Washington Lawyer - September 2016 - 39
ASK THE
ETHICS EXPERTS
Q:
I have been retained by the Owner of an
upscale Restaurant in the District to
represent him with respect to a possible
employment action by a transgender
Employee. While no action has yet been filed, Owner has
heard "through the grapevine" that Employee has already
retained counsel and intends to bring a test case
involving the bathroom arrangements at Restaurant.
Owner has also heard that Employee has made several
statements to her fellow wait staff that would be of great
benefit to my client in defending against these claims.
Since I do not know that Employee is represented by
counsel, may I contact her and speak directly to her?
If not, may I direct Owner to speak to her and report
back to me? And may I interview other Restaurant
employees about this matter?
DISCIPLINARY
SUMMARIES
Disciplinary Actions Taken by the
Board on Professional Responsibility
Hearing Committees on Negotiated
Discipline
In re Antoini M. Jones. Bar No. 428159.
June 29, 2016. The Board on Professional
Responsibility's Ad Hoc Hearing Committee
recommends that the D.C. Court of Appeals
accept Jones's petition for negotiated
discipline and suspend Jones for 90 days,
but that the suspension be stayed in favor
of a probationary period of one year, during
which Jones must: (1) meet with and obtain
an assessment from the Practice Management
Advisory Service and comply with and
implement any PMAS recommendations,
including the supervision of a practice
monitor; (2) not be found to have engaged
in any additional ethical misconduct; and
(3) complete his financial obligations to the
client. If Jones fails to comply with any of
these terms, his probation may be revoked
and he may be required to serve the 90-day
suspension previously stayed, consecutively
with any other discipline or suspension that
may be imposed in the event of a finding that
he engaged in further ethical misconduct.
Rules 1.1(a), 1.1(b), 1.3(c), and 1.4(a).
Disciplinary Actions Taken by the
Board on Professional Responsibility
Original Matters
In re W. Burrell Ellis Jr. Bar No. 413089. June 24,
2016. The Board on Professional Responsibility
A:
Pursuant to Rule 4.2(a), you may not
communicate about the subject of the
representation with a person known to be
represented by another lawyer in the matter
(unless that lawyer gives you consent). You lack actual
knowledge that Employee is represented, but you cannot
simply turn a blind eye to information that she may be.
As such, you may contact Employee, declaring "As
counsel for Restaurant, I would like to speak with you,
but please say nothing except to answer this question:
are you represented by counsel?" If Employee responds
affirmatively, you must immediately terminate the
communication (except you may ascertain her
lawyer's identity).
A non-lawyer party may always speak with an opposing
party directly, so Owner certainly may talk to Employee.
However, since the broad intent of Rule 4.2 is to afford
recommends that the D.C. Court of Appeals
disbar Ellis. Ellis was convicted of two crimes
under Georgia law: one count of criminal
attempt to commit theft by extortion, in
violation of Ga. Code Ann. § 16-4-1, and three
counts of perjury, in violation of Ga. Code Ann.
§ 16-10-70. The Board found that Ellis's
convictions involve moral turpitude per se,
requiring his disbarment under D.C. Code §
11-2503(a).
In re Brandi S. Nave. Bar No. 490964. June 23,
2016. The Board on Professional Responsibility
recommends that the D.C. Court of Appeals
disbar Nave. While representing multiple
personal injury claimants, Nave failed to safe
guard funds sufficient to pay medical
providers who had a claim against those
funds, failed to promptly deliver funds,
failed to distribute funds, and engaged in
intentional misappropriation. Rules 1.15(a),
1.15(c), and 1.15(d).
Disciplinary Actions Taken by the
District of Columbia Court of Appeals
Original Matters
In re Eleanor Nace. Bar No. 287391. June 16,
2016. The D.C. Court of Appeals disbarred
Nace, with reinstatement conditioned on her
restitution to the Client's Security Trust Fund
in the amount of $2,050 (less any amounts
earlier 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 lawful
objectives of the client; failed to act with
By Saul J. Singer
a represented person the benefit of advice of counsel,
you may not direct Owner's communications as,
for example: "I cannot speak directly to Employee,
but you can, so here's what I want you to say to her . . ."
Finally, you may speak to any other unrepresented
employees of Restaurant, but, pursuant to Rule 4.3,
you must first identify yourself; make clear whom you
represent and where your interests lie; and, of course,
make no misrepresentations or misleading statements.
D.C. Bar Legal Ethics counsel
Hope C. Todd, Saul Jay Singer,
and Erika Stillabower are
available for inquiries at
ethics@dcbar.org.
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), 1.3(c), 1.4(a), 1.15(a), 1.15(e),
1.16(d), 8.1(b), and 8.4(d).
Interim Suspensions Issued by the
District of Columbia Court of Appeals
In re Steven H. Berkowitz. Bar No. 370591.
June 3, 2016. Berkowitz was suspended on
an interim basis based upon a disability
inactive status imposed in Pennsylvania.
In re Karen Caco. Bar No. 992216. June 3, 2016.
Caco was suspended on an interim basis
based upon discipline imposed in Florida.
In re William P. Corbett Jr. Bar No. 445800.
June 3, 2016. Corbett was suspended on an
interim basis based upon discipline imposed
in Massachusetts.
In re Peter R. Estes. Bar No. 358466. June 3,
2016. Estes was suspended on an interim basis
based upon discipline imposed in California.
In re Barbara J. Hargrove. Bar No. 173419.
June 28, 2016. Hargrove was temporarily
suspended, effective 30 days from the date
of the order, for failing to respond to the
Board's on Responsibility's order that she
respond to Disciplinary Counsel's
investigation of a matter involving allegations
of serious misconduct.
In re Stephanie G. Reich. Bar No. 473039.
June 3, 2016. Reich was suspended on an
interim basis based upon conviction of a
serious crime in the D.C. Superior Court.
In re Laura Hawkins Strachan. Bar No. 416662.
June 3, 2016. Strachan was suspended on
an interim basis based upon discipline
imposed in Maryland.
Informal Admonitions Issued by the
Office of Disciplinary Counsel
In re John P. Mahoney. Bar No. 442839. June 9,
2016. Disciplinary Counsel issued Mahoney an
informal admonition for failing to protect a
client's confidences and secrets when he
included detailed information about a client
and her case in response to a website posting.
Thereafter, Mahoney further violated the
Rules by posting another response on the
website stating that Disciplinary Counsel had
cleared him, and quoted a sentence from a
letter that omitted information about the
alleged Rule 1.6 violation that Disciplinary
Counsel found meritorious. Rules 1.6 and 8.4(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.
* WASHINGTON LAWYER * SEPTEMBER 2016 39
http://www.dcattorneydiscipline.org
http://www.dccourts.gov/internet/opinionlocator.jsf
http://www.dcbar.org
http://www.dcbar.org/
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