Federalism And Bar Discipline

An excellent and thoughtful hearing committee report from the District of Columbia

Respondent, Donald R. Harris, is charged with violating Rules 1.4(b) (failure to explain a matter to a client), 1.5(a) (charging an unreasonable fee), 1.15(a) (failure to maintain records; commingling; and intentional or reckless misappropriation), 1.15(e) (relating to treatment of advanced unearned fees), 8.1(a) (knowingly false statement of fact in connection with a disciplinary matter), and 8.4(c) (dishonesty, fraud, deceit, and misrepresentation) of the District of Columbia Rules of Professional Conduct (the “Rules”), arising from his representation of Victoria and Armond Bailey in challenging the actions of Children Services in Lucas County, Ohio, and seeking the returned custody of five children while their appeal was pending before the Ohio Court of Appeals. Disciplinary Counsel contends that Respondent committed all of the charged violations, and should be disbarred as a sanction for his misconduct and ordered to refund the fee paid by his clients as a condition of reinstatement. Respondent admits violating the recordkeeping requirements under Rule 1.15(a), but contends that he did not violate Rules 1.4(b), 1.5(a), 1.15(a) by commingling or misappropriation, 1.15(e), 8.1(a), and 8.4(c).

As set forth below, Hearing Committee Number Eleven finds that Disciplinary Counsel has proven by clear and convincing evidence that Respondent violated Rules 1.4(b) by failing to explain the matter to his client, 1.15(a) and (e) by intentionally misappropriating the clients’ advance fees and failing to maintain proper records, and 8.1(a) by knowingly making a false statement of fact during the disciplinary investigation, but did not prove a violations of Rules 1.5(a) (charging an unreasonable fee), 1.15(a) (commingling), or 8.4(c) (dishonesty, fraud, deceit, and misrepresentation). The Hearing Committee recommends that Respondent be disbarred for intentional misappropriation.

One troubling aspect of this matter warrants discussion at the outset. All the conduct in question here transpired in Ohio. The Baileys live in Ohio. Respondent operates his law practice in Ohio. Respondent is not and has never been a member of the Ohio bar. His efforts to gain admission to that Bar have been unsuccessful.

Respondent has relied on the federal practice exemption to Ohio’s unauthorized practice of law rules to maintain a law practice over many years in Ohio. As the Ohio courts have had occasion to observe, because the Respondent is not a member of the Ohio bar his practice is not regulated in Ohio.

The federal practice exemption is grounded in federalism, which is surely an important part of our system. It creates an accountability gap—or at least a ready accountability gap—in cases like this. If Respondent had actually filed a case in the Ohio federal courts he might have been called to task before those courts, but Respondent did not. Were we to accept Respondent’s rendition of the facts he took the Baileys’ money, thought about federal law issues, and then the attorney and client parted ways. The Baileys did what surely few clients will have the wherewithal and stamina to undertake, which was to contact the home Bar and ultimately travel across the country to press their case.

In contesting this matter Respondent has relied on (inconsistent and inadequate in our view) disclaimers that his practice was limited to federal law. While the implications of such a disclaimer may be apparent to a practitioner, we think it clear from the record that this nuance was never thoroughly explained to the Baileys, and certainly the implications as to what Respondent could and could not do were not understood by the Baileys.

What the Baileys knew was that the State of Ohio was taking their children away, and they needed a lawyer. What they got was, at best, a lawyer who considered but did not file a moonshot federal claim in the quintessentially state-law area of child protection. Adding insult to injury, they then had to travel halfway across the country to seek redress. Where a lawyer is not locally barred we believe it should be made explicit that the onus under Rule 1.4(b) sits squarely on the lawyer to fully explain in writing (not boilerplate or labels) what the lawyer can and cannot do for their potential client.

The committee links to a 2004 order of the Ohio Supreme Court denying his admission.

In this case, the applicant has failed to establish by clear and convincing evidence that he has the necessary character and moral qualifications to be admitted to the practice of law. As the panel noted in its February 2002 report, “when questioned about his financial affairs, Mr. Harris answered the questions with irrelevant information and was very evasive.” Because of his complex financial dealings, the relator and the panel requested financial records to support the applicant’s assertions. Despite several requests, the applicant never furnished the information requested. Nor did the applicant respond in writing to the panel’s specific demand in June 2002 for financial documents.

Based upon the applicant’s neglect of his financial affairs and his repeated failures to furnish requested financial information, we disapprove his application to register as a candidate for admission to the practice of law. Applicant may, however, reapply for admission to the practice of law by filing an entirely new application to register as a candidate and undergoing a new character and fitness evaluation.

He was admitted in the District of Columbia on March 1, 2004.

The hearing committee report is signed by Chair Matthew Herrington, public member Trevor Mitchell and Patricia Millerioux.

In re Donald Harris can be accessed here. (Mike Frisch)