In re Herbert Cohen
204 D.C. App. Lexis 194 (2004)

  • Cohen was a partner in a law firm, and had other attorneys reporting to him. The law firm was hired by a non-profit (MRF) to help get a trademark registered.
  • During the process, the two clients from the non-profit (Schleicher and Dobbie) got into an argument. They split up and Cohen’s law firm began representing both clients.
    • Schleicher told the la firm to only deal with him and not talk to Dobbie.
    • Behind Schleicher’s back, one of Cohen’s associates (his son actually) secretly filed an application to withdraw the trademark application, so Dobbie could register the trademark for his own benefit.
  • This favoring of one client to the detriment of another client was likely a violation of:
    • Rule 1.3(b), intentionally prejudicing or damaging a client.
    • Rule 1.4(a), failure to keep a client informed.
    • Rule 1.7(b), conflict of interest between existing clients.
    • Rule 1.16(d), failure to protect a client’s interest.
    • Rule 3.3, making false statements to a tribunal, and
    • Rule 8.4, misconduct.
  • As an attorney in a supervisory position, Cohen had a responsibility to keep an eye on what his subordinate lawyers were doing. A failure to do so constitutes a violation of Rule 5.2.
    • Rule 5.2(c)(2) says that supervisory lawyers must make reasonable efforts to become aware of ethical violations by subordinates.
  • Schleicher, who felt he had been treated unfairly, filed a complaint with the Petitioner Board of Professional Responsibility.
  • The Petitioner Board recommended that Cohen be found guilty of violating Rule 5.2, and suspended his license for 30 days. Cohen appealed.
    • The Petitioner Board found that Cohen failed to become aware of and prevent violations of Rule 3.3(a) and Rule 8.4(c) by attorneys under his supervision.
    • The Petitioner Board also recommended that the firm be found guilty if violating Rule 5.1(a), which says that a law firm must have measures in place to assure compliance with the Rules of Professional Conduct.
    • The Petitioner Board also recommended that Cohen’s son be found guilty of violating Rule 1.4(a), Rule 1.7(a), and Rule 1.16(d).
  • The Appellate Court accepted the recommendations.
    • The Appellate Court found that a lawyer of reasonable prudence and competence would have made the inquiry necessary to determine the status of the proceedings, should have known of the withdrawal of the application, and should have been able to take remedial action to avoid its consequences.