Not Age Discrimination

A District of Columbia Hearing Committee has proposed a 60-day suspension, restitution with interest and a fitness showing of an attorney based on findings that he had mishandled a tax matter

Disciplinary Counsel maintains that the record demonstrates Respondent’s Rule violations. Respondent undertook an engagement to settle Mr. Bahri’s sales tax liability, then waited several months to proceed, during which delay Respondent misrepresented to his client that the matter was already submitted. Once Respondent finally took action, he did not follow his client’s instructions to seek relief only from accrued penalties and interest but tried to challenge the entire tax liability. When the New York DTF asked for further information, Respondent simply folded – doing nothing to inform his client of that request, nor responding further to the tax authority on his client’s behalf.

… we find Disciplinary Counsel has proved by clear and convincing evidence that Respondent committed all of the asserted Rule violations. 

The committee concludes that more than a losing strategic approach demonstrated incompetent representation

To be clear, the validation of Respondent’s legal strategies does not present the sole key issue in this disciplinary proceeding. Even if Respondent had correctly identified the right relief to pursue from DTF for this client at the outset of the representation, doing nothing in response to the DTF’s request for information – failing to inquire or respond in any fashion to that request and failing to timely inform his client about it – suffices here to find that Respondent failed to provide competent representation to Mr. Bahri and prejudiced him by delaying the resolution of his tax liability. FF 42. And the totality of this largely undisputed record – Respondent’s unreasonable delays, miscues, misrepresentations to his client, pervasive confusion about the status of his client’s matter and appropriate relief available, together with Respondent’s repeated failures to perform as directed and in response to the New York DTF’s request for additional information – demonstrate by clear and convincing evidence Respondent’s lack of competency in this matter.

As to the unreasonable fee charge in a flat-fee matter

A client is robbed of the bargained-for exchange if a lawyer accepting a flat fee spends time on the engagement but delivers no value to the client or abandons the engagement before it is completed. A lawyer is breaching his flat fee contract in these circumstances, rendering the fee unreasonable when the client has paid the flat fee in advance. See Mance, 980 A.2d at 1202-03.

That is precisely what happened here: Respondent promised to “endeavor to get [Mr. Bahri’s] sales tax liability settled” in return for a $4,000 fee. DX 5 at 8-9. Mr. Bahri paid the money, but Respondent did not endeavor to resolve the tax liability beyond his initial Offer in Compromise submission. His engagement letter  contemplated more than that, but Respondent’s filing of the Offer in Compromise provided no value to Mr. Bahri because Respondent failed to follow-up on the submission. Respondent neither asked his client for nor provided necessary information the New York DTF specified in Publication 220 (FF 12), and which the DTF specifically requested from Respondent. FF 30-32. Respondent’s $4,000 fee may have been eminently reasonable had Respondent done what he promised, but it was unreasonable to charge that amount and then make no meaningful effort to resolve his client’s sales tax liability after submitting the initial Offer in Compromise. The record demonstrates by clear and convincing evidence that Respondent charged an unreasonable fee to Mr. Bahri, in violation of Rule 1.5(a).

Fitness

by clear and convincing evidence the record raises serious doubts about Respondent’s ongoing fitness to practice law. Respondent does not acknowledge, much less recognize the seriousness of his mishandling of Mr. Bahri’s tax relief matter. Respondent has taken no steps to remedy his past conduct, but simply abandoned Mr. Bahri without notice or explanation, and steadfastly refuses to refund his client’s advance flat fee that has not been earned, while blaming the client for his own failures.

He had claimed that his prosecution had amounted to “age discrimination”

The Committee understands that Respondent enjoyed an estimable law practice, beginning in 1963 and continuing through several decades, that included admirable public service within the Internal Revenue Service Office of Chief Counsel. See Rebuttal Brief at 22-23 (detailing non-sequitous employment history). Yet, laws proscribing age discrimination do not compel this Committee to overlook the many instances of Respondent’s confusion in the record. Were he a lawyer aged  only thirty-five years, the record would still raise substantial doubts about Respondent’s fitness to practice.

Respondent should be required to demonstrate fitness before he resumes the practice of law.

In re Alvin Brown can be accessed here. (Mike Frisch)