Our Name Is New, But Our Mission Is Not

From Washington Lawyer, February 2016
By Gene Shipp

On December 19, 2015, the Office of Bar Counsel became the Office of Disciplinary Counsel. We had been Bar Counsel since 1973. We have never been the attorney or general counsel for the D.C. Bar nor have we ever represented the Bar, but more than occasionally we have had lawyers and the public assume that was our role.[1]

Since we opened our doors, the office has been the prosecutorial arm of the D.C. Court of Appeals' disciplinary system. What is our connection to the Bar? We were established by the D.C. Court of Appeals when it created the disciplinary system for the regulation of attorney conduct under Rule XI of the D.C. Court of Appeals Rules Governing the Bar.[2] The same set of Rules—from Rules I through IX—was used to create the Bar. Our nexus with the Bar is that the Bar's Board of Governors nominates attorneys for each vacancy on the Board on Professional Responsibility (BPR), the Board approves our budget, and the Bar pays our bills.[3]

With that history (not being counsel for the Bar and being an independent disciplinary prosecutor), why should we be called Bar Counsel? On request of the Board of Governors and BPR, the Court of Appeals renamed us to reflect what we actually are—the Office of Disciplinary Counsel. Now this does have a slightly harsh connotation and cuts against 42 years of tradition. After all, we are members of the National Organization of Bar Counsel, which came into existence after Watergate. This was the period when attorney discipline was professionalized. A few bar counsel offices do represent their bars as general counsel as well as handle discipline. However, most disciplinary prosecutors have moved away from this relationship, have become independent, and have been rebranded either as disciplinary counsel or regulation counsel.[4]

If you have read this far, you may be saying, "who cares" or "what does this have to do with me?" Well, we are really the last profession that self-regulates. It is clear to me that self-regulation is ours to lose. If we do not do this well, other players will move in to assume this very important responsibility.

The Office of Disciplinary Counsel exists to protect the public from unethical or inappropriate behavior by attorneys who violate the D.C. Rules of Professional Conduct. We take that responsibility very seriously. Today, this office investigates and prosecutes cases that we could not have undertaken when I joined the office years ago. We now have the resources and wherewithal to handle complex cases such as international matters and conflicts that were ignored for a very long time. For example, we have handled immigration matters where Court of Appeals decisions resulted in the reopening of immigrant cases and the granting of status that stopped deportation.

Self-regulation and protecting the public require the cooperation of attorneys who find themselves to be respondents. Truthful and candid answers to our inquiries serve the public, the disciplinary system, and, ultimately, the attorney involved. While we are now named Disciplinary Counsel, we still have the resources and willingness to assist attorneys in improving their practice. A successful investigation often ends with the complainant understanding the resolution, maybe having a fee returned or the matter completed by the attorney in a successful manner, and the attorney having an appreciation of how to avoid such complaints in the future.

No one wants a letter from the newly named Office of Disciplinary Counsel. Remember, a law license is a privilege and comes with the obligations imposed by the Rules of Professional Conduct and Rule XI. We all need to take our ethical responsibilities seriously if we are to remain a self-regulating profession. The office welcomes the day we seek less discipline despite our new name. Please help us in that endeavor.

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Notes

[1] Once, in 1982, I was "attorney of the day" when a member of the public called to enroll in a class to learn how to make various cocktails.
[2] You can find this body of rules appended to the D.C. Court of Appeals Rules.
[3] The Board on Professional Responsibility is our governing body and serves as the second-tier adjudicator in discipline matters.
[4] The D.C. Bar's Office of Regulation Counsel provides confidential help to attorneys in areas such as ethics, practice management, addiction, mental health problems, and fee arbitration. The office is not a part of the Office of Disciplinary Counsel.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

IN RE ELEANOR NACE. Bar No. 287391. November 12, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Nace. In addition, as a condition of reinstatement, the Board recommends that Nace be required to make restitution to the Clients' Security Trust Fund in the amount of $2,050 (less any amounts repaid), with interest at the legal rate. While retained to represent a client in matters relating to that client's earlier divorce, Nace failed to provide competent representation, failed to serve the client with skill and care, failed to represent the client zealously and diligently, intentionally failed to seek the lawful objectives of the client, failed to act with reasonable promptness, failed to keep the client reasonably informed, failed to hold an advance fee in a trust or escrow account until earned and recklessly misappropriated entrusted funds, failed to surrender papers and property after termination of the representation, failed to respond to a disciplinary authority, and engaged in conduct that seriously interfered with the administration of justice. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.15(a), 1.15(e), 1.16(d), 8.1(b), and 8.4(d).

IN RE DANIEL M. WEMHOFF. Bar No. 420233. November 20, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Wemhoff for 30 days and that the suspension be stayed, and that Wemhoff be placed on probation for one year, with the condition that he undergo an assessment by the assistant director of the D.C. Bar Practice Management Advisory Service (PMAS), or a designee; implement any recommendations that the PMAS may make; and sign a limited waiver permitting the PMAS to confirm his compliance with this condition, and his cooperation in the assessment process. The disciplinary proceeding arose out of Wemhoff's representation in a civil action. Specifically, Wemhoff disclosed his client's confidences and secrets without authorization or other justification, knowingly disobeyed an obligation under the rules of a tribunal, and engaged in conduct that seriously interfered with the administration of justice. Rules 1.6(a), 3.4(c), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE ANDRE P. BARBER. Bar No. 466138. November 12, 2015. The D.C. Court of Appeals disbarred Barber. The matters arose out of Barber's involvement in a series of landlord–tenant disputes, one in which he was the tenant and in the others he was counsel for the tenants. Barber pursued frivolous pro se litigation with his own landlord and engaged in wide-ranging misconduct while representing three tenants, two of whom he eventually sued for fees, in their dispute with another landlord. Barber engaged in frivolous and burdensome litigation tactics, pursued meritless claims for attorney's fees, disobeyed a court order, failed to cooperate with Bar Counsel's investigation, and made false representations in both judicial and disciplinary proceedings. Rules 1.3(b)(2), 1.4(a), 1.7(b)(4), 3.1, 3.2(a), 3.2(b), 3.3(a), 4.4, 7.1(a), 7.5(a), 7.5(d), 8.1(a), 8.4(c), 8.4(d), and 8.4(g) and D.C. Bar R. XI, § 2(b)(3).

IN RE ATHANASIOS BASDEKIS. Bar No. 463692. November 12, 2015. The D.C. Court of Appeals accepted Basdekis's petition for negotiated discipline and suspended him for four months, execution suspended in favor of an 18-month period of unsupervised probation subject to conditions. The violations stem from Basdekis's neglect of six clients that occurred from 2002 to 2006. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.4(a), and 3.2(b).

IN RE SANDY THOMAS-BELLAMY. Bar No. 1011060. November 12, 2015. The D.C. Court of Appeals accepted Thomas-Bellamy's petition for negotiated discipline and suspended her for one year with fitness. Thomas-Bellamy violated four Rules in connection with her application for admission to the District of Columbia Bar. Rules 8.1(a), 8.1(b), 8.4(c), and 8.4(d).

Reciprocal Matters

IN RE MELODIE V. SHULER. Bar No. 488686. November 5, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Shuler for 30 days with reinstatement conditioned on her showing that her disability has ended pursuant to D.C. Bar R. XI, § 13(g). In Maryland, Shuler was found to have essentially abandoned her representation of a client.

IN RE EARL A. SMITH. Bar No. 392331. November 5, 2015. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Smith. In Maryland, Smith was found to have failed to comply with recordkeeping requirements, allowing a nonlawyer assistant to intentionally misappropriate over $600,000 of entrusted funds belonging to Smith's clients.

IN RE JAMES C. UNDERHILL JR. Bar No. 297762. November 5, 2015. In a reciprocal matter from Colorado, the D.C. Court of Appeals revoked Underhill's previously imposed probation and suspended him for three months and one day, with a requirement that he demonstrate his fitness to practice law prior to reinstatement. In Colorado, Underhill was found to have violated his probation by repeatedly communicating directly with a represented party about the subject of the litigation.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE G. ROBERT BLAKEY. Bar No. 424844. October 30, 2015. Bar Counsel issued Blakey an informal admonition. While retained to represent a client, who was in-house counsel, in her effort to provide evidence that her former corporate employer was engaged in alleged illegal activities, Blakey assisted that client in knowingly revealing confidences and secrets, or using a confidence or secret to the disadvantage of a former client. Rule 8.4(a).

IN RE JOHN W. DAVIS. Bar No. 931600. October 21, 2015. Bar Counsel issued Davis an informal admonition. While representing clients in three independent matters, Davis violated multiple Rules of Professional Conduct. Specifically, while representing a client in her efforts to resolve her unfavorable employment situation, Davis failed to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation and failed to put the basis or rate of the fee in writing. Rules 1.4(b) and 1.5(b). While representing a client in a District of Columbia Superior Court civil case, Davis failed to provide competent representation, failed to represent the client with diligence and zeal, 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), and 8.4(d). While representing a client in multiple matters against his employer intermittently from 2009 through early 2015, Davis failed to represent the client with diligence and zeal and failed to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rules 1.3(a), 1.3(c), and 1.4(b).

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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.