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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