Anda di halaman 1dari 13

A Is for Affidavit, N Is for Nunc Pro Tunc, and R Is for Reinstatement

By Joyce E. Peters

Respondent s attention is drawn to the provisions of D.C. Bar R. XI, § 14 and § 16(g). 1
We direct respondent s attention to the requirements of D.C. Bar R. XI, § 14 (g), and
their effect on her eligibility for reinstatement. See D.C. Bar R. XI, § 16(c). 2
For the purpose of seeking reinstatement to the Bar, respondent s suspension shall
not begin until he complies with the affidavit requirements of D.C. Bar Rule XI,
§ 14(g); see also Rule XI, § 16(c). 3
Many reported disciplinary decisions of the District of Columbia Court of Appeal
s end with these words. Some decisions also grant lawyers nunc pro tunc treatmen
t for their disciplinary suspensions. So what is nunc pro tunc treatment, and wh
y do some cases have it but others do not?
Nunc pro tunc, which in Latin essentially means then for now, is a type of retroac
tive date determination used by the court in cases involving suspensions or disb
arment. In disciplinary cases the court s grant of nunc pro tunc treatment is an e
xception to the general rule that discipline is imposed prospectively. When disc
ipline is imposed nunc pro tunc, the effective date of the discipline is determi
ned to be sometime in the past and the suspension or disbarment period is comput
ed from that date forward. Nunc pro tunc treatment occurs most often in reciproc
al matters, under D.C. Bar Rule XI, § 11, where it is favored, but is also used in
other disciplinary cases in which the lawyer has been temporarily suspended.
Nunc pro tunc treatment is an important benefit to a lawyer facing a suspension
or disbarment. By starting the suspension or disbarment period in the past, as o
pposed to when the final order of discipline is entered, the lawyer essentially
gets a credit toward the period of the suspension or disbarment for any period o
f temporary suspension. It is rather like time served in the criminal context. Ess
entially, nunc pro tunc treatment hastens the passage of the suspension or disba
rment period and makes the lawyer eligible more quickly for reinstatement.4
Determining which lawyers are eligible for nunc pro tunc treatment involves an e
valuation of the lawyer s conduct: whether the lawyer promptly reported the foreig
n discipline or a criminal conviction to Bar Counsel, whether the lawyer ceased
practicing in the District of Columbia, and above all, whether the lawyer compli
ed with the court s affidavit rule. In one sense, it is a question of affidavits aff
idavits that the court requires of suspended and disbarred lawyers to ensure tha
t the court, the public, and the bar are protected and put on notice when a susp
ensory sanction is imposed. The date that the required affidavit or affidavits a
re properly filed often determines when a suspensory sanction begins for purpose
s of when the lawyer becomes eligible for reinstatement.
Failing to file the affidavit required by the court rule means that the period o
f suspension or disbarment does not begin to run for purposes of reinstatement e
ligibility.5 Consequently, a 30-day suspension could continue indefinitely if th
e lawyer fails to satisfy the affidavit requirement. This is one of the technica
l aspects of disciplinary law that every member of the D.C. Bar should understan
d, particularly lawyers facing serious discipline and their counsel.
The basic questions about affidavits and disciplinary suspensions are:
1. When does a lawyer s disciplinary suspension begin, and when does the suspensio
n period begin for purposes of reinstatement eligibility (these can be two diffe
rent dates!)?
2. What are the affidavit requirements and how do they affect eligibility for re
instatement?
3. What is a Goldberg6 affidavit, and when does a lawyer qualify for nunc pro tu
nc treatment in determining the starting date of the suspension and the eligibil
ity date for reinstatement?
In general, court-ordered disciplinary suspensions are prospective. Section 14(f
) of D.C. Bar Rule XI provides: Except as provided in sections 10, 11 and 13 of t
his rule, an order of disbarment or suspension shall be effective thirty days af
ter entry unless the Court directs otherwise. This means that a D.C. lawyer invol
ved in a disciplinary proceeding here normally may continue his or her existing
practice for 30 days after a suspension order is entered. The court sometimes di
rects otherwise (including immediate imposition of the sanction), but this is th
e general rule. The lawyer may not accept new legal work after the suspension or
der is entered, but the 30-day delay in the effective date of the suspension is
intended to give the lawyer time to complete pending matters to avoid prejudicin
g a client and to aid the lawyer in shutting down his or her practice in an orde
rly manner.7 Once the suspension order is effective, the lawyer may not legally
practice law8 and is subject to prosecution for criminal contempt if he or she c
ontinues to do so.9
Included in the suspension order is language like that quoted at the beginning o
f this article referring to the affidavit and other requirements in D.C. Bar Rul
e XI, §§ 14 and 16.10 Rule XI, § 14(a) (c), requires attorneys ordered disbarred or susp
ended to give prompt notice of the order of disbarment or suspension to (1) all
clients in nonlitigated matters, (2) all clients in litigated matters or adminis
trative proceedings in a D.C. court or agency, and (3) all adverse parties in li
tigated matters or administrative proceedings in a D.C. court or agency. In nonl
itigated matters the lawyer must also advise that he or she will be unable to ac
t as an attorney after the effective date of the order and that clients should s
eek legal advice elsewhere. In litigated matters the lawyer must advise of subst
itute counsel or, as a last resort, simply move to withdraw. When notifying adve
rse parties of the lawyer s inability to serve, the lawyer must also include infor
mation about the mailing addresses of clients who are parties in proceedings to
facilitate contact by adverse parties.
In addition to the notice requirements, section 14(d) requires the lawyer to del
iver promptly all papers and property to clients and to alert those clients of a
ny urgency in their obtaining the papers or property. These requirements obvious
ly are intended to prevent injury to any of the clients of the lawyer soon to be
suspended or disbarred.
The affidavit requirement in section 14(g) serves to verify to the court that th
e lawyer has completed all of the court-imposed requirements of notification and
transfer of responsibility for current clients. Section 14(g) provides:
Within ten days after the effective date of an order of disbarment or suspen
sion, the disbarred or suspended attorney shall file with the Court and the Boar
d an affidavit:
(1) Demonstrating with particularity, and with supporting proof, that the at
torney has fully complied with the provisions of the order and with this rule;
(2) Listing all other state and federal jurisdictions and administrative age
ncies to which the attorney is admitted to practice; and
(3) Certifying that a copy of the affidavit has been served on Bar Counsel.
The affidavit shall also state the residence or other address of the attorne
y to which communications may thereafter be directed. The Board may require such
additional proof as it deems necessary. In addition, for five years following t
he effective date of a disbarment or suspension order, a disbarred or suspended
attorney shall continue to file a registration statement in accordance with Rule
II, stating the residence or other address to which communications may thereaft
er be directed, so that the attorney may be located if a complaint is made about
any conduct of the attorney occurring before the disbarment or suspension. See
also section 16(c).
Rule 9.10 of the Board on Professional Responsibility s rules discusses this
affidavit requirement and details exactly what the affidavit should contain to m
eet the court s requirements.11 Board Rule 9.10(b) permits Bar Counsel to file a n
otice of noncompliance when either the lawyer has failed to file an affidavit or
the affidavit is insufficient. The affidavit, however, is a court-imposed requi
rement, and the court has stated that Bar Counsel s failure to file such a notice
does not affect the lawyer s responsibility to file a sufficient affidavit.12 Bar
Counsel does, however, routinely correspond with lawyers subject to suspension o
r disbarment orders to remind them of their duty to comply with the court s sectio
n 14(g) requirement.
In general, the court has required full compliance with this affidavit requireme
nt, although it has recognized that compliance with the requirements of section 1
4(f) [now section 14(g)] that is less than technically perfect can
suffice. . . . 13 For example, in In re Friedman14 the court accepted an affidavit
that was properly filed with the court but not the board. And in In re Breiner1
5 the court accepted an affidavit that was properly filed with the board but not
the court. In other cases the court has permitted attorneys to correct small de
ficiencies in their original affidavits by filing supplemental affidavits, thus
enabling these attorneys to reap the benefit of nunc pro tunc treatment back to
the filing of their original affidavits.16 In contrast with these errors, howeve
r, the failure to file the affidavit within the required 10-day period will affe
ct when the discipline is effective for reinstatement purposes. For an affidavit
filed after the required 10-day period, the discipline is effective when the af
fidavit is filed, not earlier.17
Most often the issue of a suspension s effective date arises when the case involve
s one of the three enumerated exceptions identified in section 14(f), that is, c
ases arising under section 10, 11, or 13. Section 10, which describes disciplina
ry proceedings based upon conviction of a crime, requires an immediate temporary
suspension in a case involving a felony or other serious crime.18 Section 11, r
eciprocal discipline, also requires an immediate temporary suspension when the l
awyer has been suspended or disbarred by another disciplining court. Section 13
concerns attorneys found to be mentally incompetent or incapacitated and directs
that suspensions ordered by the court in such cases are effective immediately. 19
Few cases have arisen under section 13, but many cases arise under sections 10 a
nd 11.
When final discipline involving a suspension or disbarment is imposed under eith
er section 10 or section 11, the question is when the sanction should be effecti
ve. If the case has not involved a temporary suspension (for example, the convic
tion involves a misdemeanor or nonserious crime, or the discipline imposed in th
e foreign jurisdiction does not involve a suspension), the court will decide whe
n the effective date will be either immediately or at some specified date included
in the order.
But what if there has been a temporary suspension? There are several possible po
ints in time at which the suspension could be considered effective: the date the
final suspension or disbarment order is issued; some earlier date when either t
he temporary suspension was ordered or the required section 14(g) affidavit was
filed; the date a delinquent section 14(g) affidavit was or is filed; or in a re
ciprocal case, the date that the discipline was imposed in the foreign jurisdict
ion. What is the appropriate starting date? Should the lawyer be afforded nunc p
ro tunc treatment?
In criminal conviction cases under section 10, when a temporary suspension has b
een ordered, the lawyer may get credit for the entire period of the temporary su
spension if he or she files a timely and sufficient section 14(g) affidavit with
in 10 days of the court s order.20 If the lawyer files the affidavit late, he or s
he may still get credit for the period of the temporary suspension subsequent to
the filing of the affidavit.21 If the lawyer totally fails to file the required
section 14(g) affidavit, the suspension will begin to run for reinstatement pur
poses only after a sufficient section 14(g) affidavit is filed.22
Reciprocal matters are handled slightly differently. When Bar Counsel files the
certified copy of a foreign disciplinary order involving a suspension or disbarm
ent, as required under D.C. Bar Rule XI, § 11(b), the court will enter an immediat
e order temporarily suspending the lawyer under section 11(d). That order will d
irect the lawyer to comply with the requirements in D.C. Bar Rule XI, § 14, thus m
andating the filing of an affidavit under section 14(g). When the executive atto
rney for the Board on Professional Responsibility receives a copy of the court s o
rder, she notifies the respondent lawyer in writing of the need to file not only
the section 14(g) affidavit in response to the court s order, but also a Goldberg
affidavit. The Goldberg affidavit is in addition to the section 14(g) affidavit
, and should be filed within 10 days of the board s letter.
In In re Goldberg the issue was whether the reciprocal sanction imposed in the D
istrict of Columbia could be made retroactive so that it would run concurrently
with the suspension imposed in Maryland. The court noted the language in what no
w is section 14(f) concerning prospective imposition of discipline, but conclude
d that an exception to the prospective imposition rule was appropriate because o
f the presumption favoring identical discipline in reciprocal matters. Regarding
reciprocal matters, the court stated, [W]e anticipate that concurrency will be t
he norm. The court then discussed when a concurrent reciprocal sanction would be
appropriate, stating:
Whether a particular suspension should be concurrent will depend to a consid
erable extent on the actions of the attorney involved. If the attorney promptly no
tifies Bar Counsel of any professional disciplinary action in another jurisdicti
on, as he or she is required to do . . . , and if the attorney voluntarily refra
ins from practicing law in the District of Columbia during the period of suspens
ion in the original jurisdiction, then there will probably be no reason to aggra
vate the discipline by making the District of Columbia suspension wholly or part
ially consecutive to that imposed elsewhere. On the other hand, if the attorney
unreasonably delays in notifying Bar Counsel that he or she has been disciplined
in another state, or if the attorney engages in the practice of law in the Dist
rict of Columbia while suspended elsewhere, then a more severe sanction may be j
ustified.23
Board Rule 8.5(b) further clarifies the criteria for nunc pro tunc treatmen
t of a reciprocal sanction. If a respondent lawyer notifies Bar Counsel of the f
oreign discipline and establishes to the satisfaction of the board that he or sh
e has voluntarily ceased practice in the District of Columbia, the board will fav
orably consider recommending to the Court that the effective date of any suspens
ion or disbarment be imposed nunc pro tunc to the date respondent voluntarily ce
ased the practice of law in the District of Columbia. Board Rule 8.5 makes clear
that the lawyer must also comply with the requirements in D.C. Bar Rule XI, § 14,
as a prerequisite for nunc pro tunc consideration by the board.
Thus, there are four steps that the lawyer facing a reciprocal suspension or dis
barment should do to obtain nunc pro tunc treatment of the sanction: (1) promptl
y notify Bar Counsel of the foreign discipline, (2) voluntarily cease practice i
n the District of Columbia, (3) file the Goldberg affidavit with the board attes
ting to the first two steps, and (4) file the required section 14(g) affidavit w
ith the court and the board, with service on Bar Counsel. Failure to complete an
y of these steps may preclude nunc pro tunc treatment.
As previously discussed, total failure to file the required section 14(g) affida
vit with the court and the board, with service on Bar Counsel, is an absolute ba
r to nunc pro tunc treatment. This is the worst possible case, as the reciprocal
discipline will only become effective for reinstatement purposes when that affi
davit is ultimately filed.24 Failure to notify Bar Counsel promptly of the disci
pline will also preclude imposition of concurrent suspensory sanctions.25 In suc
h a case, the suspension would run either from the date of the temporary suspens
ion, if a timely section 14(g) affidavit is filed, or from the date of the filin
g of the delinquent section 14(g) affidavit. Failure to cease practice negates t
he need for identical concurrent reciprocal discipline, as the lawyer has had th
e benefit of practicing here during the period of suspension in the other jurisd
iction, and the reason for the presumption favoring identical discipline no long
er exists. Moreover, granting the lawyer credit toward a suspension when he or s
he has not actually been suspended makes no sense. Thus, nunc pro tunc treatment
may or may not be granted, or the court may impose the sanction prospectively b
ut give credit if there was any period of suspension.26 Finally, failure to file
a timely Goldberg affidavit with the board may also bar nunc pro tunc treatment
, as the board needs some means to determine that the lawyer has ceased practice
in the District of Columbia.
What is clear from this discussion is that tardy or incomplete compliance with t
he affidavit requirements of D.C. Bar Rule XI, § 14(g), the failure to report fore
ign discipline or a criminal conviction to Bar Counsel, and the failure to under
stand the rationale behind the Goldberg affidavit can have significant adverse c
onsequences to a lawyer facing suspension or disbarment. Understanding these tec
hnical nuances of discipline, how the affidavits affect nunc pro tunc treatment
and ultimately reinstatement, is important not only to any D.C. lawyer facing su
spension or disbarment for ethical misconduct, but also to any lawyer serving as
respondent s counsel in disciplinary proceedings.
Notes
In re Charles E. McClain, Sr., No. 03-BG-285 (D.C. Aug. 5, 2004) (per curiam
).
In re Theodora A. Charles, No. 03-BG-800 (D.C. Aug. 5, 2004) (per curiam).
In re Marsden S. Coates, No. 03-BG-1084 (D.C. Aug. 5, 2004) (per curiam).
Recently, in In re Julia A. Soinenen, No. 03-BG-771 (D.C. July 15, 2004), th
e court analyzed whether an attorney s voluntary and unsupervised self-suspension wh
ile disciplinary proceedings were pending against her would make her eligible to
apply for reinstatement earlier than would otherwise be appropriate. The court
concluded, after a lengthy analysis of the facts and the rationale behind afford
ing nunc pro tunc treatment in reciprocal cases, that she would not get credit f
or her self-suspension. The court imposed discipline prospectively.
In In re Gardner, 650 A.2d 693, 697 98 (D.C. 1994), the court stated, If a lawy
er fails to file the section 14 affidavit, he is generally not eligible for rein
statement until a period of time equal to the period of suspension has elapsed f
ollowing his compliance with section 14. Similarly, in In re Slosberg, 650 A.2d 1
329, 1332 (D.C. 1994), the court stated, This court has made it clear that . . .
this court will enforce the requirement of D.C. Bar R. XI, § 16(c) that a suspende
d attorney shall not be eligible for reinstatement until a period of time equal
to the period of suspension shall have elapsed following the attorney s compliance
with § 14. (Citations omitted.)
In re Goldberg, 460 A.2d 982 (D.C. 1983).
Section 14(f) provides that the lawyer may not accept new retainers or engag
ements after entry of the order, but during the period between the date of entry
of the order and its effective date, the attorney may conclude other work on beh
alf of a client on any matters which were pending on the date of entry.
D.C. App. Rule 49(a) provides: No person shall engage in the practice of law
in the District of Columbia or in any manner hold out as authorized or competent
to practice law in the District of Columbia unless enrolled as an active member
of the District of Columbia Bar. . . . (Emphasis added.)
D.C. App. Rule 49(e)(2) provides that violations of Rule 49, that is, engagi
ng in the unauthorized practice of law, shall be punishable by the Court of Appea
ls as contempt and/or subject to injunctive relief. The court has convicted sever
al lawyers of criminal contempt for practicing law despite a court order disbarr
ing or suspending them. In re Ryan, 823 A.2d 509 (D.C. 2003) (lawyer suspended f
or four months with a fitness requirement for numerous disciplinary violations a
rising from her immigration practice, then convicted of criminal contempt for pr
acticing while suspended, and sentenced to a period of confinement for her conte
mpt conviction); In re Burton, 614 A.2d 46 (D.C. 1992).
D.C. Bar Rule XI, § 16, deals with reinstatement and the reinstatement process
for lawyers who have been disbarred, suspended for a disability, or suspended w
ith a fitness requirement.
Board Rule 9.10(a) provides that the affidavit
shall include, to Bar Counsel s reasonable satisfaction, the following: (a
) all steps taken by the attorney to comply with the disbarment or suspension or
der; (b) all other steps taken to comply with Section 14 of Rule XI, including w
ithout limitation (i) photocopies of all notices (including return receipts), mo
tions to withdraw, and letters of transmittal (or offers to return) involving pa
pers or other property to which clients of the attorney are entitled; (ii) the a
ttorney s current residence or other address where communications may be directed
to him; (iii) the attorney s understanding of the continuing obligation during dis
barment or suspension for a period of up to five years to file both annual and s
upplemental registration statements in accordance with D.C. Bar R. II, § 2 (with c
opies thereof served on Bar Counsel) listing such attorney s residence or other ad
dress where communications may be directed to him; (iv) the attorney s understandi
ng of the continuing obligation to keep and maintain records (including copies o
f all pertinent documents) showing the steps taken by such attorney to comply wi
th Section 14 of Rule XI; and (v) the attorney s understanding that if the affidav
it required by this Board Rule is rejected by Bar Counsel in a Notice of Non-Com
pliance . . . , the period of disbarment or suspension may be extended by the Co
urt.
In re Bowser, 771 A.2d 1002 (D.C. 2001) (per curiam). In this per curiam opi
nion, the court attached
relevant portions of the board s report because it demonstrates cogently the im
portance of the affidavit requirement and why respondent s successive failures to
comply with it cannot be minimized. Id. at 1003. The board report shows what can
go wrong when a lawyer attempts unsuccessfully to comply with the affidavit requ
irement.
In re Slosberg, 650 A.2d 1329, 1333 (D.C. 1994). Noting that it had permitte
d retroactive treatment with less than technically perfect compliance with the a
ffidavit requirements, the court concluded that Slosberg s error was not just tech
nical, as he had failed to comply fully, by omitting information concerning clie
nts and other jurisdictions where he was admitted. The court denied nunc pro tun
c treatment and delayed the start of his three-month suspension for a year pendi
ng his full compliance with section 14(g).
843 A.2d 737, 738 n.2 (D.C. 2004) (per curiam).
742 A.2d 886, 887 n.2 (D.C. 1999) (per curiam).
In In re James, 748 A.2d 923 (D.C. 2000) (per curiam), the court permitted t
he lawyer (who was consenting to disbarment) to file a supplemental affidavit de
monstrating compliance with the notification requirements and listing the other
jurisdictions where he was licensed so that he could benefit from nunc pro tunc
treatment based on the date of his original affidavit in computing his eligibili
ty for reinstatement. Supplemental affidavits were also permitted in In re O Malle
y, 683 A.2d 464 (D.C. 1996) (per curiam) (attorney disbarred under D.C. Code § 11-
2503(a) for criminal conviction involving moral turpitude permitted to file supp
lemental affidavit so that the effective date of his disbarment would begin base
d on the filing of his original affidavit); In re Canatella, Bar Docket No. 365-
99 (Board on Prof l Responsibility Sept. 22, 2000), 769 A.2d 142 (D.C. 2001) (per
curiam) (court adopts board recommendation for nunc pro tunc treatment to date o
f original affidavit, as supplemental affidavit clarified that attorney had no D
.C. matters when suspended in California); and In re Kaiser, Bar Docket No. 166-
96 at 2 3 (Board on Prof l Responsibility July 22, 1990), board recommendation adopt
ed, 681 A.2d 1166 (D.C. 1996) (per curiam) (attorney consenting to disbarment pe
rmitted to cure deficiency of unnotarized, otherwise complete, affidavit by subm
ission of a supplemental notarized version).
In re Glass, 805 A.2d 236 (D.C. 2002); In re McDonough, 792 A.2d 245, 246 n.
2 (D.C. 2002) (per curiam); In re Slosberg, 50 A.2d at 1331 33.
The definition of serious crime is contained in D.C. Bar Rule XI, § 10(b).
For example, in In re Cornish, 691 A.2d 156 (D.C. 1997), the court ordered a
n immediate indefinite suspension for disability with nunc pro tunc treatment to
the date the Rule XI, § 14(g), affidavit was filed, but with reinstatement to be
governed by D.C. Bar Rule XI, § 13(g).
In re Dechowitz, 741 A.2d 1061 n.1 (D.C. 1998) (per curiam) (affidavit timel
y filed when filed within period of extension requested by lawyer; full credit f
or period of temporary suspension).
In re Ventura, 799 A.2d 1200, 1201 (D.C. 2002) (per curiam); In re Spiridon,
755 A.2d 463, 468 n.8 (D.C. 2000) (court adopts board s recommendation, making su
spension effective when section 14(g) affidavit filed).
In re Dunbar, 810 A.2d 917, 918 (D.C. 2002) (per curiam).
In re Goldberg, 460 A.2d at 985 (emphasis added).
In In re Coates, No. 03-BG-1084 (D.C. Aug. 5, 2004) (per curiam), the full i
mport of the failure to file the required affidavit can be seen. Coates was susp
ended in Maryland on September 8, 2003, for one year on consent, did not report
his discipline to Bar Counsel, did not file the required affidavit, and did not
participate in the proceedings before the board. He was temporarily suspended by
the court on October 16 based on the Maryland suspension. In the final order im
posing identical reciprocal discipline, the court ordered him suspended for one
year. The court then stated, For the purpose of seeking reinstatement to the Bar,
respondent s suspension shall not begin until he complies with the affidavit requ
irements of D.C. Bar Rule XI, § 14(g); see also Rule XI, § 16(c). Until then, he sha
ll remain under the temporary suspension imposed by the order of this court on O
ctober 16, 2003. Slip op. at 3.
In re Gardner; In re Saboorian, 770 A.2d 78, 79 n.2 (D.C. 2001).
In In re Charles E. McClain, Sr., No. 03-BG-285 (D.C. Aug. 5, 2004) (per cur
iam), the court imposed a six-month reciprocal sanction on a lawyer for negligen
t misappropriation of funds. The lawyer had been suspended in Maryland for only
30 days. The lawyer had self-reported his conduct to Bar Counsel. The lawyer als
o had filed a timely section 14(g) affidavit and an amended affidavit satisfying
the Goldberg requirements. Upon his readmission to the Maryland bar, the court
lifted his temporary suspension here. The court declined to give nunc pro tunc t
reatment, because [t]o run the suspension entirely nunc pro tunc . . . would mean
that the suspension would not be running concurrently with any suspension actua
lly in effect at the time, apart from [the short period prior to the court s lifti
ng of the temporary suspension order]. Instead the court imposed the suspension p
rospectively, but gave the attorney credit for the period of the temporary suspe
nsion that he had already served.
Disciplinary Actions Taken by the Board on Professional Responsibility
In re Gene P. Belardi. Bar No. 218446. July 30, 2004. The board recommends that
the court suspend Belardi for one year. Belardi was convicted in the United Stat
es District Court for the District of Columbia of three felony counts of making
false statements to a government agency in violation of 18 U.S.C. § 1001, thus vio
lating Rules 3.3(a)(1) and 8.4(b) (d).
In re William Bingham. Bar No. 228064. July 23, 2004. The board ordered Bar Coun
sel to informally admonish Bingham for failing to file a petition for probate or
to advance the probate of an estate over the course of approximately four years
and failing to withdraw from a matter when his physical or mental condition mat
erially impaired his ability to represent his clients, in violation of Rules 1.1
(a), 1.1(b), 1.3(a), 1.3(c), and 1.16(a)(2).
In re Ivan Bogachoff. Bar No. 452152. July 28, 2004. The board recommends that t
he court disbar Bogachoff. Bogachoff was convicted in the United States District
Court for the District of Columbia of one count of bank fraud, in violation of
18 U.S.C. § 1344, a crime involving moral turpitude per se, for which disbarment i
s mandatory under D.C. Code § 11-2503(a) (2001).
In re Tonya L. Daughtery. Bar No. 456827. July 27, 2004. The board recommends th
at the court disbar Daughtery. Daughtery was convicted in the Circuit Court of F
airfax County, Virginia, of two counts of felony embezzlement in violation of Vi
rginia Code § 18.2-111, crimes involving moral turpitude per se, for which disbarm
ent is mandatory under D.C. Code § 11-2503(a) (2001).
In re William B. Devaney. Bar No. 30189. July 30, 2004. The board recommends tha
t the court disbar Devaney. Devaney, while representing a client in an estate ma
tter, conveyed substantial gifts to himself and his family under the terms of th
ree codicils he drafted and executed, in violation of Rule 1.8(b); engaged in th
e unauthorized practice of law by drafting testamentary instruments in Virginia
where he was not licensed, in violation of Rule 5.5(a); and failed to represent
his client with the thoroughness and preparation appropriate in advising a clien
t with a multi-million-dollar estate, in violation of Rule 1.1(a). Three members
of the board dissented from the finding of a Rule 1.1(a) violation, but concurr
ed with the board s other findings and its recommendation that Devaney be disbarre
d.
In re Laurence A. Elgin. Bar No. 159582. July 30, 2004. The board recommends tha
t the court suspend Elgin for six months and order restitution to the complainan
t in the amount of $5,000 plus interest at the legal rate of 6 percent from Augu
st 14, 1998, as a condition of reinstatement. While representing a client on iss
ues stemming from her domestic relations matter, Elgin agreed to a flat fee paym
ent of $10,000, and subsequently an additional $10,000, with $4,000 to be paid t
hrough the authorized use of his client s credit card and the remaining $6,000 to
be credited as repayment for a loan Elgin had previously procured from his clien
t. Thereafter Elgin made charges on the credit card in excess of his legal fees,
and ultimately the credit card company filed suit against the client for nonpay
ment of the credit card balance. Elgin failed to consult his client, who was una
ware of the lawsuit, and entered into a settlement without advising the client o
r giving her the opportunity to determine whether her interests were sufficientl
y protected. The client ultimately settled the matter directly by repaying the c
redit card company $5,000. The board found violations of Rules 1.2(a), 1.3(b)(2)
, 1.4(a), 1.4(b), 1.5(b), 1.7(b)(4), 1.8(a), 8.4(c), and 8.4(d), concluding that
though Elgin had been charged under both D.C. and Virginia rules, the board nee
d not decide which rules to apply because of their similarities in application i
n this matter.
In re Howard L. Greenspan. Bar No. 266668. July 30, 2004. In a reciprocal matter
from Massachusetts, the board recommends that the court impose nonidentical dis
cipline and suspend Greenspan for 30 days. Greenspan, while representing a clien
t in two personal injury matters, failed to safeguard a copy of his client s conti
ngent fee agreement, in violation of Massachusetts Disciplinary Rule (DR) 2-106(
C); failed in the first matter to prosecute his client s action, causing it to be
dismissed; and failed in the second matter to file suit on the action within the
three-year statute of limitations, in violation of DR 6-101(A)(3) and DR 7-101(
A)(1) (3). Greenspan also failed to comply with his client s requests for informatio
n regarding the two matters and failed to forward the client file to successor c
ounsel, in violation of DR 2-110(A)(4) and Rule 1.16(d) of the Massachusetts Rul
es of Professional Conduct (MRPC). Lastly, Greenspan failed to cooperate with th
e Massachusetts Bar Counsel s investigation and to comply with a subpoena to compe
l his appearance at a meeting, in violation of Massachusetts Rule 4:01, § 3(1)(b),
and MRPC Rule 8.4(g). The board concluded that Greenspan violated Rules 1.3(a),
1.3(b), 1.3(c), 1.16(d), 8.1(b), and 8.4(d) of the D.C. Rules of Professional C
onduct. Three members of the board dissented, unable to agree with the board tha
t the Commonwealth of Massachusetts Board of Bar Overseers of the Supreme Judici
al Court is a disciplining court as defined in D.C. Bar Rule XI, § 11(a). The dissen
ters would dismiss the reciprocal proceeding, leaving Bar Counsel the option of
instituting an original proceeding should she deem it warranted. The Board of Ov
erseers had publicly reprimanded Greenspan based on a joint stipulation of the p
arties.
In re Bridgette Harris-Smith. Bar No. 413256. July 29, 2004. In a consolidated c
ase involving reciprocal matters from the United States Bankruptcy Court for the
Eastern Division of Virginia and the Court of Appeals of Maryland, the board re
commends that the court impose identical reciprocal discipline and disbar Harris
-Smith. The bankruptcy court permanently barred Harris-Smith from practice and o
rdered her to refund $600 in attorney fees and pay a monetary sanction of $1,500
. Harris-Smith, while representing a client in a bankruptcy matter, failed to ap
pear at several hearings, failed to provide useful advice, abandoned her client,
and failed to appear at hearings to determine the reasonableness of her fees an
d in response to a show-cause order why she should not be barred from further pr
actice or otherwise sanctioned. The Maryland court disbarred Harris-Smith based
on a joint petition by consent for having engaged in and been convicted of the u
nauthorized practice of law in Maryland with two Maryland residents, in violatio
n of Rules 5.5 and 8.4(b) of the Maryland Rules of Professional Conduct.
In re J. Sinclair Long. Bar No. 433372. July 29, 2004. The board recommends that
the court suspend Long for 30 days and require him to attend three hours of con
tinuing legal education courses in legal ethics and professional responsibility.
Long failed to provide a writing setting forth the basis or rate of his fee for
preparing a will, in violation of Rule 1.5(b). He also violated Rules 1.1(a) an
d 1.1(b) by failing to evaluate the testator s mental capacity or to conform to th
e standard of care used by other lawyers preparing wills for testators with ques
tioned competency. In addition, Long violated Rules 1.7(b)(2) and 1.7(c) by fail
ing to seek the testator s waiver for a conflict of interest that resulted from Lo
ng s drafting the will, which left the testator s entire estate to her caregiver, an
other client whom Long had represented in a case brought by Adult Protective Ser
vices challenging his care of the testator and his management of her finances.
In re Robert W. Mance. Bar No. 285379. July 23, 2004. The board recommends that
the court suspend Mance for 30 days but stay the suspension in favor of one year
of unsupervised probation with the additional condition that he attend six hour
s of continuing legal education courses in ethics and law office management. Whi
le representing a client on appeal of a criminal matter, Mance failed to assert
and preserve his client s rights, in violation of Rule 1.1(a); failed to serve his
client with appropriate skill and care and take corrective action when he misse
d a deadline, in violation of Rule 1.1(b); failed to represent his client zealou
sly and diligently, in violation of Rule 1.3(a); failed to seek the lawful objec
tives of his client by taking necessary action once notified that the appeal was
untimely, in violation of Rule 1.3(b)(1); failed to communicate reasonably with
his client, in violation of Rule 1.4(a); failed to withdraw as counsel after hi
s client terminated the representation, in violation of Rule 1.16(a)(3); and eng
aged in conduct that seriously interferes with the administration of justice by
failing to take action and provide information as directed by the court, in viol
ation of Rule 8.4(d).
In re MaryRose O. Nwadike. Bar No. 455695. July 30, 2004. The board ordered Bar
Counsel to issue Nwadike an informal admonition. Nwadike, while retained to repr
esent parents on behalf of their son in a medical malpractice matter, failed to
serve her clients with appropriate skill and care by neglecting to fulfill her c
ourt-ordered discovery obligations regarding essential expert opinion, thereby p
lacing her clients case in jeopardy, in violation of Rule 1.1(b).
In re Jacob Q. Owusu. Bar No. 442164. July 30, 2004. The board recommends that t
he court suspend Owusu for 60 days with fitness and order him to make restitutio
n to his client in the amount of $3,500 plus interest. Owusu, while retained to
represent a client in an immigration matter, failed to provide competent represe
ntation, to serve his client with appropriate care by not appearing at an Immigr
ation and Naturalization Service interview with his client, and to use the legal
knowledge and skill necessary to properly pursue his client s legal interests, re
sulting in his client s arrest and detainment, all in violation of Rules 1.1(a) an
d 1.1(b); failed to represent his client zealously and diligently within the bou
nds of the law, in violation of Rule 1.3(a); failed to seek the lawful objective
s of his client and to avoid prejudice or damage to his client by neglecting to
properly pursue his client s adjustment-of-status application to avoid known adver
se consequences, in violation of Rules 1.3(b)(1) and 1.3(b)(2); and intentionall
y failed to keep his client reasonably informed about the status of his matter,
in violation of Rule 1.4(a).
In re David V. Peery. Bar No. 442089. July 30, 2004. On remand from the court, t
he board ordered that the petition against Peery be dismissed.
In re T. Carlton Richardson. Bar No. 198523. July 30, 2004. The board recommends
that the court deny Richardson s petition for reinstatement.
In re Charles W. Schoeneman. Bar No. 112615. July 30, 2004. The board recommends
that the court suspend Schoeneman for four months. This matter consolidated a r
eciprocal matter from the United States District Court for the District of Colum
bia with an unrelated original matter arising from Schoeneman s representation of
three clients. The board concluded that Schoeneman should not be subject to reci
procal discipline for the district court s reprimand for Schoeneman s failure to not
ify that court of an earlier revocation of his license. In the original matter,
Schoeneman, while engaged in representing three clients in their employment matt
ers in federal court, failed to provide competent representation, in violation o
f Rule 1.1(a); failed to represent his clients zealously and diligently within t
he bounds of the law, in violation of Rule 1.3(a); intentionally failed to seek
lawful objectives of his clients through reasonably available means, resulting i
n intentional prejudice or damage to the clients, in violation of Rules 1.3(b)(1
) and 1.3(b)(2); failed to keep clients reasonably informed about the status of
their matters and promptly comply with reasonable requests for information, in v
iolation of Rule 1.4(a); engaged in conduct involving dishonesty, fraud, deceit,
or misrepresentation, in violation of Rule 8.4(c); and seriously interfered wit
h the administration of justice in connection with two client representations, i
n violation of Rule 8.4(d). One dissenting member of the board concurred in the
board s affirmative violation findings and sanction recommendation, but concluded
that Schoeneman s failure to notify the court would violate Rule 8.4(d), proscribi
ng misconduct that seriously interferes with the administration of justice, and
thus could be a basis for reciprocal discipline.
In re Winston W. Tsai. Bar No. 130120. July 27, 2004. In a reciprocal matter fro
m Maryland, the board recommends that the court impose functionally identical re
ciprocal discipline and publicly censure Tsai. The Maryland Court of Appeals rep
rimanded Tsai based on a joint petition for reprimand by consent stemming from a
llegations that he engaged in misconduct in his representation of two clients in
separate immigration matters. In one matter, Tsai failed to explain to his clie
nt the consequences of consent to voluntary departure and then failed to file a
new petition for adjustment of status in a timely manner. In the second matter,
Tsai failed to file a timely motion to reopen his client s case. Tsai acknowledged
that in the two immigration cases he failed to act with competence and diligenc
e, failed to communicate adequately with his clients, and engaged in conduct pre
judicial to the administration of justice, in violation of Rules 1.1, 1.3, 1.4,
and 8.4(d) of the Maryland Rules of Professional Conduct.
Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Bernard Bettis. Bar No. 211771. August 5, 2004. The court publicly censure
d Bettis and ordered that he be placed on probation for two years, under the sup
ervision of a practice monitor, with the requirement that he promptly inform his
clients of his probation and pay restitution in the amount of $385 plus interes
t; and file a statement with the court and the board agreeing to the conditions
of probation. In a case involving two separate complaints that were consolidated
in a single petition, Bettis failed to record a contingent fee agreement in wri
ting, in violation of Rule 1.5(c), and failed to promptly disburse settlement fu
nds to satisfy a third party s lien and placed entrusted funds into an account not
designated as an escrow or trust account over which he had no signatory authori
ty, in violation of Rules 1.15(b) and 1.17(a).
In re Robert E. Cappell. Bar No. 321265. July 22, 2004. The court disbarred Capp
ell for intentional misappropriation, in violation of Rules 1.15(a) and 1.15(b),
but stayed the sanction and placed Cappell on probation for three years, subjec
t to conditions recommended by the board in its report and recommendation, in li
ght of Cappell s entitlement to Kersey-style mitigation for depression at the time
of the misconduct.
In re Theodora A. Charles. Bar No. 411049. August 5, 2004. On the basis of a boa
rd report consolidating two matters, the court accepted the board s findings and s
uspended Charles for 30 days, with her reinstatement conditioned upon a showing
of fitness to practice law and her response to Bar Counsel s inquiries in one matt
er. In the first matter, the board had found that Charles failed to provide comp
etent or prompt representation to her client and failed to appear in court for t
rial, resulting in the dismissal of her client s case with prejudice, in violation
of Rules 1.1(a), 1.3(a), 1.3(c), 1.6(a)(1), and 8.4(d). In the second matter, C
harles failed to cooperate with Bar Counsel s investigation of a bar complaint and
a board order, in violation of Rules 8.1 and 8.4(d) and D.C. Bar Rule XI, § 2(b)(
3).
In re Marsden S. Coates. Bar No. 449882. August 5, 2004. In a reciprocal matter
from Maryland, the court imposed identical reciprocal discipline and suspended C
oates for one year. The Maryland Court of Appeals suspended Coates based on a jo
int consent petition for misconduct in two different matters. In the first matte
r, Coates failed to return his client s numerous phone calls, to comply with his c
lient s reasonable requests for information, to supervise his nonlegal staff adequ
ately, and to advise his client of a deportation hearing. In the second matter,
Coates failed to deposit his client s retainer in a properly designated escrow acc
ount and failed to communicate with his client about the status of her case.
In re John H. Kitchings Jr. Bar No. 415011. July 22, 2004. The court suspended K
itchings for 18 months, with reinstatement conditioned upon fitness. Kitchings e
ngaged in neglect of 15 client matters, including failing to communicate; incomp
etence; abandonment; failing to surrender files to clients after discharge; fail
ing to represent the clients with diligence and zeal; failing to act with reason
able promptness in representing the clients; failing to keep the clients reasona
bly informed about their matters; failing to notify promptly of his receipt of f
unds and to deliver to his clients the funds to which they were entitled; and fa
iling to take timely steps upon termination of representation to protect the cli
ent s interests.
In re Charles E. McClain Sr. Bar No. 439941. August 5, 2004. In a reciprocal mat
ter from Maryland, the court imposed nonidentical discipline and suspended McCla
in for six months for misappropriation. The Maryland Court of Appeals had suspen
ded McClain for 30 days for writing a check on a trust account in Maryland that
reduced its balance below the amount of escrowed funds required to be held for a
third party. Although McClain reported his Maryland discipline to Bar Counsel a
nd the board recommended nunc pro tunc treatment, the court imposed the suspensi
on prospectively with credit to McClain for the period of his temporary suspensi
on.
In re Lewis A. Rivlin. Bar No. 10744. August 5, 2004. The court adopted the boar
d s findings of fact and analysis in a decision involving five consolidated matter
s and disbarred Rivlin. The board found that Rivlin had engaged in misconduct in
volving commingling of client and third-party funds with his own; engaged in dis
honesty by repeatedly and knowingly writing checks without sufficient funds; fai
led to maintain complete records for trust account funds; recklessly and/or inte
ntionally misappropriated client funds; failed to deliver client funds and provi
de a complete accounting; failed to advise a client to seek independent legal ad
vice before entering into business transaction with him; engaged in dishonesty b
y concealing his misappropriation; engaged in conduct that seriously interfered
with the administration of justice by failing to respond to Bar Counsel s inquirie
s or comply with the board s order to respond; and failed to respond reasonably to
an ethical complaint in writing. The court agreed with the board s findings of vi
olations of Rules 1.8(a), 1.15(a) and (b), and 8.4(c) and (d), and D.C. Bar Rule
XI, § 2(b)(3). The court further ordered that Rivlin s reinstatement be conditioned
upon a showing of repayment of misappropriated funds with interest.
Informal Admonitions Issued by the Office of Bar Counsel
In re Harnam S. Arneja. Bar No. 946814. July 22, 2004. Bar Counsel issued Arneja
an informal admonition for violating Rule 1.5(b) by failing to provide a writin
g setting forth the basis or rate of his fee while representing a client and the
client s family in an immigration matter.
In re Thomas J. Gagliardo. Bar No. 192575. July 22, 2004. Bar Counsel issued Gag
liardo an informal admonition for violating Rules 1.4(a), 1.5(c), and 1.5(e) whi
le representing a client in an employment matter, by failing to satisfy the requ
irements of a contingent fee agreement, by failing to provide a writing describi
ng co-counsel s responsibilities and the effect on the fee to be charged, and by f
ailing to respond in a timely manner to his client s inquiry regarding his failure
to pay a third party the agreed-upon amount when the civil suit was settled.
In re Helena D. Mizrahi. Bar No. 425775. July 2, 2004. Bar Counsel issued Mizrah
i an informal admonition for violating Rules 1.1(b), 1.3(a), 1.3(b)(2), 3.4(c),
3.4(e), 3.5(c), and 8.4(d) while representing a client in a civil matter, by eng
aging in a pattern of disruptive and disrespectful conduct before a trial judge;
knowingly failing to obey court rulings and alluding to matters not reasonably
believed to be supported by evidence; engaging in conduct intended to disrupt a
tribunal; prejudicing or damaging a client; and lacking the required competence,
diligence, and zeal when refusing to participate substantively in determining j
ury instructions.
The Office of Bar Counsel compiled the foregoing summaries of disciplinary actio
ns. Reports and recommendations issued by the Board on Professional Responsibili
ty, as well as informal admonitions issued by the Office of Bar Counsel, are pos
ted 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, visit www.dccourts.gov/
dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members m
ay have the same name. To confirm the identity of individuals who have been subj
ect to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or
membership@dcbar.org.
graphic