2015 Investigative Summary 3

Investigation of Alleged Failure to Maintain Active Bar Membership; Failure to Accurately Certify Bar Membership Status;
Failure to Keep the Client Informed; Misrepresentation to OPR and the State Bar

A DOJ component notified OPR that a Department attorney was not an active member of any state bar for a period of more than two years. The attorney was administratively suspended by her state bar for failing to timely pay a late fee imposed for her failure to complete the final hour of her Continuing Legal Education (CLE) requirement until one month after the deadline had passed.

Upon being notified by her component that her license was under suspension, the attorney contacted the bar, paid the outstanding fees and dues that had accrued during her suspension, and was retroactively reinstated that same day. During the period of her administrative suspension, the attorney three times certified that she was an active member of the bar.

Based on the results of its investigation, OPR concluded that the Department attorney committed intentional professional misconduct in violation of state bar rule. OPR further concluded that the attorney committed professional misconduct by acting in reckless disregard of her obligation to comply with Department policy by certifying to the Department in three successive years that she was an active member of the bar when, at the time of each certification, her membership had been suspended.

OPR concluded that the attorney knew or should have known at the time of each certification that the certification was inaccurate. Under the circumstances, the attorney's failure to inquire of the bar as to her membership status prior to signing the certifications represented a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation.

OPR further concluded that the attorney acted in reckless disregard of her duty under the pertinent state bar rule to keep her client reasonably informed by failing to inform her component that she had been suspended by the bar. Finally, because the state bar reinstated the attorney, retroactive to the date of her suspension, OPR could not conclude that the attorney violated her obligation to maintain an active bar membership. But for the Bar's retroactive reinstatement of the attorney's active bar membership, OPR would have concluded that she had engaged in professional misconduct by acting in reckless disregard of her obligation to be authorized to practice Jaw by maintaining an active membership in at least one state bar, as mandated by statute and Department policy.

Because the Bar retroactively reinstated the attorney's active bar membership and treated her membership as though she were continuously active, OPR was unable to conclude that the attorney engaged in professional misconduct by violating her obligation to be authorized to practice law by maintaining at least one active bar membership. OPR concluded, however, that the attorney exercised extremely poor judgment when she failed to take proper steps to ensure that she was in compliance with her obligation to maintain an active bar membership.

Upon completion of its investigation, OPR referred the results of its investigation to the PMRU, which overturned OPR's finding that the attorney engaged in intentional professional misconduct but upheld OPR's findings in all other respects, including that she committed professional misconduct in violation of her duty under state bar rules to keep her client reasonably informed.

Because the attorney resigned from the Department before the PMRU completed its review, no discipline could be imposed. The PMRU, however, authorized OPR to refer its professional misconduct finding to the appropriate state bar disciplinary authority, and OPR has done so.