What We Had Here Was A Failure To Communicate

The District of Columbia Court of Appeals has ordered a stayed suspension of 30 days and probation in a case involving intentional failure to seek the client’s lawful objectives and failure to communicate.

Notably, the court refers to the prosecutor’s office as both Disciplinary and Bar Counsel in its opinion.

I have attended several oral arguments at the court since the name change where all participants – judges and counsel- stumble over the proper name of the office. The name change – purportedly done to avoid confusion – has led to (at least in the short term) the precisely opposite result.

The court rejected the attorney’s claimed due process violation of inadequate notice

We think it implausible that a member of the Bar would be confused as to which facts in the specification, for example, “Respondent did not communicate to Ms. Norris that her case was in danger of being dismissed or what steps she may have undertaken to avoid the dismissal of her case,” were being alleged as a basis for showing violations of the Rules. That is especially so in light of the fact that Francis, if he were actually confused about which facts constituted violations, did not ask Bar Counsel for a Bill of Particulars.

Also rejected was the asserted inadequate proof of a failure to communicate

we reject Francis’ argument that the Board erred in finding that he violated the rules on client communication. We note that he never communicated with Norris during his representation of her. Instead, Francis insists it was [co-counsel] Stewart’s duty, not his, to communicate with the client, see Rules 1.4 (a) and (b), arguing that communication by local counsel with lead counsel satisfies the client communication requirement. In support of that claim he argues that in cases where there is both local counsel and lead counsel, communications from local counsel to lead counsel satisfy the requirements of client communication because lead counsel, in turn, is tasked with relaying local counsel’s messages to the client. However, he cites no authority in support of this proposition. Instead, Francis poses to the court hypotheticals such as: 1) Does local counsel have a duty to duplicate all communications from lead counsel to the client?; and 2) In large firms, where there are multiple attorneys on a single case, must each attorney directly communicate with the client to avoid being in violation of the Rules? But neither of those questions are before us, nor do they have any applicability to this case. We think it sufficient that here Francis was the only counsel of record—he was the only person receiving notice of filings from the court, and no other attorney possessed that information. In short, Francis had exclusive possession of the information needed by Norris in order for her to make informed decisions about her case, and therefore Francis had the obligation to take steps to keep Norris informed, either by directly informing her or by communicating the information to Stewart to be communicated to Norris. Francis did not take such steps in this case.

 When the lawyer asks the hypotheticals, the court is not required to answer. (Mike Frisch)