Bar Counsel: Piracy of Your Privacy: The Public Edition

From Washington Lawyer, July/August 2013
By Azadeh Matinpour

In the last “Bar Counsel” column, 20/20: The Future of the Rules of Professional Conduct, Gene Shipp left off with a cautionary example of a staff member inadvertently disclosing the identity of a client by posting a picture of that client online. But let’s be realistic about online privacy—it’s not just your clients’ secrets and confidential information you have to worry about, but also yours. Just Google your name and you’ll be amazed by the result. If you are willing to pay a small fee, try an online background check service to see what else you, and anyone else, can find about you.

What makes us experts? Bar Counsel’s investigative team has more than 50 combined years of experience as accountants, CPAs, forensic fraud examiners, and FBI agents. We investigate complaints of alleged ethical misconduct by members of the D.C. Bar using a variety of online public records databases and private investigative services. As an investigator and an attorney, I like to think that I’m a bit like Kalinda Sharma from the television series The Good Wife in that I’m persistent, tough, and unreadable, but I do not wear leather and knee–high boots and never use questionable and unethical methods to gather intelligence. I am also a little bit like Inspector Gadget, in the animated series, in that I’m clumsy, but I can always rely on trusty tools such as my cellphone and iPad to save the day.[1]

But, unlike you or that random person trying to steal your identity, Bar Counsel is looking for clues to solve a very particular puzzle: Is the complaint on our desk well–founded? The context in which the alleged misconduct occurred is important and relevant to determining whether an attorney acted in bad faith. So like other investigators (and litigators), we may begin our detective work by gathering information and monitoring the attorney’s professional and personal digital footprint using our favorite search engines. In addition, investigations often call for due diligence in the form of browsing the online court dockets in the District of Columbia, Maryland, or Virginia. Whether you like it or not, all three jurisdictions have placed their dockets online where we can look for information about all sorts of cases, from traffic tickets to civil lawsuits. We do not limit our research to just local courts, but we also monitor federal courts by using Public Access to Court Electronic Records (PACER), the gateway to case and docket information from the U.S. district courts, U.S. appellate courts, and U.S. bankruptcy courts.

You probably already knew these Web sites contain all of the information that is public and always has been public even before it was not so easily accessible online. What we find surprising is the amount of additional personal information that is online about D.C. attorneys, either because they purposely left it out there for everyone to see or they have no clue that their private lives are on display for the world to observe.

So let us give you a sampler:

• Have you ever searched for yourself on people search sites such as Intelius, PeekYou, PeopleFinder, Spokeo, or WhitePages? Brace yourself—your name, date of birth, names of family members, current and past addresses, and phone number are out there for everyone to see. Some of these sites make it easy for you to opt–out through their Web site. Others will demand that you register for the site or send them a copy of your ID and an opt–out request letter. Basically, you have to give up your personal information to have them remove it from their site.
• Have you ever been pulled over and issued a traffic ticket in Maryland? Then all your personal information is online. Now everyone knows your address, height, weight, year of birth, vehicle tag, and make and year of your car.
• Do you or your kids have a Facebook profile? Is your date of birth and your hometown on your profile? Say hello to Mr. or Mrs. Identity Thief. How about your e–mail? Spammers will love that. Read Facebook’s privacy policy and change your privacy settings. The same goes for any other social media provider.
• Do you like to post pictures of your family vacation to Cancun for the entire world? No wonder someone broke into your house while you were soaking up the sun. Remove the location information from your photos before posting them online. And don’t tweet your plans or disclose them on your Facebook status—that’s like another invitation.

So why are we revealing all our investigative secrets to you? Because we think, as members of the legal profession, we all need to be aware of our online presence and be careful about our choices.

Azadeh Matinpour is an investigative attorney with the Office of Bar Counsel.

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Note

[1]If you do not know of Kalinda Sharma and Inspector Gadget, Google them.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

IN RE J. SCOTT BROWN. Bar No. 958256. April 17, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Brown. Brown pleaded guilty and was convicted in the U.S. District Court for the Eastern District of Missouri on a single count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 371, a crime involving moral turpitude per se for which disbarment is mandatory under D.C. Code § 11–2503(a) (2001).

IN RE KARL W. CARTER JR. Bar No. 113449. April 25, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Carter by consent.

IN RE ELLIS S. FRISON JR. Bar No. 478092. May 24, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Frison and, as a condition of reinstatement, require Frison to prove that he has fully paid the $11,000 Attorney/Client Arbitration Board arbitration award rendered in favor of one client, plus interest at the legal rate on that amount beginning to accrue as of August 3, 2009. These matters involve Frison’s representation of clients in two separate matters.

While representing a client in an employment matter, Frison violated Rule 1.1(a) and Rule 1.1(b) (competent representation; skill and care); Rule 1.3(b)(1) (seeking the lawful objectives of his client); Rule 1.3(b)(2) (intentionally prejudicing or damaging his client during the course of the professional relationship); Rule 1.4(a) and Rule 1.4(b) (failing to keep his client reasonably informed about her matters and failing to explain them as reasonably necessary); Rule 1.6(a) and Rule 1.6(e)(5) (knowingly revealing confidences and/or secrets of his client, and failing to protect them while seeking legal fees from her); Rule 1.16(d) (on termination of his representation, failing to take timely steps to surrender the client’s papers and property to which the client was entitled, to withdraw from all matters in which he was listed as her counsel, and to refund unearned fees); Rule 3.1 (bringing and defending proceedings and/or litigating issues when there was no non–frivolous basis for doing so); Rule 3.2(a) (delaying proceedings solely to harass or maliciously injure his client); Rule 3.3(a)(1) (knowingly making false statements of fact to a tribunal and/or failing to correct such statements); Rule 3.3(a)(4) (knowingly offering false evidence); Rule 3.4(b) (falsifying evidence); Rule 3.4(c) (knowingly disobeying obligations under the rules of a tribunal); Rule 4.4(a) (while representing himself as a client, using means whose purpose was to embarrass, delay, or burden his former client); Rule 8.1(a) (knowingly making false statements of fact in connection with a disciplinary matter); Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4(d) (conduct that seriously interferes with the administration of justice).

In the second matter, while representing a client and her minor child in a personal injury matter, Frison violated Rule 3.1 (asserting issues when there was no non–frivolous basis for doing so); Rule 3.3(a)(1) (knowingly making false statements of fact to a tribunal and failing to correct such statements); Rule 3.4(b) (falsifying evidence); Rule 8.1(a) (knowingly making false statements of fact in connection with a disciplinary matter); Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4(d) (conduct that seriously interferes with the administration of justice).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE KARL W. CARTER JR. Bar No. 113449. May 30, 2013. The D.C. Court of Appeals disbarred Carter by consent.

IN RE MARK L. LEZELL. Bar No. 175000. April 25, 2013. The D.C. Court of Appeals disbarred Lezell by consent, effective forthwith.

Reciprocal Matters

IN RE DAVID E. FOX. Bar No. 165258. May 23, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed substantially different reciprocal discipline and suspended 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.

IN RE ROSS M. GADYE. Bar No. 417823. April 4, 2013. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Gadye, nunc pro tunc to January 11, 2013. In New York, Gadye had been found to have engaged in repeated dishonesty, including participation in a fraud upon a court.

IN RE REBECCA L. MARQUEZ. Bar No. 444762. April 4, 2013. In a reciprocal matter from Virginia, the D.C. Court of Appeals suspended Marquez pursuant to a disability suspension under D.C. Bar R. XI, § 13(e).

IN RE MARY S. MEADE. Bar No. 413992. April 4, 2013. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and disbarred Meade. In Virginia, Meade had been found to have made a false statement under oath, charged unreasonable fees, and failed to put unearned fees in a trust account.

IN RE MICHAEL S. SUCOLL. Bar No. 156703. April 4, 2013. In a reciprocal matter from Connecticut, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Sucoll for five years with fitness.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE GERALD F. CHAPMAN. Bar No. 432168. April 2, 2013. Chapman was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE DALE E. DUNCAN. Bar No. 370591. April 2, 2013. Duncan was suspended on an interim basis based upon discipline imposed in Virginia.

IN RE MICHAEL LAWRENCE EISNER. Bar No. 987138. April 3, 2013. Eisner was suspended on an interim basis based upon discipline imposed in Virginia.

IN RE SEAN PATRICK GJERDE. Bar No.479588. April 2, 2013. Gjerde was suspended on an interim basis based upon his conviction of a serious crime in the U.S. District Court for the Eastern District of California.

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 LOUIS FIREISON. Bar No. 103424. The Attorney Grievance Commission of Maryland reprimanded Fireison on February 17, 2012, for conduct related to failing to reconcile his trust account on a regular basis.

IN RE DONALD S. LITMAN. Bar No. 375789. On July 12, 2012, the Supreme Court of Pennsylvania publicly censured Litman for misconduct involving pursuing baseless claims, seeking unwarranted legal remedies, and misrepresenting both facts and law before tribunals.

IN RE ROBERT M. MCCARTHY. Bar No. 409943. On April 23, 2013, the Attorney Grievance Commission of Maryland reprimanded McCarthy for professional misconduct that violated Rules 1.1 and 1.3 of the Maryland Lawyers’ Rules of Professional Conduct.

IN RE ERNEST W. POWELL. Bar No. 458119. On December 7, 2012, the Circuit Court for the County of Chesterfield, Virginia, publicly reprimanded Powell for violating professional rules that govern truthfulness in statements to others and dealing with unrepresented persons.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE ARUN K. CHHABRA. Bar No. 148197. April 30, 2013. Bar Counsel issued Chhabra an informal admonition. While representing a client in an immigration matter, Chhabra failed to provide competent representation, to represent the client zealously and diligently within the bounds of the law, to act with reasonable promptness, to keep the client reasonably informed about the status of the matter and to promptly comply with reasonable requests for information, to explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation, and to communicate to the client, in writing, the basis or rate of the legal fee. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.4(b), and 1.5(b).

IN RE ALAN S. GREGORY. Bar No. 411664. May 1, 2013. Bar Counsel issued Gregory an informal admonition. While retained to represent a client in a personal injury matter, Gregory failed to abide by the client’s decisions concerning the objectives of the litigation, failed to represent the client zealously and diligently within the bounds of the law, failed to act with reasonable promptness in representing the client, and failed to provide the client with a writing setting forth the basis or rate of the fee, the scope of the representation, and the expenses for which the client would be responsible. Rules 1.2(a), 1.3(a), 1.3(c), and 1.5(b).

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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.