Bar Counsel: Add ‘Stubborn’ to the Human Condition List

From Washington Lawyer, December 2013
By Gene Shipp

It was five years ago that we wrote a column on the human condition. We said that the human condition never changes, but we now know that our ability to observe the human condition leads us to new discoveries or definitions of those conditions. OK, how would we define the human condition at the Office of Bar Counsel? We know that we have Rules of Professional Conduct and that attorneys violate these rules. We also know that most attorneys do not wake up in the morning and say, “Today, I am going to violate Rule 1.1 by becoming incompetent.” Some human condition generally causes the misconduct. (We are not talking about the alcoholic, drug abuser, or mentally ill lawyer in this article.)

It has been a hobby of mine to categorize the “Traps of the Practice” or the human condition that often seems to underlie the conduct. We have been covering these traps in the mandatory course for new admittees for many years. Since these traps are the driving force in professional misconduct, we take this opportunity to reprise the column with our new observations.

The traps of the practice include the difficult client; too much zeal; last-minute situations; it was an old friend, not a “real client,” and/or I was just helping; my intentions were good; self-help to clients’ money; I didn’t know or no one taught me that rule; it wasn’t the practice of law; self-justification after the conduct has occurred; I have been around and I know what I am doing; not paying attention or too busy; just plain stubborn (the new one); and the deadly avoidance syndrome.

Many of these are self-evident or self-proving when it comes to a disciplinary hearing. A short review might awaken our self-preservation monitoring system to avoid the bad consequences of a disciplinary inquiry.

• The difficult client. We all have had this client or will at some point in our legal careers. This client is such a pain that we often give in and use bad judgment in making decisions just to please him or her. Feel free to tell this client that Bar Counsel is looming just around the corner and is ready to urge the court to snatch your license. Remember that old slogan from a few years back, “Just Say No?” It is the right thing to do.
• Too much zeal. Often a young lawyer or one who has become too invested in a client’s case falls into this category. In zealously representing a client, this attorney skids past the ethics stop sign and lives to regret it.
• Last-minute situations. The pressure to get the job done at the last minute and without embarrassment often leads to bad judgment or defensive lies, which are easily detectable. Please, just admit that you need more time, don’t give in to last-minute pressure, and be candid about your situation.
• It was an old friend, not a ‘real client,’ and/or I was just helping. This is where attorneys get out of their comfort zone by entering into unfamiliar legal territory. It often begins with giving just a little legal advice and ends with a failure to establish a proper attorney–client relationship. You know the scenario, the little question asked at a wedding by a distant cousin who knows you are a lawyer. It always starts with the question, “You’re a lawyer, aren’t you?” Do not get sucked into this type of unintended relationship.
• My intentions were good. This is the human condition where we become so invested in the righteousness of our client’s case that we cannot understand why anyone could possibly disagree. We often forget that there are two sides in every matter. In this situation, we really push the ethics envelope to assist our client’s case. The ability to see the entire field is not just a tactical nicety, it protects you from bad judgment.
• Self-help to clients’ money. This is the easiest lawyer in the world to prosecute, and we don’t even feel bad doing it. Greed and a sense of entitlement are just a couple of the characteristics of this type of lawyer.
• I didn’t know or no one taught me that rule. Unfortunately, some of the fault here lies with the law schools as well as the lawyer. We are amazed how many lawyers don’t understand trust accounts or the obligation to protect Rule 1.6 secrets because these topics were never taught. That is one of the benefits of the mandatory course for new admittees. Our office gets a chance to provide caution in all of the areas we have identified as deficits from a law school education.
• We once wrote the deans of all the local law schools and asked if we could send one of our lawyers for a one-hour chat in each professional responsibility class. One school responded that it would forward the request to the faculty. End of story. Even after first writing this column five years ago, we still have not heard from the law schools.
• It wasn’t the practice of law. Some lawyers don’t understand that the rules apply in their personal lives as well as their professional lives. (See Rule XI Section 2(a)).
• Self-justification after the conduct has occurred. When lawyers violate the rules, they often engage in self-justification and sometimes get creative in their attempts to backtrack. The best policy is to deal with the violation, why it happened, and why it will not happen again. The discipline system is much kinder to that approach. It is an old D.C. saying that it is never the crime but always the cover up.
• I have been around and I know what I am doing. This is the unfortunate refrain we hear from older attorneys. The rules and the law change, but the attorneys do not. Some believe that what they were taught 40 years ago in law school is still the state of the ethics rules. Attorneys should remain current and regularly review the rules.
• Not paying attention or too busy. Neglect of an entrusted legal matter has been the number one violation for the past 35 years. At least 50 percent of our cases involve neglect. The golden rule, do unto others as you would do unto yourself, is a great way to view your work on your client’s case.
• Just plain stubborn. This is our latest addition. The lawyer who will not return the client’s file even though it is the client’s property. The lawyer who is so insulted by the client’s views on the case that he or she ignores the client’s legitimate wishes. The lawyers who decide it is their way or the highway over areas where reasonable people could disagree and then refuse to refund any of the fees. Stubborn or unreasonable positions result in complaints. Complaints result in investigations, which cause loss of law practice time, anxiety, and often can be avoided by good client relations.
• The deadly avoidance syndrome. We often write on this subject. We will not repeat that article. (See, as one example, Avoiding Avoidance, Wash. Law., Oct. 2006, at 12.)

Remember that it is not necessarily a bad person who gets into ethics trouble. It is often an attorney who is not paying attention or reacts badly under stress.

Finally, the ultimate indicator of needing ethical advice is the feeling that your parents would not be especially proud of the decision that you are about to make.

P.S. If you disagree with this list, we are not changing it, g.

Gene Shipp serves as bar counsel for the District of Columbia.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

IN RE DONNA BARNES DUNCAN. Bar No. 329144. September 25, 2013. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Duncan by consent.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE AMAKO N. K. AHAGHOTU. Bar No. 352237. September 12, 2013. The D.C. Court of Appeals disbarred Ahaghotu for reckless misappropriation, in addition to other rule violations. The violations stemmed from Ahaghotu’s handling of his escrow account and his representation of a client in a personal injury matter. Specifically, Ahaghotu violated Rule 1.15(a) (commingling, failure to maintain adequate escrow records, and misappropriation); D.C. Bar R. XI, § 19(f); former Rule 1.17(a) (whose prescriptions are now found at Rule 1.15(b)) (improperly designated escrow account); and Rule 1.3(c) and former Rule 1.15(b) (now redesignated as Rule 1.15(c)) (delayed disbursement of client funds).

Reciprocal Matters

IN RE HAROLD L. BOYD III. Bar No. 481736. September 26, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Boyd for 60 days with fitness, effective immediately. In Maryland, Boyd agreed that sufficient evidence could be produced to sustain allegations that he had failed to file his personal income taxes on a timely basis for calendar years 2004 through 2009, resulting in significant tax liabilities.

IN RE MARK H. FRIEDMAN. Bar No. 384444. September 26, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Friedman, effective immediately. In Maryland, Friedman admitted to knowingly misappropriating client funds held in escrow.

IN RE ROSS D. HECHT. Bar No. 439909. September 26, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Hecht for six months with fitness, effective immediately. In Maryland, Hecht admitted that he failed to hold an unearned fee in trust and also agreed that sufficient evidence could be produced to sustain allegations that he failed to respond to Maryland Bar Counsel’s requests for information and failed to communicate with his clients.

IN RE REBECCA L. MARQUEZ. Bar No. 444762. September 26, 2013. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Marquez for five years, effective immediately. In addition, because Marquez is also subject to a disability suspension under D.C. Bar R. XI, § 13(e), prior to reinstatement Marquez must demonstrate that her disability has ended and that she is fit to resume the practice of law.

IN RE HENRY D. MCGLADE. Bar No. 379954. September 26, 2013. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and indefinitely suspended McGlade, effective immediately, with the right to seek reinstatement after five years or upon his reinstatement to the bar of Maryland, whichever is first. In Maryland, McGlade admitted that he failed to respond to Maryland Bar Counsel’s requests for information and that he engaged in the unauthorized practice of law while suspended.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE JAMES M. CUTSHAW. Bar No. 437386. September 17, 2013. Cutshaw was suspended on an interim basis based upon an interim suspension imposed in Louisiana.

IN RE ROBERT S. FASTOV. Bar No. 56333. September 13, 2013. Fastov was suspended on an interim basis pursuant to D.C. Bar R. XI, § 9(g), pending final action on the Board on Professional Responsibility’s July 31, 2013, recommendation of an 18-month suspension with fitness.

IN RE ROSEMARY FOSTER. Bar No. 207332. September 18, 2013. Foster was suspended on an interim basis based upon discipline imposed in Oregon.

IN RE SCOTT B. GILLY. Bar No. 442356. September 17, 2013. Gilly was suspended on an interim basis based upon discipline imposed in the U.S. District Court for the Southern District of New York.

IN RE DARYL J. HUDSON III. Bar No. 292045. September 17, 2013. Hudson was suspended on an interim basis based upon his conviction of a serious crime in the U.S. District Court for the District of New Mexico.

IN RE STEPHEN T. YELVERTON. Bar No. 264044. September 17, 2013. Yelverton was suspended on an interim basis pursuant to D.C. Bar R. XI, § 9(g), pending final action on the Board on Professional Responsibility’s July 31, 2013, recommendation of a 90-day suspension with fitness.

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 WAYNE RICHARD HARTKE. Bar No. 200378. On March 11, 2010, the Virginia State Bar Disciplinary Board reprimanded Hartke.

IN RE WAYNE RICHARD HARTKE. Bar No. 200378. On October 7, 2011, the Virginia State Bar Disciplinary Board reprimanded Hartke.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE GREGG D. BARON. Bar No. 445511. September 5, 2013. Bar Counsel issued Baron an informal admonition. While serving as appointed trial counsel in a criminal matter, Baron failed to provide competent representation and revealed a client secret in his motion to withdraw. Rules 1.1(a) and 1.6(a)(1).

IN RE IFEOLU FABAYO. Bar No. 982634. September 4, 2013. Bar Counsel issued Fabayo an informal admonition. While retained to represent a client in a personal injury matter, Fabayo failed to keep, preserve, and produce to Bar Counsel complete records of the client’s settlement funds. Rule 1.15(a) and D.C. Bar R. § XI, 19(f), and the counterpart provisions of the Maryland Rules of Professional Conduct as made applicable by D.C. Rule 8.5(b)(2)(ii).

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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.