In re Thomas Fortune FAY, Respondent.
No. 14-BG-7.
District of Columbia Court of Appeals.
Argued Oct. 28, 2014. Decided March 19, 2015.
111 A.3d 1025
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 23929).
In sum, the court‘s opinion unnecessarily addresses in dicta an important question of first impression, without the benefit of briefing by the parties. I also have substantial reservations about the court‘s discussion of the question. I therefore respectfully concur only in the judgment.
John Vail, with whom John W. Karr, Washington, DC, was on the brief, for respondent.
H. Clay Smith, III, Assistant Bar Counsel, with whom Wallаce E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for the Office of Bar Counsel.
Before THOMPSON and McLEESE, Associate Judges, and PRYOR, Senior Judge.
PER CURIAM:
After an extensive hearing, a Hearing Committee (Committee), concluded that, in the circumstances presented, respondent Thomas Fortune Fay entered into an attorney-client relationshiр with complainant Charles Carter at the request of a lawyer who was not licensed to practice law in the District of Columbia. The Board on Pro-
I.
After investigation and review of Mr. Carter‘s complaint, Bar Counsel, on March 22, 2010, filed allegations of multiple violations of the Rules against respondent. For reasons attributable to both parties, the hearings were delayed until September 14, 2011. After denying a variety of procedural contentions raised by respondent, the Committee mаde findings of fact and conclusions of law. The Committee found that in 1996, Mr. Carter suffered injuries in an automobile accident in the District of Columbia. Mr. Carter retained attorney Joel Chasnoff to represent him in a personal injury case arising out of the accident. Mr. Chasnoff was admitted to practice law in Maryland and the District, but his bar membership in the District had been suspended for his failure to pay dues. Although thе retainer agreement did not authorize any other attorney to represent Mr. Carter, Mr. Chasnoff informed Mr. Carter that he would need to enlist local counsel if the matter proceeded to trial.
Mr. Chasnoff asked respondent to sign his name to and file a complaint in the case because his bar membership in the District was inactive. On June 14, 1999, respondent‘s paralegal and Mr. Chasnoff‘s secrеtary filed the complaint in the Superior Court. The complaint listed respondent and Mr. Chasnoff as attorneys. Because Mr. Chasnoff failed to serve the defendant with the complaint the case was dismissed on September 3, 1999. After receiving notice of the dismissal, respondent filed a
The Committee concluded that respondent had entered into an attorney-client relationship with Mr. Carter when he professionally accepted responsibility for Mr. Carter‘s case by authorizing his signature and use of his bar number on the complaint. Comparing respondent‘s participation in Mr. Cаrter‘s case to that of local counsel in a case in which an attorney has been admitted pro hac vice, the Committee concluded that respondent assumed the responsibilities imposed by the Rules. Specifically, the Committee concluded that respondent violated the following Rules: Rule 1.1(b) (“A lawyer shall serve a client with skill and care commensurate with that generally affоrded to clients by other lawyers in similar matters.“), Rule 1.3 (requiring a lawyer to “represent a client zealously and diligently within the bounds of the law” and to “act with reasonable promptness in representing a client“), Rule 1.4(a) and (b) (requiring a lawyer to “keep a client reasonably informed about the status of a matter” and to “explain a matter to the extent reasonably necessary to permit the сlient to make informed decisions regarding the representation“), and Rule 1.5(b) (requiring a lawyer to provide to the client a written fee agreement).1
Because of respondent‘s lack of disciplinary record, his good faith in trusting Mr. Chasnoff to re-activate his bar membership and assume the responsibility of the case, the limited effect of respondent‘s conduct on Mr. Carter‘s case, and respondent‘s reputation and professionalism, the Committee recommended that respondent be sanctioned with an informal admonition.
The Board agreed with the Committee and concluded that, by authorizing the complaint to be filed in Superior Court with his signature and subsequently filing a motion to reinstate the complaint, respondent entered into an attorney-client relationship with Mr. Carter. The Board explained that its conclusion was consistent with In re Washington, 489 A.2d 452, 456 (D.C. 1985), which cautioned:
We say again, in the hopes that our message will reach the ears of the whole Bar, that when an attorney undertakes to act on behalf of another person in a legal matter, no matter how pure or beneficent his original intention may have been, he invokes upon himself the entire structure of the Code of Professional Responsibility and its consequent enforcement through disciplinary proceedings.
The short truth of the matter is that the [C]ode does not, and [cannot], create two tiers of ethical obligations, one for attorneys acting formally and for gain, and another for those who act for other reasons. All attorneys must act in an ethical manner when they act as attorneys regardless of what motivates them to undertake the attorney-client relationship.
The Board agreed with the Committee‘s conclusion that respondent violated Rules 1.1(b), 1.3, 1.4(a) and (b), and 1.5(b), as well as the Committee‘s recommended sanction. The Board also agreed with the Committee‘s disposition of respondent‘s pre-hearing motions.
A.
Upon review of a disciplinary proceeding, we “accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record,”
B.
Relying on the premise that he never entered into a representation agreement with the client, respondent has consistently asserted that no attorney-client relationship existed between them. We, therefore, begin our analysis of the question from a broader historic context. Members of the bar who practicе law serve a variety of roles and have a range of professional responsibilities. Lawyers have duties and obligations to their clients,
[t]he license to practice law in the District of Columbia is a continuing proclamation by this court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the
Bar as conditions for the privilege to practice law.
The existence of an attorney-client relationship is not solely dependent on a written agreement, payment of fees, or the rendering of legal advice. In re Lieber, 442 A.2d 153, 156 (D.C. 1982). An attorney‘s “ethical responsibilities exist independently of contractual rights and duties“; consequently, the obligations imposed by the Rules arise “from the establishment of a fiduciary relationship between attorney and client.” In re Ryan, 670 A.2d 375, 379, 380 (D.C. 1996). Although in perhaps the majority of cases the attorney-client relationship is created when the client retains the attorney, the relationship may also be created by court appointment. Seе, e.g., Lieber, 442 A.2d at 156 (citing Powell v. Alabama, 287 U.S. 45, 73 (1932)); see also
Here, the Board considered substantial evidence to conclude that respondent formed an attorney-client relationship with Mr. Carter. It is critical that respondent authorized the filing of Mr. Carter‘s complaint with his signature and bar number and later initiated and filed an additional pleading in which he identified himself as Mr. Carter‘s attorney. As an officer and fiduciary, respоndent represented to the court, through his filings, that an attorney-client relationship existed.2
Moreover, respondent was aware that he was the only counsel of record in Mr. Carter‘s case who was licensed to practice law in the District; respondent knew that Mr. Chasnoff‘s bar membership was inactive. Like local counsel facilitating the practice of an attorney admitted рro hac vice, respondent was responsible for Mr. Carter‘s case in the event that Mr. Chasnoff failed to adequately pursue it. See
C.
We also agree with the Board and the Committee that respondent should be informally admonished. Sanctions in attorney disciplinary proceedings must serve the public interest and be imposed to deter future conduct rather than to punish the attorney. Goffe, 641 A.2d at 464. In determining the appropriate sanction, both the Board and this court consider:
- the seriousness of the conduct at issue;
- the prejudice, if any, to the client which resulted from the conduct;
- whether the conduct involved dishоnesty and/or misappropriation;
- the presence or absence of violations of other provisions of the disciplinary rules;
- whether the attorney had a previous disciplinary history;
- whether or not the attorney acknowledged his or her wrongful conduct; and
- circumstances in mitigation of the misconduct.
In re Elgin, 918 A.2d 362, 376 (D.C. 2007) (alteration in original) (quoting In re Thyden, 877 A.2d 129, 144 (D.C. 2005)).
Here, both the Board and the Committee considered each of these seven factors in fashioning an appropriate sanction and ultimately concluded that the mitigating factors in this case—respondent‘s lack of disciplinary history and dishonest motive, his intent to aid Mr. Chasnoff, his belief that Mr. Chasnoff would take responsibility for the case, the lack of prejudice to Mr. Carter, and respondent‘s professional career—warranted only an informal admonition. This sanction is not punitive. Therefore, we conclude that respondent shall be informally admonished.
III.
Respondent also argues that he was denied due process because of procedural errors in his hearing before the Committee. Respondent alleges four procedural errors that denied him due process: (1) the inability to conduct voir dire of the Committee members; (2) the Committee‘s “gross delay” in adjudicating the charges against him; (3) the inclusion of a non-District resident in the Hearing Committee; and (4) the punitive nature of the sanctions against him.
Because disciplinary proceedings are “quasi-criminal,” attorneys subject to discipline are entitled to due process of law. In re Williams, 464 A.2d 115, 118-19 (D.C. 1983). However, disciplinary proceedings are not criminal proceedings, and “attorneys are not afforded all of the protections which are extended to criminal defendants.” In re Benjamin, 698 A.2d 434, 439 n. 8 (D.C. 1997). The due process rеquirement is therefore satisfied by adequate notice of the charges and a meaningful opportunity to be heard. In re Edelstein, 892 A.2d 1153, 1157 (D.C. 2006) (quoting In re Day, 717 A.2d 883, 886 (D.C. 1998)). To be successful on review, respondent must show that the Committee erred and that the error “resulted in substantial prejudice.” Thyden, 877 A.2d at 140.
We discern neither error nor prejudice here. First, attorneys undergoing disciplinary proceedings do not have a general right to voir dire of the Committеe members. In re Burton, 472 A.2d 831, 846-47 (D.C. 1984) (noting the need for a factual basis for challenging a Committee member). Respondent demonstrated no
IV.
We conclude that respondent formed an attorney-client relationship with Mr. Carter. Because respondent failed to zealously pursue Mr. Carter‘s claim and adequately communicate with Mr. Carter about his case, respondent violated Rules of Professional Conduct 1.1(b), 1.3, 1.4(a), 1.4(b), and 1.5(b). Accordingly, he shall be informally admonished.
So ordered.