Bar Counsel: How to Right a Wrong Without Doing Harm

From Washington Lawyer, July/August 2012
By Joe Perry

You are representing Husband in the middle of contentious, marathon divorce proceedings. Every issue is a battle, but you believe your client is credible, and you are determined to obtain positive results.

One consistent sticking point has been a dispute over the family dog, Sparky. Wife continues to allege—frivolously, in your mind—that Husband does not care about the dog. She even accuses him of letting Sparky loose one night in the hopes that he would run away. You are sure this is hogwash; based on Husband’s representations to you, you have filed a pleading blaming Sparky’s one-time escape on mischievous neighborhood kids.  

The night before a scheduled hearing, Husband, a little bit drunk, calls to vent about his case. In the midst of showering you with tales of how rough he had it with Wife, he lets slip that he intentionally left the gate open and watched out the front window with glee as Sparky made a break for it.

“I hate that dog,” he adds before hanging up. “I just don’t want her to have it.”

You now know your prior statement to the court was false. Rule 3.3(a)(1) states

• A lawyer shall not knowingly … make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, unless correction would require disclosure of information that is prohibited by Rule 1.6 [Confidentiality of Information];

The hearing is at 9 a.m. Setting aside how you could have been so wrong in judging Husband’s character, the question now is, How to proceed. The answer may depend, in part, on whether the courtroom is in the District of Columbia.

D.C. Rule 3.3(a)(1) departs from American Bar Association Model Rule 3.3 (and the rules of many other jurisdictions), in that the D.C. rule does not require an attorney to correct a false statement when such correction “would require disclosure of information that is prohibited by Rule 1.6.” D.C. Rule 1.6 encompasses not only information protected by attorney–client privilege, but also “secrets,” which include information the client has requested to be held inviolate, would be embarrassing to the client, or “would be likely to be detrimental … to the client.”

In many cases, a lawyer acknowledging that a previous assertion to the court was false will be “detrimental” to the client, especially where the statement in question was clearly based on representations made by the client. In the above hypothetical, Husband would be revealed as a liar, in a matter where his credibility is pitted against that of his wife. Rule 3.3(a)(1) would appear to counsel against disclosure, but Rule 3.3(a)(2)—and Rule 1.2(e)—would appear to counsel against any further representation.[1]

Obviously, our attorney’s first course of action should be to try and convince Husband to come clean with the court. But what if Husband snorts and refuses in a way that makes our attorney wonder if it was actually Wife who had it bad? Moving to withdraw might be a consideration, but given the stage of the proceedings, it’s questionable whether withdrawal would be allowed by the court.[2]

This juggling act is the product of the unique composition of the D.C. rules, and it demonstrates why our readers must constantly reflect on not just what it means to be an attorney, but what it means to be a District of Columbia attorney. In this particular instance, when faced with competing ethical responsibilities, the rules suggest a D.C. attorney’s obligation to be a zealous advocate takes precedence over his or her duties as an officer of the court.[3] Other jurisdictions, which do not explicitly bar correcting the record when it would run afoul of confidentiality requirements, arguably believe the balance tips the other way.[4]

There will always be clients who find a way to jam you up, and there may also be instances where what feels like the “right” thing to do on a gut level will be the wrong thing to do under the rules. On a practical level, this is an argument for why attorneys must stay abreast of their obligations through periodic review of the Rules of Professional Conduct.

Regarding the unfortunate situation of having made a statement that you later learn is false, you should first consider in what jurisdiction that statement was made.[5] Regardless of what rules apply, in a situation this difficult, the wise course of action would be to seek outside legal ethics advice.

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

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Notes

[1] Rules 3.3(a)(2) and 1.2(e) prohibit assisting a client to “engage in conduct that the lawyer knows is criminal or fraudulent[.]”

[2] See Rule 1.16(c). “When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

[3] D.C. attorneys should be mindful that there are circumstances where openly retracting a false statement, even if such retraction was detrimental to the client, would be the required course of action. For example, if the client is “using [the] lawyer’s services to further a crime of fraud” and that use of the lawyer’s services “is reasonably certain to result in substantial injury to the financial interests or property of another,” Rule 1.6(d) permits—and Rule 3.3(d) requires—disclosure of information, even if it may be detrimental to the client. Our lawyer might face this requirement if he or she came to learn that Husband was concealing significant assets to which Wife likely would be entitled. Here we assume Sparky is just an average mutt—incapable of causing substantial injury to the financial interests of others.

[4] Prudent attorneys will carefully review the appropriate ethics rules wherever they are appearing, however, given the likelihood that those rules contain provisions requiring any potential damage to a client’s interest be minimized.

[5] See Rule 8.5(b)(1). “For conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise[.]”

Disciplinary Actions Taken by the Board on Professional Responsibility

Hearing Committees on Negotiated Discipline

IN RE ALBERT R. ZARATE. Bar No. 444609. May 14, 2012. The Board on Professional Responsibility’s Ad Hoc Hearing Committee recommends that the D.C. Court of Appeals accept Zarate’s petition for negotiated discipline and suspend him from the practice of law for three months. Zarate entered a guilty plea to petit larceny—a misdemeanor—in state court in Virginia.

Original Matters

IN RE JESSE H. INGRAM. Bar No. 387629. May 22, 2012. The Board on Professional Responsibility recommends that the D.C. Court of Appeals accept Ingram’s consent to disbarment.

IN RE SANDY V. LEE. Bar No. 361460. May 11, 2012. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Lee. Lee failed to promptly remit to a third party proceeds of a check to which that third party was entitled, and he engaged in intentional misappropriation when he failed to hold separate the portion of the proceeds that was subject to the competing claims of Lee and the third party. Rule 1.15(c).

IN RE CHARLES R. POOLE. Bar No. 462122. May 2, 2012. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Poole by consent.

Reciprocal Matters

IN RE DAVID E. FOX. Bar No. 165258. May 8, 2012. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose substantially different reciprocal discipline and suspend Fox for two years, with the second year stayed on condition that Fox agrees to be placed on monitored probation for 18 months, with terms and conditions. Should Fox violate the terms of his probation, the remaining one-year suspension would be imposed and reinstatement to the Bar would be conditioned on his demonstrating his fitness to practice law. The Court of Appeals of Maryland disbarred Fox for neglect and abandoning clients in two matters, for misrepresenting the status of a case to one of those clients, and for failure to cooperate with the Maryland Bar Counsel.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE VIRGINIA R. FLING. Bar No. 375547. May 31, 2012. The D.C. Court of Appeals accepted Fling’s petition for negotiated discipline for two consolidated matters and imposed the following sanctions: (1) 120-day suspension with 90 days served and 30 days stayed; (2) 12 hours of CLE courses on immigration law to be approved by Bar Counsel; (3) restitution to three clients; (4) one-year unsupervised probation; and (5) no fitness requirement, provided that Fling successfully completes probation. If Fling fails to meet all of the conditions set forth within a year of her reinstatement, she agrees the court should suspend her for the remaining 30 days of the original suspension and impose fitness.

In one matter, Fling mishandled her representation of a client when she incorrectly assured him that he could leave the country without prejudicing his pending permanent residency application. As a result, the client lost his eligibility for permanent residency and was faced with a 10-year bar against reentering the country. When the client retained new counsel, Fling failed to promptly forward his files to the new attorney.

In a second matter, Fling mishandled her representation of a client and his employee when she incorrectly filed the employee’s application for a work visa extension, which was denied as a result. Fling subsequently misinformed the client and his employee regarding the extension, causing the employee to be present in the country without authorization. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), and 1.4(b).

IN RE RICHARD D. LIEBERMAN. Bar No. 419303. May 24, 2012. The D.C. Court of Appeals disbarred Lieberman by consent.

IN RE CHARLES R. POOLE. Bar No. 462122. May 31, 2012. The D.C. Court of Appeals disbarred Poole by consent.

IN RE ANGEL SAAD. Bar No. 474538. April 19, 2012. The D.C. Court of Appeals disbarred Saad, who pled guilty in the Supreme Court of the State of New York for New York County to felony grand larceny, a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

IN RE JOHN J. ZODROW. Bar No. 444703. May 17, 2012. The D.C. Court of Appeals disbarred Zodrow, effective immediately. In 2010, in the U.S. District Court for the District of Colorado, Zodrow pled guilty to felony bankruptcy fraud, in violation of 18 U.S.C. § 152(2), a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE BRIGITTE L. ADAMS. Bar No. 426034. May 30, 2012. Adams was suspended on an interim basis based upon her failure to respond to a Board order.

IN RE ANTHONY J. DELAURENTIS. Bar No. 111278. April 10, 2012. DeLaurentis 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 TINYA L. BANKS. Bar No. 439992. On April 20, 2012, the Second District Subcommittee of the Virginia State Bar publicly reprimanded Banks. Banks was found to have violated ethical rules relating to diligence and communication while representing a client in a criminal appellate matter.

IN RE CATHERINE S. WILLMORE. Bar No. 414111. On March 21, 2012, the Disciplinary Board of the Washington State Bar Association admonished Willmore. Willmore failed to use reasonable diligence while representing a client in an immigration matter.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE CHRISTOPHER E. BROWN. Bar No. 458897. May 14, 2012. Bar Counsel issued Brown an informal admonition for failing to provide competent representation, to serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters, to represent a client zealously and diligently within the bounds of the law, to act with reasonable promptness in representing a client, and to communicate the basis or rate of the legal fee in writing, before or within a reasonable time after commencing the representation, while representing a client in an employment matter. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), and 1.5(b).

IN RE BRIAN K. MCDANIEL. Bar No. 452807. May 14, 2012. Bar Counsel issued McDaniel an informal admonition. While retained to represent a client in civil litigation against a police department in North Carolina, McDaniel failed to adequately communicate with the client and to notify him that the matter had been dismissed on summary judgment by the court, and he failed to preserve the client’s rights by noting an appeal. North Carolina Rules of Professional Conduct 1.1, 1.4(a)(2), 1.4(a)(3), and 1.4(b) made applicable through D.C. Rule 8.5(b)(1).

IN RE CRAIG L. RICARD. Bar No. 985777. May 14, 2012. Bar Counsel issued Ricard an informal admonition. While retained to represent a client in civil litigation against a police department in North Carolina, Ricard failed to adequately communicate with the client and to notify him that the matter had been dismissed on summary judgment by the court, and he failed to preserve the client’s rights by noting an appeal. North Carolina Rules of Professional Conduct 1.1, 1.4(a)(2), 1.4(a)(3), and 1.4(b) made applicable through D.C. Rule 8.5(b)(1).

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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.