In re Thomas Fortune Fay ( 2015 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-BG-7
IN RE THOMAS FORTUNE FAY, RESPONDENT.
A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 23929)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-D139-02)
(Argued October 28, 2014 Decided March 19, 2015)
John Vail, with whom John W. Karr was on the brief, for respondent.
H. Clay Smith, III, Assistant Bar Counsel, with whom Wallace 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 relationship 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 Professional Responsibility (Board) approved
2
the Committee’s findings and conclusions and recommends that respondent receive
an informal admonition for violating several Rules of Professional Conduct (Rules)
relating to that attorney-client relationship. For the reasons stated in this opinion,
we agree.
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 made 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 the
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.
3
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 secretary 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 motion to reinstate the case and for leave to make
substituted service. The motion was denied. A second motion was denied without
prejudice. Mr. Chasnoff was subsequently disbarred in both Maryland and the
District of Columbia.
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. Carter’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 afforded to clients by other lawyers in similar
4
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 client 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-
1
Respondent was charged with violating Rule 1.5 (e)—requiring an
attorney to obtain informed consent from his client for a division of fees between
lawyers—but the Hearing Committee, and subsequently the Board, concluded that
respondent did not violate this rule because Mr. Chasnoff did not divide the fees
paid to him by Mr. Carter.
5
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.
6
II.
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,”
D.C. Bar R. XI, § 9 (h)(1), but review the Board’s findings of “ultimate fact” (legal
conclusions) de novo, In re J.E.S., 670 A.2d 1343, 1344 (D.C. 1996). We “adopt
the recommended disposition of the Board unless to do so would foster a tendency
toward inconsistent dispositions for comparable conduct or would otherwise be
unwarranted.” D.C. Bar R. XI, § 9 (h)(1). However, attorney discipline and the
imposition of sanctions are ultimately “the responsibility and duty of this court.”
In re Goffe, 641 A.2d 458, 464 (D.C. 1994).
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 practice law
serve a variety of roles and have a range of professional responsibilities. Lawyers
7
have duties and obligations to their clients, D.C. R. Prof’l Conduct 1, ethical
responsibilities to other lawyers, D.C. R. Prof’l Conduct 3.4, and, historically, a
fiduciary relationship to the court, by which they are licensed to practice law, see
Ex Parte Garland, 71 U.S. (4 Wall.) 333, 378 (1866) (“Attorneys and counsellors
are not officers of the United States[;] . . . [t]hey are officers of the court, admitted
as such by its order . . . .”); see also 3 William Blackstone, Commentaries on the
Laws of England 26 (1769) (explaining that attorneys “are admitted to the
execution of their office by the superior courts . . . and are in all points officers of
the respective courts in which they are admitted”). The concept of a lawyer as an
“officer of the court” dates to medieval England in the thirteenth century, when
courts began to regulate the admission of attorneys to the bar and their professional
conduct. James A. Cohen, Lawyer Role, Agency Law, and the Characterization
“Officer of the Court”, 48 Buff. L. Rev. 349, 361 (2000). In the United States, this
concept has evolved to reflect that, in addition to duties owed to his clients, an
attorney has an obligation to the court. 7 C.J.S. Attorney & Client § 3 (2014). By
virtue of the court’s decision to “invest[] the lawyer with a duty-bound office” and
the lawyer’s recitation of the oath of admission, the lawyer is bound to the court.
Deborah M. Hussey Freedland, What Is a Lawyer? A Reconstruction of the Lawyer
as an Officer of the Court, 31 St. Louis U. Pub. L. Rev. 425, 435-36, 438 (2012);
see also Theard v. United States, 354 U.S. 278, 281 (1957); Garland, supra,
8
71 U.S. (4 Wall.) at 378 (“From its entry [i.e., the court’s order of admission] the
parties become officers of the court, and are responsible to it for professional
misconduct.”). An attorney admitted to the District of Columbia Bar is explicitly
given the title “officer of the court” and its accompanying duties. The Rules
Governing the District of Columbia Bar explain that
[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.
D.C. Bar R. XI, § 2 (a).
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
9
when the client retains the attorney, the relationship may also be created by court
appointment. See, e.g., Lieber, supra, 442 A.2d at 156 (citing Powell v. Alabama,
287 U.S. 45, 73 (1932)); see also Super. Ct. R. Civ. P. 101 (a)(3) (requiring pro
hac vice counsel to obtain local counsel who must “at all times be prepared to go
forward with the case” and must sign all documents filed with the court and attend
all proceedings). For certain, the attorney-client relationship does not rest on the
client’s view of the matter; rather, we consider the totality of the circumstances to
determine whether an attorney-client relationship exists. Lieber, supra, 442 A.2d
at 156.
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, respondent represented to the
court, through his filings, that an attorney-client relationship existed.2
2
Cf. Formal Op. No. 2004-165, Cal. State Bar., Standing Comm’n on Prof’l
Responsibility, 2004 WL 3079030, at *5 (2004) (finding that the lawyers
employed by the Court Appearance Service—a service that provides attorneys on
an hourly, contractual basis to “stand in” for a client’s retained attorneys in
hearings, status conferences, depositions, arbitrations, and other matters—
undertake the ethical duties stemming from an attorney-client relationship by
(continued . . .)
10
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 pro hac vice, respondent was
responsible for Mr. Carter’s case in the event that Mr. Chasnoff failed to
adequately pursue it. See Super. Ct. R. Civ. P. 101 (a)(3) (requiring local counsel
to “at all times be prepared to go forward with the case”); Brookens v. Committee
on Unauthorized Practice of Law, 538 A.2d 1120, 1124 (D.C. 1988) (noting that
the pro hac vice rule “‘is not a device to circumvent bar membership requirements
or rules against unauthorized practice’”). By asserting his bar membership to aid
Mr. Chasnoff in presenting Mr. Carter’s claim, respondent, like local counsel,
assumed the ethical responsibilities and duties of Mr. Carter’s attorney. Accord
Fla. Bar v. Stein, 916 So. 2d 774, 776-77 (Fla. 2005) (concluding that an attorney
undertook ethical responsibility for a case pursued by a disbarred attorney
authorizing the disbarred attorney to sign the pleading using her name and bar
number).
_________________________
(. . . continued)
making an appearance on behalf of the retained attorney’s client, regardless of the
fact that the client never intended to retain the Service attorney); Ethics Advisory
Op. 09-11, S.C. Bar Ethics Advisory Comm., 2009 WL 6850299 (2009) (noting
that an attorney may inadvertently create an attorney-client relationship by moving
to dismiss on behalf of another attorney’s client).
11
Because respondent entered into an attorney-client relationship with Mr.
Carter, he was obliged to exercise all ethical duties arising out of that relationship.
We agree with the Board and the Committee that respondent cannot now deny his
professional relationship with Mr. Carter, which he earlier represented to the court
as existing.
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, supra, 641 A.2d at 464. In determining the appropriate sanction,
both the Board and this court consider:
(1) the seriousness of the conduct at issue; (2) the
prejudice, if any, to the client which resulted from the
conduct; (3) whether the conduct involved dishonesty
and/or misappropriation; (4) the presence or absence of
violations of other provisions of the disciplinary rules[;]
(5) whether the attorney had a previous disciplinary
history; (6) whether or not the attorney acknowledged his
or her wrongful conduct; and (7) circumstances in
mitigation of the misconduct.
12
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.
13
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
requirement 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, supra, 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 Committee
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
special need for voir dire here and the Committee, therefore, committed no error in
denying respondent’s request. Moreover, respondent failed to demonstrate any
prejudice from the Committee’s denial of his request. Second, a “mere delay in the
disciplinary process generally does not provide a legitimate ground for dismissal of
the complaint” because “[t]he public interest in regulating members of the bar
14
takes precedence over the attorney’s interest in having claims speedily resolved.”
In re Morrell, 684 A.2d 361, 368 (D.C. 1996). Consequently, the court will not
dismiss a disciplinary proceeding against an attorney solely on speedy trial
grounds. Id. Rather, to warrant dismissal, respondent must show that “delay in the
prosecution of disciplinary charges substantially impaired [his] ability to defend
against the charges.” Id. Respondent does not show prejudice here and is
therefore not entitled to reversal. Third, we agree with the Board and reject
respondent’s argument that the Committee members must be residents of the
District, both because respondent waived this argument by failing to raise it to the
Committee, see In re Daniel, 11 A.3d 291, 297-98 (D.C. 2011), and because the
rules governing the composition of the Committee do not require such residency,
see D.C. Bar R. XI, § 5 (a). Finally, we conclude that the sanction suggested by
the Committee and the Board does not violate respondent’s right to due process
because it is not punitive. An informal admonishment—the most lenient form of
public discipline available in the District—is appropriate because, although
respondent’s case presents several mitigating factors, respondent did violate
several rules of professional conduct. Accordingly, we conclude that respondent
received adequate process.
15
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.