THE FOLLOWING INFORMAL ADMONITION WAS ISSUED BY BAR COUNSEL ON October 26, 2004 BY FIRST-CLASS AND CERTIFIED MAIL NO. 7160 3901 9848 5461 9537 3800 Lynn Regis Court Fairfax, Virginia 22031-3815 Re: In re Bar Docket Nos. 352-00, 353-00, 118-01, & 100-02 Dear Mr. Brown: This office has completed its investigation of the above-referenced matters. We find that your conduct reflected a disregard of certain ethical standards under the District of Columbia Rules of Professional Conduct (the Rules ). We are, therefore, issuing you this Informal Admonition pursuant to D.C. Bar Rule XI, 3, 6, and 8. Based upon our investigation of the above referenced matters, we find that your conduct violated Rules 1.3(c), 1.4(a), and 1.5(b). A. Bar Docket No. 352-00 In or around September 1999, Complainant retained you to represent her in connection with the filing of an Offer in Compromise ( OIC ) with the Internal Revenue Service ( IRS ). You did not file her OIC with the IRS until in or around November 2000. You explain that workload management has been a problem of [yours] and that you have hopefully corrected that by taking in less work. B. Bar Docket No. 353-00 In or around December 1999, Complainant retained you to represent her in
Page 2 connection with the filing of an OIC with the Internal Revenue Service ( IRS ). 1/ You did not provide the client with a writing setting forth the rate and basis of your legal fees. Further, you did not communicate with her from December 1999 to September 2000. In your response to the ethical complaint, you state that you had a problem with workload management and that you have taken on less work in order to rectify this problem. C. Bar Docket No. 118-01 In or around October 1999, Complainant retained you to represent her in connection with the filing of an OIC with the IRS. You also failed to provide her with a writing setting forth the rate and basis of your legal fees. You did not communicate with your client from October 1999 to April 2000. 2/ In your response to the ethical complaint, you suggest that your lack of communication with your client was the product of your need to react to the priorities of various other clients. D. Bar Docket No. 100-02 In or around November 1997, Complainant retained you to represent him in an OIC matter before the IRS. You also failed to provide the client with a writing setting forth the rate and basis of your legal fees. You failed to communicate with him for a period of five years, between 1997 and 2002. 3/ 1/ Complainant reports that she discharged you as her attorney on or about September 20, 2000. 2/ On or about February 15, 2001, the client terminated your services because you had not successfully completed the OIC. We credit your representation that you originally filed the client s OIC with an IRS Service Center, that you have no knowledge of why it was not processed, that you subsequently re-filed the OIC and that you no longer forward OICs to the IRS Service Centers. Consequently, we do not find clear and convincing evidence that your conduct violated any other Rules. 3/ We note that you developed an extensive case file in connection with your representation of the client in the filing of his OIC, which included references to several communications between you and an IRS officer. Consequently, we do not find that you
Page 3 In your response to the ethical complaint, you acknowledge that you were not in contact with your client for several years and that on or about September 26, 2002, you refunded the retainer fee the client paid to you. 1. Rule 1.3(c) provides that [a] lawyer shall act with reasonable promptness in representing a client. Comment [7] to the Rule provides: Perhaps no professional shortcoming is more widely resented by clients than procrastination. A client s interests often can be adversely affected by the passage of time or change of conditions; in extreme instances as when a lawyer overlooks a statute of limitations, the client s legal position may be destroyed. Even when the client s interests are not affected in substance, however, unreasonable delay can cause the client needless anxiety and undermine confidence in the lawyer s trustworthiness. Neglect of client matters is a serious violation. Based upon our investigation, we find that you failed to act with reasonable promptness in representing the interests of your clients in Bar Docket Nos. 100-02 and 352-00 in connection with their OICs with the IRS. 2. Rule 1.4(a) provides that [a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 4/ Based upon our investigation, we find that you failed to communicate with neglected the client s matter. 4/ Comment [2] to Rule 1.4 provides pertinently that: A client is entitled to whatever information the client wishes about all aspects of the subject matter of the representation unless the client expressly consents not to have certain information passed on.... The lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete. [Emphasis added.] Comment [3] to Rule 1.4 provides: Adequacy of communication depends in part on the kind of advice or assistance involved. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with (1) the duty
Page 4 your clients in Bar Docket Nos. 353-00, 118-01, and 100-02. 3. Rule 1.5(b) provides pertinently [w]hen a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. Based upon our investigation, we find that you failed to provide your clients in Bar Docket Nos. 353-00, 118-01, and 100-02 a writing setting forth the rate and basis of your legal fees. 5/ In deciding to issue you this Informal Admonition, we have taken into account that you cooperated with our investigation, that you have taken substantial steps to remedy the problems that gave rise to these complaints, that your misconduct occurred during the same general period of time prior to the filing of the first complaint, and that your conduct does not involve dishonesty. We have also considered, in mitigation, that at the time these complaints were generated, you had recently retired from your job as a government attorney and opened your own practice as a sole practitioner. We have credited your representation that the misconduct in these matters was the product of workload management issues. We further credit your representation that since the time of the misconduct in these matters, you have hired two associates to assist with the management of your caseload and that you now provide all of your clients with a writing which sets forth the rate and basis of your legal fees. 6/ We also note that during the period you were not communicating with your clients, you were nonetheless performing tasks on behalf of the clients necessary to the filing, or preparation for filing, of OICs with the IRS, including conducting legal research and drafting memoranda. Finally, your client in Bar Docket No. 100-02 confirms that you have refunded the legal fees he paid to you, and we credit your representation that you are willing to refund the fees paid to you by the other clients. To the extent that you and your clients disagree about the amount of the refund to which they are entitled, we refer them to the District of Columbia Bar s Attorney-Client to act in client s best interests, and (2) the client s overall requirements and objectives as to the character of representation. 5/ We note that in Bar Docket No. 352-00, where we do not find a violation of Rule 1.5(b), your e-mail correspondence with your client technically satisfied your obligation under this Rule. 6/ We further note that we have not found you to have engaged in similar misconduct since our investigation of these matters.
Arbitration Board ( ACAB ), which attempts to resolve fee disputes amicably between attorneys and their clients. By copies of this letter, we are providing your clients ACAB application materials for their reference. This letter constitutes an Informal Admonition pursuant to D.C. Bar Rule XI, 3, 6, and 8, and is public when issued. Please refer to the attachment to this letter of Informal Admonition for a statement of its effect and your right to have it vacated and have a formal hearing before a Hearing Committee. If you would like to have a formal hearing, you must submit a written request for a hearing within 14 days of the date of this letter to the Office of Bar Counsel, with a copy to the Board on Professional Responsibility, unless Bar Counsel grants an extension of time. If a hearing is requested, this Informal Admonition will be vacated, and Bar Counsel will institute formal charges pursuant to D.C. Bar Rule XI, 8(b). The case will then be assigned to a Hearing Committee, and a hearing will be scheduled by the Executive Attorney for the Board on Professional Responsibility pursuant to D.C. Bar Rule XI, 8(c). Such a hearing could result in a recommendation to dismiss the charges against you or a recommendation for a finding of culpability, in which case the sanction recommended by the Hearing Committee is not limited to an Informal Admonition. Sincerely, JEP:SLM:HCS:cms Joyce E. Peters Bar Counsel Enclosure: Attachment to Letter of Informal Admonition cc (w/o Encl.): The Complainants (w/enclosed ACAB materials)