In re Wagner

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 24-BG-0248

IN RE BRENDA C. WAGNER, RESPONDENT.

A Member of the Bar

of the District of Columbia Court of Appeals

(Bar Registration No. 267385)

On Report and Recommendation

of the Board on Professional Responsibility

(BDN: 20-BD-059; DDN: 2016-D082)

(Submitted May 1, 2025 Decided September 4, 2025)

Johnny M. Howard for respondent.

Theodore (Jack) Metzler, Senior Assistant Disciplinary Counsel, and

Hamilton P. Fox, III, Disciplinary Counsel, for the Office of Disciplinary Counsel.

Before BECKWITH, EASTERLY, and MCLEESE, Associate Judges.

PER CURIAM: The Board on Professional Responsibility concluded that

respondent Brenda C. Wagner violated D.C. R. Pro. Conduct 4.2(a) by knowingly

communicating with a represented party in a matter without the consent of the

party’s lawyer. The Board recommends that Ms. Wagner be publicly censured by

this court. We agree with the Board’s conclusion and adopt the Board’s

recommended sanction.

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I. Factual and Procedural Background

R. 4.2(a) provides that,

[d]uring the course of representing a client, a lawyer shall

not communicate or cause another to communicate about

the subject of the representation with a person known to

be represented by another lawyer in the matter, unless the

lawyer has the prior consent of the lawyer representing

such other person or is authorized by law or a court order

to do so.

A. The Hearing Committee’s Initial Report and Recommendation

After an evidentiary hearing, the Hearing Committee found that the Office of

Disciplinary Counsel (ODC) had not met its burden of proving by clear and

convincing evidence that Ms. Wagner violated R. 4.2(a). The Hearing Committee’s

findings and conclusions included the following.

Following a petition from Adult Protective Services in August 2015, the trial

court appointed Mr. Richard Tappan, Esq., as guardian and conservator for M.D., a

man who was diagnosed with diabetes, hypertension, high cholesterol, and

delusional disorder. The trial court appointed Brett E. Cohen, Esq., as counsel for

M.D. in September 2015. The petition stated that M.D.’s “cognitive functioning is

impaired due to mental health issues and as a result, he is not able to handle his

finances, living arrangements, or medical care.” The petition also stated that

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although M.D.’s brothers had assisted him in the past, M.D. was now suspicious of

them and believed that they were trying to exploit him. M.D. believed his brothers

wanted M.D.’s house.

Following a hearing on September 30, 2015, the court docket for the M.D.

matter contained multiple entries about the hearing. The entry at the top of the list

of entries for September 30, 2015, stated that Mr. Cohen had been dismissed as the

attorney for M.D. A more detailed entry, which appeared below the first entry,

described the proceedings and indicated that Mr. Cohen would remain in place as

M.D.’s attorney until the continued status hearing date in April 2016. The court also

issued a written order on September 30, 2015, that referred to Mr. Cohen as M.D.’s

attorney.

Mr. Tappan moved M.D. to an assisted-living facility in or around March

2016. Mr. Cohen visited M.D. at the facility that month. Mr. Tappan subsequently

began disposing of the contents of M.D.’s home without filing an itemized inventory

or appraisal of M.D.’s belongings. When M.D.’s brothers learned of this they

attempted unsuccessfully to call Mr. Tappan. In the interim, M.D.’s brothers asked

Ms. Wagner, who was M.D.’s former next-door neighbor, to assist with contacting

Mr. Tappan. Ms. Wagner was able to contact Mr. Tappan, but Mr. Tappan declined

to share M.D.’s location or allow the brothers to speak with M.D. without first

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receiving M.D.’s consent. While Ms. Wagner waited to hear back from Mr. Tappan,

the brothers located M.D. and asked Ms. Wagner to visit M.D. to determine how he

was doing and whether he knew the house was being cleared out.

The brothers retained Ms. Wagner on April 5, 2016, to file petitions for them

to participate in the proceedings and to file a petition to remove Mr. Tappan as

conservator and guardian. On April 8, 2016, without seeking or obtaining consent

from Mr. Cohen, Ms. Wagner visited M.D. at the assisted-living facility and

discussed with him the removal of Mr. Tappan as conservator and guardian.

According to Ms. Wagner, she was unaware at that time that M.D. was represented

by Mr. Cohen. Based on her past experience, Ms. Wagner understood that in

guardianship proceedings, the appointment of counsel for a ward is typically

terminated after the completion of the intervention hearing.

Ms. Wagner visited M.D. again on April 10, 2016, without seeking or

obtaining consent from Mr. Cohen. M.D. informed Ms. Wagner that he wanted to

remain in his home with assistance. After learning that Mr. Tappan had disposed of

his personal belongings, M.D. indicated that he wanted the return of his property or

he wanted damages. Both M.D. and his brothers now wanted Mr. Tappan’s

appointment as M.D.’s court-appointed fiduciary to be terminated.

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At some point before the April 11, 2016, status hearing, Mr. Tappan learned

that Ms. Wagner had visited M.D. Mr. Tappan testified that he told Ms. Wagner to

stop visiting M.D.

After speaking with M.D. on April 10, Ms. Wagner prepared a petition to

terminate Mr. Tappan’s fiduciary appointments. On the day of the April 11, 2016,

hearing, Ms. Wagner handed Mr. Tappan a copy of the petition, which did not

include Mr. Cohen’s name. While Ms. Wagner was speaking with Mr. Tappan, Mr.

Cohen introduced himself and said he was the court-appointed attorney for M.D.

Ms. Wagner “challenged whether M.D. had counsel” and asked Mr. Cohen to

provide her with a copy of the order appointing him. Mr. Cohen said that he would

provide such an order, but he never did so.

During the hearing, Mr. Cohen identified himself as M.D.’s attorney and the

trial court addressed Mr. Cohen as counsel for M.D. Ms. Wagner at that point

credited Mr. Cohen’s representation that he was M.D.’s attorney, subject to

verification. Ms. Wagner also informed the court during the hearing that she was

appearing for M.D.’s brothers and would be filing petitions to participate in the

proceedings and to terminate Mr. Tappan’s appointment. Finally, the trial court

scheduled a subsequent hearing for May 19, 2016, and asked Mr. Cohen if he would

be available to attend.

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After the hearing, Ms. Wagner went to the Clerk’s Office and reviewed the

docket for the case. Based on that review, Ms. Wagner concluded that Mr. Cohen

had been dismissed as counsel for M.D. and that there was no order designating Mr.

Cohen as M.D.’s counsel. When Ms. Wagner filed petitions for permission to

participate in the probate proceedings, the certificates of service identified Mr.

Cohen as a lawyer but did not identify Mr. Cohen as M.D.’s counsel. On April 13,

2016, Ms. Wagner served M.D., Mr. Tappan, and Mr. Cohen with the petition to

terminate; the petition’s certificate of service identified Mr. Cohen as “Attorney of

Record for the Ward.” A proposed order for the court’s appointment of an attorney

for M.D. was included with the petition.

On April 16, 2016, Ms. Wagner visited M.D. at the assisted-living facility for

what she described as a social call. She identified herself to facility staff as M.D.’s

neighbor, not the lawyer for M.D.’s brothers. During the visit, Ms. Wagner brought

the petitions to participate and to terminate Mr. Tappan’s status as guardian and read

them to M.D. “line by line.” Ms. Wagner also took notes during the meeting,

recording details about M.D.’s medical history and experiences at the facility. She

also created a partial inventory of personal property that was inside M.D.’s home,

including M.D.’s estimations as to the value of some of the items. Ms. Wagner did

not seek or obtain consent from Mr. Cohen for this visit.

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Ms. Wagner again visited M.D. without seeking or obtaining Mr. Cohen’s

consent on May 4, 2016. Unprompted, M.D. informed Ms. Wagner of an upcoming

hearing in the matter and expressed dissatisfaction with the removal of items from

his home and concerns about returning to live in his house.

At some point following the April 11, 2016, hearing, Mr. Tappan called Mr.

Cohen to inform him that Ms. Wagner had visited M.D. without Mr. Cohen’s

knowledge or consent. Mr. Cohen visited M.D. to confirm that Ms. Wagner had

visited M.D. previously. Mr. Cohen then sent a letter to Ms. Wagner stating that he

had learned that Ms. Wagner had met with M.D. at least once after the April 11,

2016, hearing, and that Ms. Wagner “never asked, and [Mr. Cohen] never granted,

[Ms. Wagner] permission to speak to [M.D.]” Mr. Cohen also demanded that Ms.

Wagner stop speaking with M.D. and that she provide Mr. Cohen with any work

product from her visits with M.D. Ms. Wagner answered Mr. Cohen via email

stating, “the record in the case clearly indicates that you are no longer [M.D.’s]

attorney. It is not necessary that I solicit your consent to speak with [M.D.]”

In May 2016, Mr. Cohen filed a motion to strike Ms. Wagner’s appearance,

stating that Ms. Wagner should be removed because she was representing the

interests of M.D.’s brothers, whose interests diverged from M.D.’s interests. Ms.

Wagner responded to Mr. Cohen’s motion to strike her appearance by arguing that

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Mr. Cohen did not “currently have an order of appointment” and that there was no

such court order on the docket, pointing to D.C. Super. Ct. Prob. R. 305(c), which

states, “[t]he appearance of counsel for the subject of an intervention proceeding

shall terminate upon the disposition of the petition for which counsel’s appearance

was entered, unless otherwise ordered by the Court.” Ms. Wagner also filed an

amendment to the petition for Mr. Tappan’s termination that incorporated

information that Ms. Wagner obtained from her interview with M.D. on April 16,

2016.

On June 1, 2016, the trial court held a hearing to discuss the motion to strike.

When the trial court asked Ms. Wagner why she did not look into whether M.D. was

represented, Ms. Wagner expressed her belief that counsel for M.D. would have been

terminated at the end of the initial hearing. The trial court informed Ms. Wagner

that her belief was incorrect and that Mr. Cohen’s appointment as M.D.’s counsel

had been extended for subsequent hearings. The trial court ultimately decided not

to strike Ms. Wagner’s appearance but informed her that there were “all sorts of

ethical questions” about her behavior and that the trial court thought “a referral to

[Disciplinary] Counsel [was] appropriate.” The trial court also declined to remove

Mr. Tappan.

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Mr. Cohen understood that he served as M.D.’s counsel continuously from

the September 30, 2015, hearing through the termination of his appointment on

January 24, 2017.

The Hearing Committee concluded that Ms. Wagner was representing M.D.’s

brothers during the relevant period and that Ms. Wagner communicated with M.D.

about the subject of the representation. The Hearing Committee concluded,

however, that ODC did not prove by clear and convincing evidence that Ms. Wagner

knew that M.D. was represented by another lawyer. Specifically, the Hearing

Committee noted (1) Ms. Wagner’s prior understanding of the law governing court

appointment of attorneys in probate proceedings; (2) the “internally inconsistent”

September 30, 2015, docket entries; (3) Mr. Cohen’s failure to produce an order of

appointment after Ms. Wagner requested one, despite saying he would; and (4) the

trial court’s failure to “explicitly determine that [Ms. Wagner] had acted

unreasonably.”

The Hearing Committee accordingly recommended that the matter be

dismissed.

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B. The Board’s Order of Remand

The Board disagreed with the Hearing Committee, finding that the record

evidence established by clear and convincing evidence that Ms. Wagner knowingly

communicated with a represented party in violation of R. 4.2(a).

The Board explained that R. 4.2(a) “is primarily focused on protecting

represented persons unschooled in the law from direct communications from counsel

for an adverse person.” D.C. R. Pro. Conduct 4.2, cmt. [5]. Otherwise relying on

the Hearing Committee’s findings of fact, the Board determined that Ms. Wagner

had violated R. 4.2(a) when she repeatedly met with M.D., despite knowing that he

was unschooled in the law, felt unsafe around her clients (his brothers), and was

represented by Mr. Cohen.

The Board concluded that the evidence established that Mr. Cohen served as

M.D.’s court-appointed counsel at all relevant times in this case and that Ms. Wagner

“was well aware of that fact.” The court, the parties, and Mr. Cohen all regarded

Mr. Cohen as M.D.’s attorney; even Ms. Wagner “recognized as much when she

included Mr. Cohen’s name on the certificates of service” attached to her petitions.

The Board was unpersuaded by Ms. Wagner’s argument that her clients’

interests were not adverse to M.D.’s interests. The Board explained that, in this

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matter, M.D. was unfamiliar with the law and had court-appointed counsel and a

guardian because of his diminished capacity. M.D. had already expressed repeated

concerns about Ms. Wagner’s clients—his brothers—attempting to exploit and harm

him. The Board pointed to Ms. Wagner’s decision to announce herself as M.D.’s

neighbor, rather than attorney for M.D.’s brothers, at the assisted-living facility as

evidence of Ms. Wagner’s awareness of the adversity between M.D. and her clients.

Finally, the Board explained that adversity between parties is not the sole concern

of R. 4.2; another key aim is to “protect unsuspecting lay persons from the

inadvertent disclosure of privileged information.” By communicating with M.D.

without Mr. Cohen present, Ms. Wagner put any privileged communications at risk.

The Board remanded the question of sanction to the Hearing Committee to

give the parties an opportunity to present evidence of mitigating or aggravating

circumstances.

C. The Hearing Committee’s Supplemental Report and Recommendation

During the proceedings on remand, Ms. Wagner contended that ODC had

engaged in selective prosecution and discriminatory practices, but the Hearing

Committee found that Ms. Wagner offered only speculation in support of these

claims. Ms. Wagner also contended that her conduct did not violate R. 4.2(a), but

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the Hearing Committee explained that the Board had already resolved that issue.

Ms. Wagner also argued that the matter should be dismissed due to delay in

prosecution, but the Hearing Committee declined to do so, explaining that Ms.

Wagner had failed to identify any prejudice that resulted from any delay in

prosecution.

On the remanded issue of sanction, the Hearing Committee concluded that

Ms. Wagner’s conduct (1) was serious and put M.D.’s privileged communications

with his counsel at risk; (2) was not prejudicial to her clients, M.D.’s brothers;

(3) was not dishonest; and (4) involved violations of only one rule, R. 4.2(a). As an

additional aggravating factor, the Hearing Committee found that Ms. Wagner failed

to acknowledge her misconduct, justified her misconduct by claiming that “she had

no other choice,” and “flatly denied” feeling remorse. The Hearing Committee

further noted that Ms. Wagner’s prior disciplinary history included two informal

admonitions, one from eighteen years before this matter and one from seven years

prior. The Hearing Committee concluded that Ms. Wagner’s disciplinary history

weighed in aggravation of sanction, although the Hearing Committee acknowledged

that the older admonition should be given limited weight.

On balance, the Hearing Committee concluded that Ms. Wagner should be

publicly censured by the court. The Hearing Committee explained that although

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R. 4.2(a) violations generally result in informal admonitions, more severe sanctions

have been imposed in matters where there were aggravating factors present. The

Hearing Committee concluded that there were “significantly aggravating factors” in

this case and accordingly determined that a public censure would serve to protect

the integrity of the Bar and to deter future misconduct.

D. The Board’s Report and Recommendation on Sanction

The Board agreed with the Hearing Committee’s recommended sanction

based on the Hearing Committee’s thorough consideration of the factors articulated

in this court’s case law.

II. Analysis

A. Standard of Review

In considering a recommendation of the Board, this court will defer to the

Board’s findings of fact if those findings are supported by substantial evidence. In

re Haar, 270 A.3d 286, 294 (D.C. 2022). “The burden of proving disciplinary

charges rests with [Disciplinary] Counsel, and the Board’s factual findings must be

supported by clear and convincing evidence.” In re Johnson, 275 A.3d 268, 280

(D.C. 2022) (per curiam) (internal quotation marks omitted). The Board must defer

to the findings of fact made by a Hearing Committee, unless the Hearing

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Committee’s findings are not supported by substantial evidence. Id. at 275. We owe

no deference to the determination of legal issues by either the Board or the Hearing

Committee. In re Krame, 284 A.3d 745, 752-55 (D.C. 2022).

We note at the outset a potential issue that neither party has addressed. The

Hearing Committee found that ODC had failed to prove by clear and convincing

evidence that Ms. Wagner knew that Mr. Cohen represented M.D. At least arguably,

that factual determination should bind the Board and this court unless the Board or

the court could determine that the Hearing Committee’s determination was

“unsupported by substantial evidence,” Johnson, 275 A.3d at 276, or, alternatively,

was “clearly erroneous,” In re Lea, 969 A.2d 881, 894 (D.C. 2009). The Board’s

report and recommendation in this case does not explicitly state such a conclusion,

instead framing the issue as whether there was clear and convincing evidence that

Ms. Wagner knew that M.D. was represented.

On the other hand, we have said that “a respondent’s state of mind might be

an ultimate fact that is reviewed de novo, [although] a Hearing Committee’s

credibility findings can still constrain the determination of ultimate fact.” Krame,

284 A.3d at 754. We need not delve further into this issue, however, because the

parties have not raised the issue. Rather, both parties have framed the issue as

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whether the Board’s finding that Ms. Wagner knew M.D. was represented was

supported by clear and convincing evidence. We analyze the issue accordingly.

In determining what sanction to impose for violations of the Rules of

Professional Conduct, this court “shall 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).

“[A] sanction recommendation from the Board comes to us with a strong

presumption in favor of its imposition.” In re Baber, 106 A.3d 1072, 1076 (D.C.

2015) (per curiam) (internal quotation marks omitted). “In general, if the Board’s

recommended sanction falls within a wide range of acceptable outcomes, it will be

adopted and imposed.” Id. (internal quotation marks omitted). “Ultimately,

however, the system of attorney discipline, including the imposition of sanctions, is

the responsibility and duty of this court.” Id. (internal quotation marks omitted).

B. Procedural Objections

Ms. Wagner raises numerous procedural objections, but we do not view those

objections as providing a basis upon which to reject the Board’s conclusion and

recommendation. Most of Ms. Wagner’s procedural objections are raised in an

extremely conclusory form. Specifically, Ms. Wagner argues that the specification

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of charges in this case was insufficient; ODC’s investigation was not “full, fair and

impartial”; ODC should be required to document its charging decisions to ensure

that “impartial and consistent criteria” are applied; “systemic practices and

procedures” in the disciplinary system deny attorneys impartial and fair hearings;

Ms. Wagner received inadequate notice of a complaint against her and had no

opportunity to respond to that complaint; and ODC engaged in discrimination and

selective prosecution in this matter. We decline to consider these inadequately

developed arguments. See, e.g., Comford v. United States, 947 A.2d 1181, 1188

(D.C. 2008) (explaining that this court will decline to address arguments that are

inadequately developed in briefing because “it is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to do counsel’s work”)

(brackets and internal quotation marks omitted).

We note that Ms. Wagner purports to incorporate by reference a number of

arguments she made before the Hearing Committee and the Board. Parties, however,

must include in their briefs “an argument containing . . . the [party’s] contentions

and the reasons for them, with citations to the authorities and parts of the record on

which the [party] relies.” D.C. App. R. 28(a)(10)(A) (stating requirement as to

appellants’ briefs); D.C. App. R. 28(b) (requirement also applies to appellees’

briefs). We typically decline to consider arguments that are not contained in a

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party’s brief but instead are presented elsewhere and merely incorporated. See, e.g.,

Brown v. United States, 675 A.2d 953, 955 (D.C. 1996) (declining to consider

arguments appellant did not present in brief on appeal but instead only purported to

incorporate). We see no reason to depart from that practice in the present case.

Ms. Wagner does somewhat more fully develop two procedural objections.

First, she argues that ODC unreasonably delayed prosecution of this disciplinary

matter. “[A]n undue delay in prosecution is not in itself a proper ground for

dismissal of charges of attorney misconduct,” because “the primary purpose of

disciplinary proceedings is to protect the public . . . . [and] it would not be in the

public interest to dismiss the disciplinary proceedings for no reason other than the

Bar’s failure to prosecute [the charged attorney] with the proper dispatch.” In re

Williams, 513 A.2d 793, 796-97 (D.C. 1986) (per curiam) (internal quotation marks

omitted). Undue delay can result in a due-process violation, however, “if the

respondent demonstrates actual prejudice—that is, that the delay in prosecution

impaired [the respondent’s] defense.” In re Blackwell, 299 A.3d 561, 569 (D.C.

2023) (internal quotation marks omitted). Ms. Wagner makes no showing that she

suffered any prejudice as a result of the delay. Accordingly, we see no grounds for

relief on this point.

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Second, Ms. Wagner argues that the Hearing Committee erroneously refused

to consider certain exhibits that Ms. Wagner sought to introduce in connection with

the remand to determine the appropriate sanction. The transcript on remand reveals

that the Hearing Committee discussed the relevance and admissibility of each

proposed exhibit Ms. Wagner sought to proffer. Ms. Wagner claimed the exhibits

were relevant to her “good faith” beliefs and “state of mind” as the M.D. matter

unfolded. ODC argued that the exhibits were not clearly connected to the question

of what Ms. Wagner knew at the time of her misconduct and were therefore not

relevant. The Hearing Committee excluded Ms. Wagner’s exhibits because the

Hearing Committee was “not satisfied that Ms. Wagner showed any of [the exhibits]

were relevant to show mitigation of the violation in this case concerning her

conduct” during the period at issue. We see no basis to grant relief to Ms. Wagner

on this point. The only exhibit Ms. Wagner focuses on specifically is RX 42, which

Ms. Wagner argues shows that Mr. Cohen was not adequately representing M.D.’s

interests and that Ms. Wagner intervened out of a desire to help M.D. In

recommending a sanction, however, both the Hearing Committee and the Board

indicated that they understood that Ms. Wagner was acting in good faith to help M.D.

The excluded exhibit thus would not have affected the sanction recommendations of

the Hearing Committee and the Board, and the excluded exhibit also does not affect

our view as to the proper sanction in this case.

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C. R. 4.2(a) Violation

Essentially for the reasons stated by the Board, we agree that there was clear

and convincing evidence that Mr. Cohen was representing M.D. and that Ms.

Wagner knew that. It is true that there was at least some evidence to support Ms.

Wagner’s claim that she was not aware, particularly the ambiguous docket entries

and Mr. Cohen’s failure to provide a written order of appointment. We agree with

the Board, however, that there was much stronger evidence to support the conclusion

that Ms. Wagner knew that Mr. Cohen was representing M.D., including Ms.

Wagner’s presence at a hearing where the participants treated Mr. Cohen as M.D.’s

lawyer and Ms. Wagner’s acknowledgement of that status in a court filing.

Although Ms. Wagner suggests that her conduct was justified by a concern

about the quality of Mr. Cohen’s representation of M.D. and prompted by a desire

to intervene to help M.D., those considerations do not justify or excuse Ms.

Wagner’s violation of the Rules of Professional Conduct. Ms. Wagner had other

options to attempt to protect M.D.’s interests, such as filing motions on behalf of her

clients, M.D.’s brothers, to bring her concerns to the attention of the trial court.

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D. Sanction

Ms. Wagner does not appear to separately dispute the recommended sanction

of public censure. In such circumstances, the recommended sanction “comes to us

with a strong presumption in favor of its imposition.” Baber, 106 A.3d at 1076.

Essentially for the reasons stated by the Hearing Committee and the Board, we agree

that a public censure is an appropriate sanction in this matter.

For the foregoing reasons, we hold that Ms. Wagner violated R. 4.2(a). Ms.

Wagner is hereby publicly censured.

So ordered.