ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: SATRICA WILLIAMS-BENSAADAT NUMBER: 12-DB-046

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1 ORIGINAL LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: SATRICA WILLIAMS-BENSAADAT NUMBER: 12-DB-046 RULING OF THE LOUISIANA ATTORNEY DISCIPLINARY BOARD 12-DB-046 7/27/2015 INTRODUCTION This is a disciplinary matter based upon the filing of formal charges by the Office of Disciplinary Counsel ( ODC ) against Satrica Williams-Bensaadat ( Respondent ), Louisiana Bar Roll Number The charges, which consist of one count, allege violations of the following Rules of Professional Conduct ( Rule(s) ): Rule 1.2 (failing to abide by a client's decision to settle a matter); Rule 1.4(a)(1) (failing to promptly inform the client of any decision or circumstances with respect to which the client's informed consent is required); Rule 1.15(e) (failing to keep separate the property in which two or more persons claim an interest until the dispute is resolved and failing to promptly distribute all portions of the property as to which the interests are not in dispute); Rule 1.16(d) (failing to protect a client's interest upon termination of representation and failing to return a client file upon receipt of written request for same); Rule 3.1 (bringing a frivolous action without a basis in law or fact); Rule 4.2(a) (communicating or attempting to communicate with a person known to be represented by another lawyer); Rule 8.1(a) (knowingly making a false statement of material fact in a disciplinary proceeding); Rule 8.4(a) (engaging in conduct which violates or attempts to violate the Rules of Professional Conduct); and Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). 1 The Hearing Committee assigned to this matter concluded that Respondent 1 The text of the Rules is contained in the attached Appendix. 1

2 violated the Rules as alleged with the exception of Rules 1.2 and 1.4(a)(1). As a sanction, the Committee recommended that Respondent receive a public reprimand, be suspended from the practice of law for six months, fully deferred, and serve a one-year period of probation subject to certain conditions. For the following reasons, the Board adopts the factual findings of the Hearing Committee with one exception. However, the Board rejects the Rule violations found by the Committee with the exception of Rule 1.16(d). As a sanction, the Board orders that Respondent be publicly reprimanded for her actions. pertinent part: PROCEDURAL HISTORY ODC filed the formal charges in this matter on June 20, The charges read, in Complainant, Shakeitha Haney, hired Respondent to represent her in a personal injury matter. Respondent and Complainant executed a contingency fee contract. Before the case was settled, Complainant terminated Respondent because Complainant believed that Respondent had performed very little, if any, work on the matter and had made counter offers to settle the matter without Complainant's authority. Complainant hired Cle Simon of Simon Law Offices to represent her who settled the case. Mr. Simon contacted Respondent to determine whether Respondent was willing to compromise on any fees she claimed were owed to her as Mr. Simon believed that Respondent was terminated for cause. Mr. Simon is representing Complainant pro bono. Mr. Simon asserts that Respondent was rude and obnoxious in her communications with his office. Upon receipt of the settlement check, Mr. Simon forwarded it to Respondent for endorsement. Mr. Simon clearly communicated to Respondent that he intended to deposit the disputed attorney's fees in the registry of the court in a concursus proceeding. Respondent claims she was unaware of this, but Mr. Simon states that he discussed the disputed fees and the concursus proceeding with her at least two times and provided a copy of correspondence dated February 11, 2011, that he sent to her explaining his intentions regarding the disputed attorney's fees. Respondent refused to endorse the check and initially refused to return the check to Mr. Simon. Mr. Simon then sent correspondence to Respondent informing her that Rule 1.5 of the Rules of Professional Conduct prohibits the taking of an unearned fee and that Respondent would be sued for conversion if she did not return the check. In this correspondence, Mr. Simon again conveyed to Respondent that the disputed attorney's fees would be deposited in the registry of 2

3 the court along with a petition for concursus. Respondent refused to endorse the check but did return it on March 7, Respondent also sent correspondence directly to Complainant dated March 18, 2011, demanding payment of her attorney's fees. When Complainant terminated Respondent, Respondent had negotiated a settlement for $18, Mr. Simon was able to settle the matter for $20, Respondent made demand for payment based on the $20, In her written response to the complaint in this matter, Respondent states that the letter attached to the complaint was sent to Mr. Simon and not to Complainant directly. Mr. Simon provided documentation to the Office of Disciplinary Counsel which he obtained from the United States Postal Service indicating that Respondent sent this letter directly to Complainant via certified mail even though Respondent knew that Complainant was represented by Mr. Simon. Complainant never received the certified letter because Respondent mailed it to an incorrect address, and said certified mail was returned to Respondent by the United States Postal Service. Respondent mailed the letter to 1410 Common Street, rather than 1410 Commercial Street, Lot B. In her response, Respondent informed ODC that she did not mail correspondence to Complainant when she was represented by Mr. Simon. Instead, Respondent claims she addressed the letter to Complainant then crossed out Complainant's name and mailed the letter to Mr. Simon. The ODC's investigation into this matter verified that Respondent attempted to mail correspondence directly to Complainant while she was represented by Mr. Simon, but the correspondence was returned as non-deliverable because Respondent incorrectly addressed the letter. On April 21, 2011, Respondent filed a civil action against Complainant to collect her attorney's fees in the initial personal injury action which includes a request for additional attorney's fees, interest, and costs. Respondent's actions in this matter constitute failing to abide by a client's decision to settle a matter, in violation of Rule 1.2; failing to promptly inform the client of any decision or circumstances with respect to which the client's informed consent, as defined in Rule l.0(e), is required by these Rules, in violation of Rule 1.4(a)(l); failing to keep separate the property in which two or more persons claim an interest (one of whom may be the lawyer) until the dispute is resolved and failing to promptly distribute all portions of the property as to which the interests are not in dispute, in violation of Rule 1.15(e); failing to protect a client's interest upon termination of representation and failure to return a client file upon receipt of written request for same in violation of Rule 1.16(d); bringing a frivolous action against Complainant without a basis in law or fact, in violation of 3.1; communicating or attempting to communicate with a person known to be represented by another lawyer, in violation of Rule 4.2(a); knowingly making a false statement of material fact in a disciplinary proceeding, in violation of Rule 8.1(a); engaging in conduct which violates or attempts to violate the Rules of Professional Conduct, in violation of Rule 8.4(a); and, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Rules of Professional Conduct. 3

4 Leslie J. Schiff enrolled as counsel for Respondent on July 2, 2012, and filed an answer on her behalf on July 5, In her answer, Respondent denied violating the Rules of Professional Conduct. This matter was continued without date on December 7, On August 20, 2014, ODC filed a motion to reset the hearing of this matter and for a status conference. The motion was granted on August 25, 2014, and the hearing was reset for October 10, 2014, before Hearing Committee Number 31 ( the Committee ). 2 The parties filed their pre-hearing memoranda on September 29, The hearing of this matter was held as scheduled on October 10, Deputy Disciplinary Counsel Tammy Pruet Northrup appeared on behalf of ODC. Leslie J. Schiff appeared on behalf of Respondent. The Committee heard the testimony of Respondent, Clé Simon (attorney for Complainant, Shakeitha Haney), Shakeitha Haney (Complainant), and Suzanne Chaney (legal assistant at ODC). The Committee also received into evidence ODC Exhibits 1-7 and Respondent Exhibits Also, on October 24, 2014, the parties filed a stipulated timeline of events regarding the underlying facts of this matter. Respondent and ODC filed post-hearing memoranda on October 27 and 30, 2014, respectively. The Committee made the following factual findings: The Committee finds, after due consideration of the evidence that all of the facts alleged in the Formal Charges above were proven except the allegation that Respondent made counter offers to settle Complainant's claim without Complainant's authority. Most troubling are the findings that Respondent: 1. Refused to endorse or even return the Complainant s settlement check; 2. Sent a demand letter directly to Complainant threatening to sue her for fees knowing she was represented by other counsel; 3. Denied doing so to the ODC; 4. Denied doing so at the hearing despite clear evidence to the contrary; 2 The Committee was composed of John R. Pohorelsky (Chairman), Cary Vercher (Lawyer Member), and Richard Allen Hinton (Public member). 4

5 5. Actually sued Complainant rather than invoke a concursus proceeding thus depriving Complainant of the balance of her recovery which was not disputed; 6. Demanded more fees than she was contractually entitled to receive. Hearing Committee Report, p. 5. The Committee did not find any mitigating factors and recognized only one aggravating factor: prior disciplinary offenses. As a sanction, the Committee recommended that Respondent: 1. Receive a public reprimand; 2. Be suspended from the practice of law for six months, deferred; 3. Be placed on probation for a period of one year; 4. Be required to attend the Louisiana State Bar Association's Ethics School program and an additional hour of continuing legal education devoted to professionalism for two years, all at Respondent's cost; and 5. Pay the costs associated with these proceedings. Hearing Committee Report, p. 7. On February 11, 2015, ODC filed an objection to the Committee s recommended sanction, stating it is too lenient. On February 25, 2015, Respondent filed an objection to the Committee s report alleging the six month suspension is too severe and certain factual errors. However, Respondent concurred that a public reprimand is a reasonable sanction. This matter was initially scheduled for oral argument on April 16, However, it was continued upon the unopposed motion of ODC. Oral argument was held on May 21, 2015, before Board Panel A. 3 Deputy Disciplinary Counsel Tammy Pruet Northrup appeared on behalf of ODC. Leslie J. Schiff appeared on behalf of Respondent. ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is to perform appellate review 3 Board Panel A was composed of Carl A. Butler (Chairman), Dominick Scandurro, Jr. (Lawyer Member), and Evans C. Spiceland, Jr. (Public Member). 5

6 functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as the Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry The limited factual findings of the Committee do not appear to be manifestly erroneous with one exception. The Committee found that Respondent sent a letter to Ms. Haney about the fee dispute while she was represented by Mr. Simon. The Committee also found that Respondent denied doing so. This last finding is erroneous. In her initial response to the complaint, Respondent stated that she sent the letter to Mr. Simon, not Ms. Haney. 4 See ODC Exhibit 2. At the hearing, Respondent further testified that if the letter went to Ms. Haney without going to Mr. Simon, it was in error. See Transcript, pp Thus, the record does not demonstrate that Respondent denied sending the letter to Ms. Haney. Rather, the record indicates that the failure to send Mr. Simon a copy of the letter was an error. The remaining findings of the Committee are supported by the record. 4 The bottom of the letter clearly indicates there was an attempt to copy Mr. Simon on the letter. See ODC Exhibit 1. 6

7 B. De Novo Review The Committee correctly concluded that Respondent violated Rule 1.16(d) and did not violate Rules 1.2 and 1.4(a)(1). 5 However, the record does not support the conclusion that Respondent violates Rules 1.15(e), 3.1, 8.1(a), 8.4(a), and 8.4(c). Each Rule is discussed below. Rule 1.16(d): Rule 1.16(d) states that a lawyer shall take steps to the extent reasonably practicable to protect a client s interests upon termination of representation. Here, Respondent s actions caused an unnecessary delay in Ms. Haney receiving her settlement funds. Mr. Simon settled the matter for Ms. Haney on or about February 17, Respondent s endorsement was required on the settlement check because she had asserted a lien on the matter to protect her attorney fees. Respondent refused to endorse the check for several months, which prevented Ms. Haney from receiving her funds in a prompt manner. Ms. Haney did not receive her funds until August of Respondent s refusal to endorse the check was an attempt to protect her attorney fees. However, Respondent could have protected her fees and still allowed the undisputed portion of the settlement to be disbursed to Ms. Haney. Accordingly, the record supports the conclusion that Respondent failed to protect her client s interests upon termination of representation, in violation of Rule 1.16(d). 7 Rule 4.2(a): Rule 4.2(a) states that a lawyer, in representing a client, shall not communicate about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter. Here, there is conflicting evidence in the record as to whether 5 The Committee did not specifically list the Rules that it concluded were violated. Rather, the Committee merely stated, The Committee finds that all of the facts alleged in the Formal Charges above were proven except the allegation that Respondent made counter offers to settle Complainant's claim without Complainant's authority. Hearing Committee Report, p. 5. This statement suggests the Committee found that Respondent violated Rules 1.15(e), 1.16(d), 3.1, 4.2(a), 8.1(a), 8.4(a), and 8.4(c), but not Rules 1.2 and 1.4(a)(1). 6 The settlement check was issued on February 17, 2011, by Scottsdale Insurance Company. See ODC Exhibit 1. 7 The formal charges also allege that Respondent violated Rule 1.16(d) by failing to return a client file upon receipt of written request for same Formal Charges, p. 3. However, there is no allegation in the formal charges or in the record that Respondent failed to return Ms. Haney s file upon termination of the representation. 7

8 Respondent communicated or attempted to communicate with Ms. Haney while she was represented by counsel. However, the record clearly indicates that Respondent at least attempted to send Ms. Haney s attorney, Mr. Simon, a copy of the letter. See ODC Exhibit 1. In her initial response to the complaint, Respondent stated that she did not send the letter to Ms. Haney. Rather, she sent it to Mr. Simon. See ODC Exhibit 2. At the hearing, Respondent testified that if the letter went to Ms. Haney without going to Mr. Simon, it was in error. See Transcript, pp Respondent also testified that she knew Ms. Haney was represented by Mr. Simon at the time the letter was sent. Id. at 46. These facts do not appear to rise to the level of a violation of Rule 4.2(a). Rather, it appears, at most, a mailing error occurred in Respondent s office. Accordingly, the Board finds that Respondent did not violate Rule 4.2(a). Rules 8.1(a) and 8.4(c): Rule 8.1(a) states, in pertinent part, that a lawyer shall not make a knowingly false statement of material fact in connection with a disciplinary matter. Rule 8.4(c) states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Here, as discussed above, the record does not demonstrate that Respondent was dishonest regarding the direct communication or attempted communication with Ms. Haney. Rather, at most, there was an error in transmitting the letter in question. Accordingly, the Board finds that Respondent did not violate Rules 8.1(a) and 8.4(c). Rules 1.2 and 1.4(a)(1): Rule 1.2(a) states that a lawyer shall abide by a client s decisions concerning the objectives of the representation and shall consult with the client as to the means by which they are to be pursued. Rule 1.4(a)(1) states that a lawyer shall promptly inform a client of any decision with respect to which the client s informed consent is required. Here, ODC alleges that Respondent made offers to settle Ms. Haney s personal injury matter without 8

9 her consent. The Committee found this allegation was not proven by clear and convincing evidence. The Committee s conclusion is supported by the record. Rule 1.15(e): Rule 1.15(e) states that when a lawyer is in possession of property in which two or more persons claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The Rule also states that a lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. Here, ODC alleges and the Committee found that Respondent violated this Rule. However, this Rule is inapplicable to the facts of this matter. Respondent was briefly in possession of the settlement check, during which time she kept the check separate from her own funds and property. This is evidenced by the fact that Respondent returned the original settlement check to Mr. Simon on March 7, See ODC Exhibit 1. Additionally, while Respondent s conduct prevented the prompt disbursement of the undisputed settlement funds, it was not her obligation to disburse the funds as she was not the attorney for Ms. Haney at the time of settlement. It was Mr. Simon s obligation, as attorney for Ms. Haney, to disburse the funds. Thus, Rule 1.15(e) is inapplicable to the facts of this matter and was not violated by Respondent. Rule 3.1: Rule 3.1 states, in pertinent part, that a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. Here, ODC alleges and the Committee found that Respondent s filing of the April 21, 2011 lawsuit to recover her attorney fees was frivolous. This conclusion is erroneous. When the fee dispute initially arose, Mr. Simon attempted to resolve the issue by depositing the money in the court registry and initiating a concursus proceeding. However, Respondent s refusal to endorse the check prevented Mr. Simon from doing so. Respondent claimed that her refusal was based on Mr. Simon s failure to follow the proper procedure regarding the concursus. See 9

10 Transcript, p. 38; see also ODC Exhibit 1 (Respondent s March 7, 2011 letter to Mr. Simon). In the alternative, Respondent attempted to initiate an arbitration of the fee with the Louisiana State Bar Association s Lawyer Fee Dispute Resolution Program. Respondent Exhibit 5. However, Mr. Simon refused to participate in the arbitration. See Respondent Exhibits 6 & 8. Upon receiving notice from Mr. Simon that he would not participate in the fee arbitration on April 20, 2011, Respondent filed a lawsuit against Ms. Haney for the attorney fees on April 21, See Respondent Exhibits 6 & 11. Thus, there was no proceeding that addressed the fee dispute pending at the time Respondent filed the lawsuit for fees on April 21, Respondent had a basis in law and fact that was not frivolous to file the lawsuit. Had a concursus or arbitration been pending at the time of the filing, it could be argued that the lawsuit was frivolous. However, that is not the case. While the lawsuit was not the most efficient solution to the fee dispute and contributed to the delay in disbursing the funds, the lawsuit was not frivolous within the scope of Rule 3.1. Accordingly, the Board finds that Respondent did not violate Rule 3.1 in this matter. Rule 8.4(a): Rule 8.4(a) states that it is professional misconduct to violate or attempt to violate the Rules of Professional Conduct. Here, the record does not indicate that Respondent intentionally attempted to violate the Rules. Rather, she unintentionally prolonged a fee dispute to the detriment of a former client. Thus, the Board finds that Respondent did not violate Rule 8.4(a). 8 The LSBA rejected Respondent s arbitration request based upon the pending lawsuit. However, Mr. Simon had already communicated his intent to not participate in the arbitration before Respondent filed the lawsuit. 10

11 II. The Appropriate Sanction A. Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, 10(C) states that when imposing a sanction after a finding of lawyer misconduct, the Court or Board shall consider the following factors: 1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer s misconduct; and 4. the existence of any aggravating or mitigating factors. Here, Respondent knowingly violated a duty owed to her former client. Her misconduct caused harm to Ms. Haney by delaying the disbursement of the settlement funds by several months. However, the extent of the harm does not appear to be significant. The only aggravating factor supported by the record is Respondent s prior disciplinary offense. 9 In mitigation, Respondent lacked a dishonest or selfish motive and was cooperative during this proceeding. B. The ABA Standards and Case Law The ABA Standards for Imposing Lawyers Sanctions suggests suspension is the baseline sanction in this matter. Standard 4.12 states, Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. While this Standard does not fit squarely with the facts of this matter, Respondent knowingly delayed the disbursement of the settlement funds to her former client, which resulted in harm. Thus, the baseline sanction is suspension. However, given 9 On September 14, 2007, Respondent received a public reprimand by consent for failing to competently represent her clients, neglecting legal matters, failing to communicate with her clients, engaging in conduct constituting a conflict of interest, and allowing her clients' cases to prescribe, which constituted violations of Rules 1.1(a), 1.2, 1.3, 1.4, 1.9, and 1.16(d). In re Williams-Bensaadat, (La. 9/14/07), 964 So.2d

12 Respondent s lack of a dishonest motive and the unique facts in this case, the Board will deviate downward to a public reprimand. There is little case law that is closely analogous to the unique facts of this matter. Given that Respondent s actions delayed the disbursement of funds to Ms. Haney, this matter can be analogized to cases involving a failure to return unearned fees and failure to protect disputed fees. The Court has observed that cases principally involving a failure to account for and return unearned fees to one client has resulted in sanctions ranging from public reprimand to suspension. In re Hall, (La. 6/18/04), 876 So.2d 47, 51. In In re Jones, the Court publicly reprimanded Mr. Jones for charging an excessive fee and, subsequently, disbursing the settlement funds despite his client s objection, thereby failing to protect the disputed funds (La. 9/19/08), 990 So.2d 731. Mr. Jones did not place the disputed funds in the court registry until several months after the dispute arose and after the client filed a complaint with ODC. The following aggravating factors were present: a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law. The following mitigating factor was present: absence of a disciplinary history. In In re Donald, the Court suspended Mr. Donald for six months, fully deferred subject to a one-year period of supervised probation, for collecting a $600 fee from a client to cancel a judgment then failing to complete the task (La. 11/1/13), 127 So.3d 918. Mr. Donald ignored his clients request for a refund. The Court found that his conduct was knowing, and possibly intentional. The following aggravating factors were present: a prior disciplinary record (diversion), a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. The following mitigating factors were present: personal or emotional problems, full and free 12

13 disclosure to the disciplinary board and a cooperative attitude toward the proceeding, and remoteness of the prior disciplinary offense. In In re Gaston, the Court suspended Ms. Gaston for six months, fully deferred subject to a two-year period of probation, for failing to return unearned fees in two client matters (La. 7/1/11), 65 So.3d In aggravation, the Court recognized Ms. Gaston s indifference to making restitution. However, in mitigation, the Court noted the following factors: personal or emotional problems, absence of a disciplinary record, and inexperience in the practice of law. Here, the facts of this matter are less egregious than the cases discussed above. All of the cases involved more extensive misconduct than is present in this matter. The Jones and Donald matters also contain several more aggravating factors than are present here. Given the unique facts of this matter and the case law, a public reprimand appears to be appropriate. CONCLUSION The Board adopts the factual findings of the Committee with the exception discussed above. The Board concludes that Respondent violated Rule 1.16(d), but did not violate the remaining Rules alleged in the formal charges. With regard to the sanction, the Board finds that a public reprimand adequately addresses the misconduct. 13

14 RULING Considering the foregoing, the Board orders that Respondent, Satrica Williams- Bensaadat, be publicly reprimanded. The Board also orders that Respondent be assessed with the costs and expenses of this matter. LOIDSIANA ATTORNEY DISCIPLINARY BOARD George L. Crain, Jr. Anderson 0. Dotson, III Carrie L. Jones Edwin G. Preis, Jr. Dominick Scandurro, Jr. R. Lewis Smith, Jr. Evans C. Spiceland, Jr. Walter D. White BY: Carl A. Butler FOR THE ADJUDICATIVE COMMITTEE 14

15 APPENDIX RULE 1.2. SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to the provisions of Rule 1.16 and to paragraphs (c) and (d) of this Rule, a lawyer shall abide by a client s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer s representation of a client, including representation by appointment, does not constitute an endorsement of the client s political, religious, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. RULE 1.4. COMMUNICATION (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules; RULE SAFEKEEPING PROPERTY (e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. RULE DECLINING OR TERMINATING REPRESENTATION (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. Upon written request by the client, the lawyer shall promptly release to the client or the client s new lawyer the entire file relating to the matter. The lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason. The responsibility for the cost of copying shall be determined in an appropriate proceeding. 15

16 RULE 3.1. MERITORIOUS CLAIMS AND CONTENTIONS A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. RULE 4.2. COMMUNICATION WITH PERSONS REPRESENTED BY COUNSEL Unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order, a lawyer in representing a client shall not communicate about the subject of the representation with: (a) a person the lawyer knows to be represented by another lawyer in the matter; RULE 8.1. BAR ADMISSION AND DISCIPLINARY MATTERS An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) Knowingly make a false statement of material fact; RULE 8.4. MISCONDUCT It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 16