Bar Counsel: Happy Valentine's

From Washington Lawyer, February 2011
By Joe Perry

After countless columns telling you how to avoid trouble, and countless more regaling you with tales of those unfortunate few who fail to do so, we thought it time to let you know how much we appreciate you. You, the “silent majority” who avoids engaging in misconduct on a daily basis.

Our first inclination was to send out individual greetings to our 94,395 (as of November 2010) members, complete with stickers and candy hearts, but upon further consideration, we thought it inappropriate to spend your D.C. Bar dues on your own cards. So here, by way of this month’s column, we present our Valentine to you, completely devoid of ominous warnings and instructional finger-wagging.

Dear D.C. Bar Member:

So many things we love about you and only space to name a few…

We love how, at the end of the day, you choose to carefully file away that seemingly benign piece of correspondence from opposing counsel, even though you are perfectly aware of where you left it after reading it—just underneath the stack of bank records from that other case, which are underneath a set of transcripts from a third case, with the entire said pile having been moved from under your phone to underneath your desk so you could clean up that coffee spill.

We love how when your nightmare client calls regarding a draft pleading and asks,“Have you filed it yet?” you respond: “No, Nightmare Client, I have not filed it yet.” You do this even though you plan on filing it within a couple of hours, and even though you know saying “I filed it this morning” would save you yet another unwarranted (and undoubtedly vulgar) tongue-lashing.

We love the way you report that out-of-state misdemeanor conviction for driving on a suspended license, given that it is your obligation under D.C. Bar Rule XI, even though you were unaware your license had expired the previous day (Happy Belated Birthday!) and the cop who pulled you over on false pretenses was clearly only interested in trying to make some kind of quota.

We love the way you keep it to yourself that your personal injury client, who also happens to be a local politician, thinks “gerrymandering” is an old-fashioned dance move. You keep that gem to yourself because you know that it might be considered “embarrassing” under Rule 1.6, regardless of the fact it has nothing to do with your representation.

Finally, we love that if you ever received a letter from our office asking you to explain your actions, you would avoid taking it personally. We love how you would cooperate with us to the fullest extent possible. We love how you know that no matter how properly you conduct yourself in your daily law practice, there may always be a client who sees fault where there is none.

We love that although you may not love us, you realize that having to deal with a client’s bar complaint is simply one of the less-than-glamorous obligations that come with a license to practice law—much like having to deal with requests for free legal advice at every single cocktail party, parent–teacher conference, or family picnic that you choose to attend.

Yours truly,
The Office of Bar Counsel

P.S. Dispensing free legal advice at cocktail parties, parent–teacher conferences, or family picnics may create an attorney–client relationship. See, e.g., In re Lieber, 442 A.2d 153, 156 (D.C. 1982) (“a client’s perception of an attorney as his counsel is a consideration in determining whether a relationship exists”). Sorry, couldn’t resist.

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

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

In re Robert P. Kaufman. Bar No. 375715. November 12, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals publicly censure Kaufman. While retained to represent a client in a personal injury matter, Kaufman failed to provide competent representation, failed to represent client with diligence and zeal, intentionally failed to seek the lawful objectives of client, intentionally prejudiced or damaged the client, failed to keep client reasonably informed, and failed to surrender the client’s file after termination of representation. Rules 1.1(a), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.4(a), and 1.16(d).

In re Ralph T. Mabry Jr. Bar No. 955633. November 4, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Mabry, with reinstatement conditioned on Mabry’s reimbursing the Estate, its beneficiaries, and/or the Clients’ Security Fund the amounts he improperly withdrew from the Estate, with interest at the legal rate. While serving as personal representative in an estate matter, Mabry failed to provide competent representation to his client; failed to represent his client with diligence, zeal, and reasonable promptness; intentionally failed to seek the lawful objectives of his client and intentionally prejudiced or damaged his client; engaged in intentional misappropriation of funds from the Estate; failed to deliver funds and records that the client and/or third persons were entitled to receive; failed to protect his client’s interests after he was removed by the court as the personal representative; engaged in conduct involving dishonesty; 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), 1.3(b)(2), 1.3(c), 1.15(a), 1.15(b), 1.16(d), 8.4(c), and 8.4(d).
In re Keith J. Smith. Bar No. 415529. November 22, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar 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 Smith’s conduct in a civil action wherein he was a party (Count 4). In Count 1, the board found that Smith violated Rules 1.1(a) and 1.1(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, the board found that Smith failed to represent his two clients diligently or with reasonable promptness (Rules 1.3(a) and (c)) by not promptly contacting the insurance company upon receipt of the checks to ascertain the clients involved. It also held that Smith violated Rule 1.15(b) by not acting promptly to reimburse his clients once he was told by the insurance company that the funds received months prior were for another case. In addition, Smith failed to keep his clients reasonably informed as required (Rule 1.4(a)) and recklessly misappropriated entrusted funds in violation of Rule 1.15(a). In Count 3, the board found that Smith’s conduct violated Rules 1.1(a) (competent representation) and 1.3(a) (lack of diligent representation), but did not violate Rules 1.1(b) (skill and care); 8.4(c) (conduct involving dishonesty, fraud, deceit, and misrepresentation); and 8.4(d) (conduct that seriously interferes with the administration of justice). In Count 4, the board found that 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 interferes 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).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

In re Barry C. Stiller. Bar No. 41194. November 12, 2010. The D.C. Court of Appeals denied Bar Counsel’s petition for rehearing. The Court of Appeals cited In re Slattery, 767 A2d 203, 206 (D.C. 2001), “(holding Stiller in accord with principle that ‘[t]here is no requirement in either [subsection (b) or (c) of Rule 8.4] that an attorney actually have been convicted of a crime for the rule to apply).” The Court of Appeals further ordered that the petition for rehearing en banc is denied.

Reciprocal Matters

In re Peter A. Allen. Bar No. 369607. November 12, 2010. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Allen for one year and one day with fitness, nunc pro tunc October 14, 2010.

In re Andrea R. Bateman. Bar No. 360342. November 18, 2010. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Bateman for 10 days.

In re S. Michael Bender. Bar No. 93393. November 12, 2010. In a reciprocal matter from New Jersey, the
D.C. Court of Appeals imposed identical reciprocal discipline and suspended Bender for three years with fitness.

In re H. Beatty Chadwick. Bar No. 126466. November 4, 2010. In a reciprocal matter from the state of Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Chadwick for five years with fitness.

In re Jeffrey E. Detlefsen. Bar No. 395026. November 4, 2010. In a reciprocal matter from Oregon, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Detlefsen for five years with fitness.

In re Peter W. DiGiovanni. Bar No. 445335. November 12, 2010. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended DiGiovanni for one year and one day with fitness.

In re Robert L. Ehrlich. Bar No. 943985. November 4, 2010. In a reciprocal matter from California, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Ehrlich.

In re Kimla C. Johnson. Bar No. 419056. November 4, 2010. In a reciprocal matter from South Carolina, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Johnson for two years with fitness.

In re Jeffrey L. Krain. Bar No. 326884. November 4, 2010. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Krain for four years with fitness

In re John D. Lewis. Bar No. 429449. November 4, 2010. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Lewis.

In re Kevin C. McDonough. Bar No. 362940. November 4, 2010. In a reciprocal matter from the state of Connecticut, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended McDonough pursuant to a disability suspension under D.C. Bar Rule XI, § 13(e).
In re David E. Parker. Bar No. 279919. November 4, 2010. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Parker for five years with fitness.

In re Douglas C. Wilson. Bar No. 412722. November 4, 2010. In a reciprocal matter from Connecticut, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Wilson for nine months.

Criminal Convictions

In re Robert N. Vohra. Bar No. 426365. On August 25, 2010, the D.C. Court of Appeals convicted Vohra of criminal contempt for his willful failure to comply with two court orders compelling him to produce financial records for his trust account, as required by a subpoena from Bar Counsel. On November 23, 2010, the court sentenced Vohra to incarceration for 60 days, all but 10 days suspended; supervised probation for six months with conditions; 100 hours of community service; and payment of $250 to the victims’ crime fund for his criminal contempt of court.

Interim Suspensions Issued by the District of Columbia Court of Appeals

In re Daniel M. Keil. Bar No. 215467. November 15, 2010. Keil was suspended on an interim basis based upon discipline imposed in Florida.

In re Stephen D. Landfield. Bar No. 388146. November 15, 2010. Landfield was suspended on an interim basis based upon discipline imposed in New Jersey.

In re Carmen M. Vozzella. Bar No. 431950. November 10, 2010. Vozzella was suspended on an interim basis based upon discipline imposed in the state of Florida.

Disciplinary Actions Taken by Other Jurisdictions

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

In re Charles William Gittins. Bar No. 439710. On September 3, 2010, the Seventh District Subcommittee of the Virginia State Bar issued a public admonition with terms to Gittins.

In re Jan C. Smith. Bar No. 956375. On May 20, 2010, the Sixth District Subcommittee of the Virginia State Bar publicly reprimanded Smith.

Informal Admonitions Issued by the Office of Bar Counsel

In re Franklyn N. Burke. Bar No. 228189. November 11, 2010. The Office of Bar Counsel issued Burke an informal admonition for failing to serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters; intentionally failing to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules, and prejudicing or damaging a client during the course of the professional relationship; failing to act with reasonable promptness in representing a client; and filing a frivolous petition with the United States Citizenship and Immigration Services while representing a client in an immigration matter. Rules 1.1(b), 1.3(b)(1), 1.3(b)(2), 1.3(c), and 3.1.

In re Gregory B. English. Bar No. 398564. November 10, 2010. The Office of Bar Counsel issued English an informal admonition for violating the Rules on competence and promptness based upon his failure to periodically check the court’s docket sheet while he was retained to represent codefendants in a post-conviction action. Rules 1.1(a), 1.1(b), and 1.3(a).

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The Office of Disciplinary Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Disciplinary 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.