D.C. Issues Admonitions In Three Matters; Two From Probate Court

The web page of the District of Columbia Bar has posted informal admonitions issued to attorneys in three matters. 

Portions of the letters of Disciplinary Counsel are quoted below.

One case involves the estate of a woman who died in 1992. Her sole asset was her home. Her daughter moved in without opening an estate and experienced problems paying taxes .

Twelve years later, she sought counsel to save an interest in the home and retained the attorney.

The client was appointed as the administrator and the estate matter was resolved.

Trouble was

The issues in this case center on changes to the probate rules under the 1994 Probate Reform Act. Under the Act, different laws and rules apply to probate proceedings depending on when the decedent died. If a decedent died before July 1. 1995, the applicable rules and regulations require accountings to be filed with the court unless waived and require attorneys to seek court approval before accepting compensation from the estate. If a decedent died on or after July 1, 1995, however, amended rules apply. The amended rules do not necessarily require estates to be supervised or require court approval before accepting compensation.

The attorney misconduct was a result of treating the estate representation as covered by the new law.

Here, you failed to file accounts for more than three years from the date you filed the petition based on your unfamiliarity with the Rules that applied to decedents who died before July 1, 1995. Disciplinary Counsel notes that even had the Estate been unsupervised, you failed to timely complete the Estate’s accountings and failed to file a Certificate of Completion-which is required to close unsupervised estates-for more than three years after opening the probate matter. This conduct violated Rules l.3(a) and (c)…

Here, you accepted a fee for probating the Estate without obtaining prior court approval. By accepting a fee that was prohibited by law, you violated Rule 1.5(a).

The case is In re Bruce Gardner .

In re Robert Scott also involves a probate court referral

We opened an investigation based on an order of the Probate Division of the D.C. Superior Court denying your amended petition for compensation, and referring your conduct to this office. In the order, the Probate Court found that your amended petition did not comply with the court’s earlier orders to (I) correct the mileage rate and separate the mileage expenses by year, and (2) explain the steps you had taken to prevent mistakes in your certifications – you previously had represented that you were current with all required court filings. when in fact you were not. The court further found that your amended petition attached the same inaccurate certification. In referring you to Disciplinary Counsel, the court noted it previously had admonished you to take the ”utmost care when making a certification to the court” and warned you that filing a false certificate could result in serious consequences, including sanctions by the court. The court denied your petition for compensation in its entirety, and denied your subsequent motion for reconsideration…

The Probate Division had other problems with your petitions for compensation, including your use of incorrect mileage rates. Although the effect of your using an outdated mileage rate resulted in minimal deductions (less than $1.00 in all cases), auditors and others in the Probate Division had to expend time and resources to correct your errors. Also, after the Probate Court corrected your petitions and instructed you as to the proper procedures, you continued to file petitions in other cases with incorrect mileage,rates. This required the auditors to again correct your calculations in the petition, and explain the deductions to the Probate Court before it could approve the petition, as corrected. Further, in one petition, you miscalculated the total number of hours you spent. The auditors also caught and corrected this error.

You have acknowledged the errors in the petitions and certifications. Your failure to take immediate corrective action when the Probate Court first admonished you about the certifications was unacceptable. However, you eventually took remedial steps to ensure that the problems that led to the court referral do not recur, including: conducting an inventory of all the matters you have; creating a new diary or calendar system that includes electronic reminders; and taking a six hour course in technology. 

Unauthorized Maryland practice was the issue in In re Harry Max

You and your firm represented the plaintiff in a personal injury action that was filed in the Circuit Court for Prince George’s County, Maryland. Another partner in your firm, who is a member of the Maryland Bar, signed the civil complaint fi led with the Maryland court. After the civil complaint was filed, you were the counsel  who interacted with defense counsel, and the only counsel for plaintiff who participated in a telephonic prehearing conference with the judge, defended plaintiff at her deposition, took the depositions of the defendant and a witness, appeared as plaintiff’s counsel in the depositions of three additional witnesses, and prepared and responded to discovery requests. You were not a member of the Maryland Bar when you engaged in these activities and had not sought admission pro hac vice in the case.

In early June 2016, you advised defense counsel that you would be the trial attorney in the case. In early August 2016, approximately one and a half months before the scheduled trial, defense counsel learned that you were not admitted to the Maryland Bar. When defense counsel contacted you on August 5, 2016, you admitted you were not licensed in Maryland, but said you intended to file a motion for pro hac vice admission. Ten days later, the lawyer in your firm who was a member of the Maryland Bar (and who had a signed the civil complaint), filed a motion seeking your admission pro hac vice. The motion requested that your admission “be applied retroactively from the inception of this matter through its conclusion to include all depositions, court proceedings, and discovery.” Defense counsel responded to the motion, outlining your activities in the case thus far, and requesting a hearing on your motion. On September 20, 2016, the Maryland court denied the petition for your admission pro hac vice. Your client’s case settled and was dismissed on September 23, 2016.

An attorney is free to reject the informal admonition and fight the resulting formal charges.

Few do. (Mike Frisch)