In re Thomas Fortune Fay

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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

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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.

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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

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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.

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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.

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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

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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,

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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

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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 . . .)

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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).

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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.

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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.

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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

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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.

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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.