Bar Counsel: Musings From Bar Counsel

From Washington Lawyer, February 2012
By Gene Shipp

Recently, an attorney told me that when she receives Washington Lawyer magazine, she turns first to the “Bar Counsel” column to get ethical advice. I found this surprising, as the Office of Bar Counsel doesn’t give “ethical advice.” The D.C. Bar Legal Ethics Committee has that function. Others have told me they skip directly to the disciplinary lists that follow the column to see what happened to whom, and then they flip to Jake’s offering in the back of the magazine to actually read a real column.

These incidents started me thinking about the purpose of our bi–monthly contribution to the magazine. We have been writing this sometimes informational, sometimes educational, sometimes cautionary, and sometimes general thoughts column for longer than the 31 years I have been on the job. We often sit around and ask ourselves: What is left to write? Occasionally, new rules or new cases make our decision very easy. More often, we wrestle with how to say, yet again, “Don’t lie, cheat, or steal” and “Don’t neglect your clients or their cases.”

Here are some random thoughts on what we are trying to achieve with each column:

• Lawyers’ Ethical Obligations and the Disciplinary System. These columns are the most straightforward. They address an attorney’s obligations under the District of Columbia Rules of Professional Conduct (the rules), see, e.g., “What Should You Do With Disputed Entrusted Funds?” (Wash. Law. Dec. 2010), and the functioning of the disciplinary system, see, e.g., “An Abbreviated Process” (Apr. 2011).
• Best Practices. These columns go beyond the rules and describe practices that can help attorneys avoid ethical complaints. An example: general retainers must be in writing, but you should always get it signed, too, even when the rule does not require it. See, e.g., “These Standards Are Voluntary—and Valid” (Jul./Aug. 2010).
• Warnings to the Bar. These columns warn that the rules have changed or the court has spoken to a particular issue, such as the recent Mance case, which warned the Bar against the use of nonrefundable retainers. See “You Can’t Get Around Mance” (Jul./Aug. 2011). These columns also warn of outside trends that may affect an attorney’s practice, such as phony clients defrauding unsuspecting attorneys. See “If It Sounds Too Good to Be True …” (Oct. 2010).
• General Thoughts. These columns reflect on some idea or observation upon which Bar Counsel feels the need to pontificate, such as this column.

We are all human beings immersed in the human condition. I know that no one wakes up on a given day, looks in the mirror, and says, “I feel a 1.6 violation coming on.” Whether we realize it or not, our day–in and day–out ethical decisions are affected by the client we represent, the type of law we practice, the judge before whom we appear, or even our boss. While 41 percent of our investigated complaints involve solo practitioners, 59 percent do not. They involve firms, government lawyers, public interest lawyers, and those in general counsel offices. While it is hard to write to such a diverse audience, we know that the human condition is what drives poor judgment, white lies, or cute and clever responses that cut an ethical edge—all of which can affect your reputation and your license.

So when Bar Counsel says in a hundred different ways, “Don’t lie, cheat, or steal,” and “Don’t neglect your clients or their cases,” we are coming back to the same two thoughts we could write every month:

• Apply the Golden Rule to all with whom you deal.
• Do unto others as you would have them do unto you.

Now, wouldn’t that make your mother proud?

Gene Shipp serves as Bar Counsel for the District of Columbia.

Disciplinary Actions Taken by the Board on Professional Responsibility Hearing Committees on Negotiated Discipline

IN RE BARRY NAKELL. Bar No. 198382. November 28, 2011. The Board on Professional Responsibility’s Ad Hoc Hearing Committee recommends that the D.C. Court of Appeals accept Nakell’s petition for negotiated discipline for two consolidated matters and suspend him for six months, with the entire sanction stayed in favor of a three–year probation on the condition that Nakell not be found guilty of a violation of any federal or state criminal law or found to have violated any Rules of Professional Conduct. Nakell violated Rules 8.4(b) and 8.4(c).

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

IN RE DONNA M. PETERKIN. Bar No. 473333. November 7, 2011. The Board on Professional Responsibility ordered that the Specification of Charges in the disciplinary proceeding regarding Peterkin be dismissed.

IN RE KEVIN M. SABO. Bar No. 435676. November 9, 2011. The Board on Professional Responsibility recommends that the D.C. Court of Appeals deny Sabo’s Petition for Reinstatement.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE WILFREDO PESANTE. Bar No. 457512. November 3, 2011. The D.C. Court of Appeals disbarred Pesante by consent, effective immediately.

IN RE VAHID SHARIATI. Bar No. 468925. November 10, 2011. The D.C. Court of Appeals disbarred Shariati and, as a condition of reinstatement, required Shariati to make restitution of fees paid to him, with interest at the legal rate, to his former clients or the Client Security Trust Fund. Shariati committed numerous ethical violations over several years in 11 immigration client matters. Specifically, Shariati failed to provide competent representation to his clients and failed to serve his clients with the requisite skill and care; engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation; failed to represent his clients zealously and diligently within the bounds of the law; neglected his clients and failed to act with reasonable promptness; failed to keep his clients reasonably informed about the status of their matters; engaged in conduct that seriously interfered with the administration of justice; failed to surrender papers and property to which his clients were entitled and failed to return unearned fees; engaged in the unauthorized practice of law; failed to communicate in writing the basis or rate of his fee; and destroyed evidence that he knew or reasonably should have known was the subject of a Bar Counsel subpoena in a pending investigation and falsified evidence submitted to the U.S. Immigration and Naturalization Service. Rules 1.1(a) and 1.1(b) in all counts except count V; 1.3(a), 1.3(b), 1.3(c), 1.4(a), and 1.4(b) in counts II, III, IV, V, and VI; 1.16(d) in all counts except count V; 1.5(b) and 5.5(a) in counts IV, VI, and VIII; 3.4(a) in counts VIII, IX, X, and XI; 3.4(b) in counts III and VII; and 8.4(d) in counts II, III, IV, V, VI, VIII, IX, and X.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE MICHAEL R. CARITHERS JR. Bar No. 434113. November 17, 2011. Carithers was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE JAGJOT S. KHANDPUR. Bar No. 438111. November 22, 2011. Khandpur was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE JOHN E. KOLOFOLIAS. Bar No. 97113. November 22, 2011. Kolofolias was suspended on an interim basis based upon discipline imposed in Massachusetts.   

IN RE LILY MAZAHERY. Bar No. 480044. November 16, 2011. Mazahery was suspended on an interim basis pursuant to D.C. Bar R. XI, § 13(e), claim of disability by attorney.

IN RE EGAN P. O’BRIEN. Bar No. 472249. November 3, 2011. O’Brien 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 LARRY E. KLAYMAN. Bar No. 334581. On August 29, 2011, the Supreme Court of Florida reprimanded Klayman.

IN RE DOUGLAS J. MINSTER. Bar No. 418543. On November 2, 2011, the Massachusetts Board of Bar Overseers publicly reprimanded Minster.

IN RE DANA A. PAUL. Bar No. 490142. On October 31, 2011, the Maryland Court of Appeals reprimanded Paul.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE CHRISTIAN J. CAMENISCH. Bar No. 151324. November 1, 2011. Bar Counsel issued Camenisch an informal admonition. While retained to represent a client in a property matter, Camenisch failed to provide competent representation, failed to serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters, failed to represent the client zealously and diligently within the bounds of the law, failed to act with reasonable promptness in representing the client, failed to communicate the basis or rate of the legal fee in writing, failed to withdraw from the representation of the client when the representation will result in a violation of the Rules of Professional Conduct, and engaged in conduct that seriously interfered with the administration of justice. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.5(b), 1.16(a)(1), and 8.4(d).  

IN RE MARTIN F. MCMAHON. Bar No. 196642. October 20, 2011. Bar Counsel issued McMahon an informal admonition. While retained to represent a client in a civil matter, McMahon failed to provide competent representation, failed to serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters, failed to represent a client zealously and diligently within the bounds of the law, and failed to act with reasonable promptness in representing a client. Rules 1.1(a), 1.1(b), 1.3(a), and 1.3(c).

---

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.