Censure For Rule 4.2(a) Violation

The District of Columbia Court of Appeals has censured an attorney for unauthorized communication with a represented party

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.

The party

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  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.

Respondent represented the brothers.

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.

A hearing committee found no violation

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.

The board had disagreed and remanded the matter

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 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.

A censure was proposed by both the hearing committee and the board.

The court on the key knowledge element

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 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.

It being D.C. there is always a delay issue

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.

Merits

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.

The court thus imposed the recommended sanction. (Mike Frisch)