct sets forth the professional standards on fees and fee agreements. Rule 1.5(a) directs that “[a] lawyer’s fee shall be reasonable” and lists eight factors to be considered on the issue of reasonableness. Although Bar Counsel does not investigate many cases involving fees, because most fee disputes are referred to the D.C. Bar Attorney/Client Arbitration Board for resolution, Bar Counsel does investigate and prosecute cases involving unreasonable fees and fee agreement violations.
In one such case, In re Shaw, an attorney charged an unreasonable fee for processing an uncontested insurance personal injury protection (PIP) claim. Although Shaw had a one-third contingency fee agreement with his client (the victim of a car accident), the other driver told Shaw that his insurer was sending Shaw $2,500 as a PIP payment. Pursuant to his fee agreement, Shaw then took an $800 fee, which the Board on Professional Responsibility found was unreasonable in violation of Rule 1.5(a).
In discussing the board’s finding of a Rule 1.5(a) violation, the District of Columbia Court of Appeals stated: “Respondent does not here dispute that he took an unreasonable fee when he charged $800 in an uncontested $2500 PIP claim. See Attorney Grievance Comm’n v. Kemp, 303 Md. 664, 496 A.2d 672, 677–679 (1985) (attorney may not charge more than a minimal fee for processing an uncontested PIP claim).”
Shaw’s fee far exceeded reasonable compensation for the amount of his work. After reviewing the analysis provided by the board, which noted that “sanctions ranging from informal admonitions to suspension have been imposed in cases with an excessive or unreasonable fee violation,” the court imposed a public censure for violating Rule 1.5(a) and one other rule. In essence, the lawyer’s error was in charging a fee that exceeded the amount customarily charged for assisting a client in processing a PIP claim, regardless of the terms of his fee agreement with his client. His fee was simply unreasonable.
In another case, In re Bernstein, the court found as one of several rule violations, a violation of Rule 1.5(a), when a lawyer in a workers’ compensation case took a fee ($9,000) in excess of the amount authorized by the Industrial Commission of Virginia ($6,000), even though such approval was required. The client had agreed to the higher fee amount and was never informed that the commission had disapproved part of the fee request. Bernstein, who strongly disagreed with the commission’s decision, simply kept the additional sum as part of his fee without bothering to tell his client.
The court stated: “The retention of the increased fee was unlawful, and therefore unreasonable.” As part of its sanction decision, the court rejected Bernstein’s argument that he did not owe his client any money and ordered, as a condition of reinstatement, that Bernstein pay restitution to his client in the amount of $3,000 plus interest.
Thus, a fee can be unreasonable if it is prohibited by law or is not properly authorized under a law requiring such authorization. Moreover, collecting an unreasonable fee can have financial consequences for the lawyer as part of the disciplinary sanction.
In the extreme, a lawyer who takes an unreasonable or unauthorized fee from entrusted funds belonging to a client may not only face disciplinary charges involving the reasonableness of the fee under Rule 1.5(a), but also be required to defend against a charge of misappropriation under Rule 1.15(a). Adding the element of entrusted funds as the source of the fees makes the issue of an unreasonable fee a more serious matter.
In In re Utley the conservator of an estate, who knew that prior court approval of fees was required, repeatedly paid herself fees from estate funds without court approval. The court found that Utley had misappropriated funds, and ordered her disbarred. By paying herself fees from entrusted funds without the required approval, Utley crossed the line into the area of misappropriation and received the most serious sanction.
The link between Rule 1.5(a) and Rule 1.15(a) was also considered by the court in In re Fair, a case involving fee payments to a lawyer serving as both personal representative and attorney for an estate. This case involves a permutation of the same sort of issues as in Utley and the other fee cases: taking of fees by an experienced practitioner without court approval, overpayment of fees, and payment of fees from entrusted funds. Although the court found that Fair had twice misappropriated funds in taking her fees from the estate, it concluded that her actions did not warrant disbarment, as they were neither intentional nor reckless in the “ambiguous probate culture” that existed. The court imposed a one-year and 60-day suspension for the two incidents of misappropriation and other neglect-related counts. What is clear from these cases is that what starts as a simple fee entitlement question may well implicate other rules and become a much more serious matter.
Beyond the issue of the reasonableness of the fee, however, Rule 1.5(b), Rule 1.5(c), and Rule 1.5(e) require the lawyer to use a writing to set forth the fee agreement in three situations: (1) when the lawyer does not regularly represent the client, (2) when the fee is contingent, and (3) when the representation will be carried out and the fees shared by lawyers in different firms.
These rules make a lot of sense. A new client is entitled to know and understand how the lawyer will charge for the legal services provided. Comment  to Rule 1.5 recognizes that providing a written fee statement to the client “reduces the possibility of misunderstanding.” Misunderstandings may lead to Bar complaints, malpractice suits, or fee arbitration.
A client involved in a case in which the outcome is uncertain should understand how the fee will be determined, who is responsible for payment of various expenses and costs, and how the final distributions will be determined. Likewise, if the case will involve more than one lawyer, the client should agree to the participation of the other lawyer and understand how the work will be performed and the fees divided. Even a client receiving pro bono services is entitled to understand what the fee arrangement is and what the extent of the representation will be.
So, pay attention to the bread and butter of your practice and “attend to your fee matters.” Reread Rule 1.5, the comments, and the many ethical opinions rendered by the D.C. Bar Legal Ethics Committee to identify fee issues that may cause ethical traps in your practice. Don’t wait for that writing from Bar Counsel! Do your own writings and explain your fees to your clients.
 2 Collected Works of Abraham Lincoln 81 (Rutgers Univ. Press 1953, 1990).
 For additional information about writing or revising your fee agreements, review the “Written Fee Agreement Checklist,” available online from the D.C. Bar Lawyer Practice Assistance Program or by calling 202-737-4700, ext. 3212.
 These factors generally include (1) the time, labor, and skill needed to handle the matter (i.e., the difficulty and novelty of the matter); (2) the likelihood that the lawyer will be precluded from handling other matters; (3) the fee customarily charged locally for the service; (4) the amount involved and results obtained; (5) time limitations from the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer; and (8) whether the fee is fixed or contingent. Even beyond these factors, Rule 1.5(d) prohibits a lawyer from entering into a contingent fee agreement with a defendant in a criminal case, and Rule 1.5(e) declares that any such agreement (or any other fee prohibited by law) is “per se unreasonable.”
 775 A.2d 1123 (D.C. 2001).
 The board also found a violation of Rule 1.15(b) for other misconduct for failing to notify an interested party of the receipt of funds.
 775 A.2d at 1124 (footnote omitted).
 Id. at 1125.
 774 A.2d 309 (D.C. 2001).
 Id. at 313.
 Rule 1.5(f) states that any fee “prohibited…by law is per se unreasonable.”
 698 A.2d 446 (D.C. 1997).
 In the District of Columbia misappropriation is defined as “any unauthorized use of client’s funds entrusted to [a lawyer], including not only stealing but also unauthorized temporary use for the lawyer’s own purpose, whether or not [she] derives any personal gain or benefit therefrom.” In re Pierson, 690 A.2d 941, 947 (D.C. 1997) (case citations omitted).
 780 A.2d 1106 (D.C. 2001).
 Id. at 1113.
 The comments to Rule 1.5 suggest various types of writings that will satisfy the requirements and recognize that the writing may be tailored to the type of legal matter and the type of fees to be billed.
 Rule 1.5(b) reads: “When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.”
 Rule 1.5(c) reads in part: “A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer…, and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated…the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”
 Rule 1.5(e) permits division of a fee between lawyers in different firms only if four criteria are met: (1) the fees reflect how the work is proportioned; (2) the client receives written advice concerning the identity of the lawyers, their division of responsibility, and the effect of the association on the fee charged; (3) the client consents; and (4) the fee is reasonable.
 In its 2000–2001 annual report, the Attorney/Client Arbitration Board (ACAB) reported that 59 fee disputes were filed in fiscal year 2000–2001, compared with 52 in 1999–2000. ACAB also received eight malpractice claims in 2000–2001, compared with two the prior year. The overall caseload handled by the ACAB increased by 24 percent in 2000–2001.
 It’s also a good idea to have both the lawyer and the client sign the “writing” setting forth the fee arrangement and initial all of the pages. This can prevent later disputes and refute allegations like “I never signed any document agreeing to the fee” or “My lawyer changed the pages.” Of course, all fee agreement writings should be retained in the file, particularly if the nature of the fee agreement changes, the representation is protracted, or the terms of the agreement may later be challenged.
Disciplinary Actions Taken by the Board on Professional Responsibility
In re Phyllis J. Baron. 600 F Street NW, Washington, D.C. March 6, 2002. The board recommends that the court suspend Baron for 30 days, with execution of the suspension stayed pending completion of one year of probation under the supervision of a practice monitor and with other conditions. In connection with an appointment under the Criminal Justice Act, Baron failed to communicate with her client during the course of his criminal appeal, to consult him regarding issues to be raised on appeal, to advise him of the court’s decision and his postappeal options, to comply promptly with his requests for information, to explain the matter to the extent reasonably necessary to permit him to make informed decisions regarding the representation, and to release his file after the representation ended.
In re Roy D. Bradley. PO Box 1006, Madison, Virginia. November 14, 2001. The board publicly reprimanded Bradley based upon his public reprimand with terms in Virginia. Bradley prepared a deed of conveyance, purporting to convey a third party’s interest in real estate to his client, caused the third party to execute the deed, and filed it, notwithstanding his knowledge that the third party had no interest in the property. The Virginia court found that he had committed a crime or other wrongful act that reflected adversely on his fitness to practice law; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and advanced a claim on behalf of a client that was unwarranted.
In re John L. Clark Jr. 4956 Moonfall Way, Columbia, Maryland. March 19, 2002. In a reciprocal matter from Maryland, the board recommends that the court suspend Clark for 90 days, with the requirement that he demonstrate his fitness to practice law prior to reinstatement, but with the right to apply for vacation of the fitness requirement if he is summarily reinstated in Maryland. Clark failed to withhold, report, and promptly pay state withholding income taxes between 1993 and 2001. The Maryland court suspended him indefinitely, with the right to seek reinstatement immediately, for committing criminal acts (violations of Maryland tax law) that reflected adversely on his fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice; violating the rules of professional conduct; and failing to safeguard property (the withheld taxes) belonging to a third party, to notify the state promptly of his receipt of the property (by filing the required withholding returns), or to deliver the taxes promptly to the state.
In re Dana W. Johnson. 7504 Burgess Lane, Fort Washington, Maryland. February 21, 2002. In a reciprocal matter from Maryland, where Johnson was disbarred, the board recommends that the court disbar him. Johnson formed a law partnership in Maryland, notwithstanding that he was not licensed to practice there; met and advised clients and executed retainer agreements in the Maryland office; and misled the public and his clients by not including his jurisdictional limitations on the firm’s letterhead. Johnson also contracted to purchase a house from owners who already were in default on their mortgage, filed a petition for bankruptcy on behalf of the owners without their knowledge or permission, filed a stay of foreclosure proceedings in a Maryland court without the knowledge or consent of the owners, and forged the owners’ and his law partners’ names on the bankruptcy petition and other pleadings filed in the bankruptcy and state courts. The Maryland Court of Appeals disbarred him for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice; violating the ethical rules or inducing another to do so; representing clients when his professional judgment on behalf of the clients was adversely affected by his own financial interests; making false statements to tribunals; engaging in the unauthorized practice of law in Maryland; making false or misleading communications about his services; and failing to indicate on his letterhead that he was not licensed in Maryland.
In re Marshall E. Lippman. 1 Fidelian Way, Lincoln Park, New Jersey. February 21, 2002. In a reciprocal matter from New York, where Lippman was disbarred, the board recommends that the court disbar him. Lippman misappropriated funds advanced to him by clients to fund business transactions; committed a criminal act that reflected adversely on his fitness to practice law; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice; knowingly made false statements to a client; neglected legal matters; and failed to cooperate with the disciplinary investigation.
In re Gregory J. O’Duden. 6608 24th Road North, Arlington, Virginia. June 19, 2001. The board publicly reprimanded O’Duden, general counsel to a union, for failing to make reasonable efforts to ensure that attorneys under his direct supervision adhered to the disciplinary rules and, having knowledge of the junior attorneys’ misconduct, failing to take remedial action to avoid or mitigate the consequences. The union, which provided litigation services to its members and collected legal fees for its services, had never established a client trust account. Attorneys under O’Duden’s supervision commingled settlement proceeds belonging to union member clients with the operating funds of the union and failed to deposit entrusted funds into a properly designated trust account.
In re Alfred L. Rehder. Bell, Rehder & Rose, 101 West Jefferson Street, Rockville, Maryland. February 20, 2002. The board recommends that the court disbar Rehder based upon his consent to disbarment in Maryland. Rehder acknowledged that he could not successfully defend against allegations that he had misappropriated entrusted funds; commingled entrusted funds with his own; committed a criminal act that reflected adversely on his fitness as a lawyer; and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice.
In re Cary P. Sklar. 519 South Jefferson Street, Arlington, Virginia. June 19, 2001. The board publicly reprimanded Sklar, associate general counsel to a union, for commingling settlement proceeds belonging to a union member client with the operating funds of the union and failing to deposit entrusted funds into a properly designated trust account. The union, which provided litigation services to its members and collected legal fees for its services, had never established a client trust account.
In re Hendrith V. Smith. Smith & Smith, 10904 Dower House Court, Upper Marlboro, Maryland. February 14, 2002. The board recommends that the court disbar Smith for reckless misappropriation and commingling. Smith deposited settlement funds of a client into his operating account and used funds owed to his client and to third parties for business and personal expenses.
In re E. Newton Steely Jr. 14300 Gallant Fox Lane, Bowie, Maryland. March 14, 2002. The board recommends that the court disbar Steely based upon his consent to disbarment in Maryland. Steely acknowledged that he could not successfully defend against allegations that he had misappropriated real estate settlement funds; commingled real estate settlement funds with his own; committed a criminal act that reflected adversely on his fitness as a lawyer; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and failed to maintain an attorney escrow account.
In re John W. Thyden. Thyden, Gross, Callahan & Oler, 4601 Willard Avenue, Chevy Chase, Maryland. February 7, 2002. The board recommends that the court suspend Thyden for 30 days. In connection with a bankruptcy matter, Thyden undertook representation of one client, a creditor to the bankruptcy petitioner, for the purpose of advancing the interests of other creditors; disregarded the interests of the client; failed to communicate with him or to inform him of a potential settlement offer; filed inappropriate pleadings that delayed the bankruptcy proceeding; and prejudiced the client by subjecting him to sanctions. The board concluded that Thyden had engaged in conduct prejudicial to, and that seriously interfered with, the administration of justice; taken action on behalf of a client when it was obvious that the action was merely to harass or maliciously injure another; brought an adversarial action that was frivolous and without merit; and failed to keep a client informed about the status of a matter, to explain the matter to the client to the extent reasonably necessary to permit the client to make informed decisions concerning the representation, or to inform a client promptly of an offer of settlement.
In re Dushan Zdravkovich. PO Box 246, Riva, Maryland. March 11, 2002.
In a reciprocal matter from Maryland, where Zdravkovich was suspended
indefinitely, the board recommends that the court suspend him for nine
months, with the requirement that he demonstrate fitness to practice
law prior to reinstatement, but with the right to apply for vacation
of the fitness requirement if he is summarily reinstated in Maryland.
While suit was pending against his clients in a state court action filed
against them by their former employer, Zdravkovich filed suit against
the employer in federal court without researching the basis for federal
jurisdiction; then, instead of addressing the jurisdictional deficiencies
called to his attention by the federal court, Zdravkovich attempted
to remove the state court matter to federal court, but failed to inform
the opposing party of his motion in a timely manner, thus forcing the
party to incur unnecessary expenses. Zdravkovich failed to inform one
of his clients of the employer’s motion for sanctions against
the client. He also sued the employer in a second state court action
on behalf of one of the clients, but failed to act on the client’s
instruction to dismiss the suit and attempted to secure a large unearned
fee from the client by threatening criminal prosecution of the client.
The Maryland court found that he had failed to provide competent representation,
to act with diligence or promptness in representing a client, or to
keep clients reasonably informed about the status of their cases; charged
an unreasonable fee; asserted frivolous contentions; violated the rules
of professional conduct; and engaged in conduct prejudicial to the administration
Disciplinary Actions Taken by the District of Columbia Court of
In re Domenic Alongi. 318 Wadsworth Avenue, Tonawanda, New York. March 28, 2002. In a reciprocal matter from New York, the court suspended Alongi for one year, with the requirement that he demonstrate fitness to practice law, including proof of mental fitness, prior to reinstatement. The New York court suspended Alongi for one year, with reinstatement conditioned upon proof that he possesses the requisite mental capacity to resume the practice of law, for neglecting legal matters; violating the rules of a tribunal; providing improper financial assistance to a client; engaging in a conflict of interest by failing to disclose to an estate client with whom he was involved in a consensual sexual relationship of the potential effect of the relationship on the independent exercise of his professional judgment or to advise the client of her right to seek independent legal advice regarding a substantial testamentary gift to him; and engaging in conduct involving deceit and misrepresentation, conduct prejudicial to the administration of justice, and conduct that adversely reflected on his fitness to practice law.
In re Harnam S. Arneja. 1818 Pennsylvania Avenue NW, Washington, D.C. January 31, 2002. The court suspended Arneja for a year. In connection with personal injury matters, Arneja commingled entrusted funds with his own; failed to refund unearned fees promptly to his clients or to release the clients’ files and withdraw from representation after he was discharged; improperly asserted a retaining lien against clients’ files; and engaged in conduct involving dishonesty by representing himself as the clients’ counsel in pleadings after he had been discharged and by misrepresenting to successor counsel and Bar Counsel that he had surrendered the entire client file.
In re Matthew S. Bewig. 10227 North Ojus Drive, Tampa, Florida. February 14, 2002. The court disbarred Bewig based upon his conviction in the District of Columbia Superior Court of misdemeanor sexual contact, a crime that the Board on Professional Responsibility concluded involved moral turpitude, thus requiring his automatic disbarment pursuant to D.C. Code § 11-2503(a) (1995).
In re David O. Davenport. Davenport & Associates, 1625 K Street NW, Washington, D.C. March 28, 2002. The court suspended Davenport for six months for negligent misappropriation of entrusted funds and commingling entrusted funds with his own. Davenport placed personal as well as client funds in his trust account and, while using the trust account as an operating account, invaded funds that he was required to hold in trust to pay a client’s medical provider.
In re George Edelstein. 230 Riverside Drive, New York, New York. February 28, 2002. In a reciprocal matter from the United States District Court for the Southern District of New York, the court temporarily suspended Edelstein and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. The New York federal court disbarred him for making a series of loans to a client while representing him, accepting employment from a client while the client was indebted to him, and engaging in conduct prejudicial to the administration of justice.
In re Gerard E. Evans. 164 Conduit Street, Annapolis, Maryland. March 14, 2002. The court disbarred Evans based upon his conviction in the United States District Court for the District of Maryland of mail fraud, aiding and abetting mail fraud, wire fraud, and aiding and abetting wire fraud, crimes involving moral turpitude per se, thus requiring his automatic disbarment pursuant to D.C. Code § 11-2503(a) (1995). Evans fraudulently induced companies to retain him by leading them to believe that his codefendant, a state legislator, would otherwise introduce legislation that would have significant adverse economic consequences to the companies.
In re Jonathan J. Ezer. 1146 Fort Street Mall, Honolulu, Hawaii. January 31, 2002. In a reciprocal matter from Hawaii, the court disbarred Ezer. The Hawaii court permitted Ezer to resign in lieu of discipline, the functional equivalent of disbarment by consent in this jurisdiction.
In re James J. Gormley III. 2442 Dunkerrin Lane, Atlanta, Georgia. March 14, 2002. The court disbarred Gormley. Gormley facilitated investments in sham offshore trading programs that promised to generate extraordinary profits to investors. He was convicted in the United States District Court for the Southern District of West Virginia of aiding and abetting wire fraud, conspiracy to commit wire fraud, conspiracy to obstruct justice, and perjury, all of which are crimes involving moral turpitude and thus require his automatic disbarment pursuant to D.C. Code § 11-2503(a) (1995).
In re Anthony Graham Sr. 2202 T Place SE, Washington, D.C. March 28, 2002. The court publicly censured Graham for commingling client funds with his own and for failing to notify a third party promptly of his receipt of funds in which the party had an interest, to deliver funds the party was entitled to receive, or to maintain client funds in a properly designated trust or escrow account. Graham deposited or transferred funds received in connection with several clients’ settlements into his firm’s operating account. In one instance he also failed to notify a medical provider of his receipt of funds in which the provider had an interest by virtue of an assignment and authorization agreement or to deliver funds that the provider was entitled to receive.
In re Stephen L. Gregory. 3000 Connecticut Avenue NW, Washington, D.C. January 31, 2002. The court disbarred Gregory for misappropriating settlement funds that were required to be held in trust to pay a client’s medical providers, failing to notify the medical providers of his receipt of funds they were entitled to receive, and failing to supervise adequately a nonlawyer (to whom he had delegated responsibility for his financial matters) to ensure that her conduct was compatible with his professional obligations. Gregory’s nonlawyer assistant had written checks on Gregory’s trust account without his authority, yet he acknowledged that he did not review his bank statements or otherwise check the nonlawyer’s work, even after he learned of her actions. He invaded the funds owed to medical providers when he drew a check on the trust account, without checking the balance in the account, for an amount he believed to be owed to him from clients. Gregory did not pay the medical providers, even after he learned that they had not been paid.
In re Robert L. Koven. 110 North Washington Street, Rockville, Maryland. March 7, 2002. In a reciprocal matter from Maryland, the court suspended Koven for two years, nunc pro tunc to January 19, 2001, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Koven was hired by a client to file applications for alien labor certifications on behalf of the client’s employees; he failed to file the applications, advised his client and the employees that the applications had been filed, created false documents to reflect that the applications had been filed, failed to refund the unearned fee to the client, and failed to cooperate in the ensuing disciplinary investigation. The Maryland court suspended Koven indefinitely, with the right to apply for reinstatement after two years, for commission of a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer; engaging in conduct involving dishonesty and conduct prejudicial to the administration of justice; and failing to provide competent representation, to represent clients diligently, to communicate with clients, to protect clients’ interests upon termination, or to cooperate with the disciplinary authorities.
In re Richard Howard Laibstain. Ganey & Laibstain PC, PO Box 646, Ashland, Virginia. February 19, 2002. In a reciprocal matter from Virginia, where Laibstain’s license to practice law was revoked, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.
In re Thomas J. Mattingly. 4702 Rocky Spring Lane, Bowie, Maryland. January 31, 2002. The court suspended Mattingly for six months, with the requirement that he demonstrate fitness to practice law prior to reinstatement. In connection with three disciplinary matters, Mattingly failed to respond to Bar Counsel inquiries or to orders of the Board on Professional Responsibility compelling his response, thereby violating D.C. Bar Rule XI, § 2(b)(3), and engaging in conduct hat seriously interfered with the administration of justice.
In re James F. McCoole. 2039 Palmer Avenue, Larchmont, New York. February 21, 2002. The court disbarred McCoole based upon his conviction in the County Court of Westchester County, New York, of three counts of grand larceny in the second degree, a crime involving moral turpitude per se, thus requiring his disbarment pursuant to D.C. Code § 11-2503(a) (1995). McCoole stole more than $360,000 from two individuals and an estate and used the money for his personal expenses.
In re Kevin C. McDonough. 19 Commerce Street, Clinton, Connecticut. February 28, 2002. In a reciprocal matter from California, the court suspended McDonough for two years, nunc pro tunc to March 27, 2000, stayed execution of all but 60 days of the suspension, and placed him on unsupervised probation with conditions. In California, McDonough stipulated that he had failed to maintain trust account records, used his trust account for personal purposes, and drew numerous checks on the account for personal expenses at a time when there were insufficient funds to cover them. The California court suspended him for two years, with the requirement that he demonstrate fitness to practice law prior to reinstatement, but stayed execution of the sanction in favor of an actual suspension of 60 days and supervised probation for two years. McDonough was reinstated in California on January 18, 2000.
In re Richard C. Spitzer. 6000 Executive Boulevard, Rockville, Maryland. February 13, 2002. In a reciprocal matter from Maryland, where Spitzer was disbarred, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.
In re Joel Steinberg. Joel Steinberg & Associates, 21231 Eisenhower Avenue, Alexandria, Virginia. February 13, 2002. In a reciprocal matter from Virginia, the court temporarily suspended Steinberg and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Steinberg tendered his resignation from the Virginia bar to resolve pending disciplinary charges alleging misappropriation, neglect, and failure to communicate.
Informal Admonitions Issued by the Office of Bar Counsel
In re Godfrey L. Binaisa. 6 East 46th Street, New York, New York. September 14, 2001. Bar Counsel issued Binaisa an informal admonition for failure to provide competent representation, to represent a client diligently, or to communicate adequately with a client.
In re Van M. Brathwaite. 3831 Hamilton Street, Hyattsville, Maryland. August 21, 2001. Bar Counsel issued Brathwaite an informal admonition for failure to provide written notice of the basis or rate of the fee or to provide a written contingent fee agreement.
In re Douglas B. Evans Sr. 9224 Edwards Way, Adelphi, Maryland. December 3, 2001. Bar Counsel issued Evans an informal admonition for failure to provide competent representation, to serve a client with skill and care commensurate with that offered by other attorneys in similar matters, or to refund unearned fees or release the client file upon termination.
In re Willie F. Hearring Garrett. 31541/2 Berry Road NE, Washington, D.C. July 30, 2001. Bar Counsel issued Hearring Garrett an informal admonition for failure to provide competent representation, to represent a client diligently, or to act with reasonable promptness in representing a client.
In re James L. Kelley. 217 Spring Avenue, Takoma Park, Maryland. November 6, 2001. Bar Counsel issued Kelley an informal admonition for disobeying an obligation under the rules of a tribunal and engaging in conduct that seriously interfered with the administration of justice.
In re Sheldon H. Klein. Arent Fox Kintner Plotkin & Kahn, PLLC, 1150 Connecticut Avenue NW, Washington, D.C. July 3, 2001. Bar Counsel issued Klein an informal admonition for unauthorized communication with a represented party.
In re Patrick G. Merkle. 1750 K Street NW, Washington, D.C. July 13, 2001. Bar Counsel issued Merkle an informal admonition for engaging in a conflict of interest by advancing two or more adverse interests in the same matter.
In re Richard J. O’Connor. 13115 Musicmaker Drive, Silver Spring, Maryland. October 9, 2001. Bar Counsel issued O’Connor an informal admonition for failure to provide competent representation.
In re Saeed E. Osman. 1611 South Walter Reed Drive, Arlington, Virginia. September 14, 2001. Bar Counsel issued Osman an informal admonition for failure to provide competent representation, to represent a client diligently, or to act with reasonable promptness in representing a client.
In re Severina B. Rivera. 1322 18th Street NW, Washington, D.C. October
3, 2001. Bar Counsel issued Rivera an informal admonition for failure
to communicate adequately with a client or to explain a matter sufficiently
to allow the client to make informed decisions concerning the representation.
In re John H. Spaulding. 1403 Foxhall Road NW, Washington, D.C. December 27, 2001. Bar Counsel issued Spaulding an informal admonition for use of a firm name, letterhead, or other professional designation containing a false or misleading communication about the lawyer’s services or implying a connection with a public or charitable legal services organization.
In re Durward M. Taylor. 5911 3rd Street NE, Washington, D.C. October 3, 2001. Bar Counsel issued Taylor an informal admonition for failure to provide competent representation, to serve a client with skill and care commensurate with that offered by other attorneys in similar matters, or to represent a client diligently.
In re Alan S. Toppelberg. Alan S. Toppelberg & Associates, 1444 N Street NW, Washington, D.C. October 19, 2001. Bar Counsel issued Toppelberg an informal admonition for failure to provide competent representation, to serve a client with skill and care commensurate with that offered by other attorneys in similar matters, or to represent a client diligently; intentional failure to seek the client’s legal objectives; and failure to act with reasonable promptness in representing a client.
In re Lloyd F. Ukwu. Ukwu & Associates, 1017 12th Street NW, Washington, D.C. September 21, 2001. Bar Counsel issued Ukwu an informal admonition for failure to provide written notice of the basis or rate of the fee.
The Office of Bar Counsel compiled the foregoing summaries of disciplinary
and recommendations issued by the Board on Professional Responsibility,
as well as informal
admonitions issued by the Office of Bar Counsel, are posted on the
D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the
Atlantic Reporter and, for decisions issued since mid-1998,
are also available online. To obtain a copy of a recent slip opinion,
dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or firstname.lastname@example.org.