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In re Gonzalez

June 07, 2001


Before Schwelb, Reid, and Washington, Associate Judges.

On Report and Recommendation of the Board on Professional Responsibility

Argued May 2, 2001

Schwelb, Associate Judge: In a written order issued on July 27, 2000, the Board on Professional Responsibility instructed Bar Counsel to issue an "informal admonition" to Edward Gonzalez, a member of our Bar, for revealing secrets of a client. Gonzalez has excepted to the order, claiming that he did not violate any Disciplinary Rule. We agree with the Board and direct that the admonition be issued.


In 1997, Gonzalez, who is also a member of the Virginia bar, was retained by A.A. and A.A.'s company, D.B.I., *fn2 to defend a suit which had been brought against them in the Circuit Court for Fairfax County, Virginia. Problems arose in the lawyer-client relationship when A.A. and D.B.I. failed to make payments to Gonzalez in accordance with their retainer agreement. During the early months of 1998, Gonzalez wrote a number of letters to A.A. in which he complained that he had not been paid. Gonzalez also accused A.A. in these letters of failing to cooperate with him in preparing a defense and of making untrue representations to him. Gonzalez warned that, unless these problems could be promptly and amicably resolved, he would move to withdraw as counsel.

The relationship between lawyer and clients did not improve, and on May 8, 1998, in accordance with his warning, Gonzalez faxed and mailed to A.A. a "Notice of Intent to File Motion for Leave to Withdraw," as well as a "Motion for Order Permitting Withdrawal from Representation." A copy of the motion was mailed to the attorney for the adverse party in the Circuit Court action against A.A. and D.B.I. In his motion, Gonzalez represented that his clients were not paying their bills in a timely manner and that they had failed to cooperate with him in preparing for trial. Gonzalez further alleged that

[A.A.] has missed appointments on a number of occasions, failed to timely provide information necessary to the case, and made misrepresentations to her attorneys. (Emphasis added.)

Attached to Gonzalez' initial motion *fn3 were copies of seven of the letters in which he had berated A.A. for her alleged non-cooperation and, in two of the letters, for misrepresenting certain facts to him. In these letters, Gonzalez revealed, inter alia, the amounts allegedly owed to him by A.A. and D.B.I. In one of the letters filed with his motion, Gonzalez advised A.A.:

Your exposure is in the tens of thousands. The complainant asks for approximately $1 million. [Plaintiff's] attorney talks of a realistic figure around $90,000. At a minimum there is about $40,000 at stake from his payments to you.

Shortly after Gonzalez first moved to withdraw, and before he had re-filed his motion so as to comply with the Circuit Court's requirements, see supra note 3, a new attorney entered an appearance for A.A. and D.B.I., and a stipulation was filed substituting the new attorney for Gonzalez. Dissatisfied with Gonzalez' representation, however, A.A. made a complaint against him to District of Columbia Bar Counsel. In correspondence with Bar Counsel, A.A. expressed her concern regarding Gonzalez' "failure to perform legal services for me properly," and she claimed that Gonzalez had "breache[d] his obligation of confidentiality to me by revealing privileged matters detrimental to my ongoing lawsuit."

On or about August 27, 1999, in response to A.A.'s complaint, former Bar Counsel issued a "Specification of Charges" against Gonzalez in which he summarized the foregoing facts. Bar Counsel alleged, inter alia, that Gonzalez had knowingly revealed a confidence or secret of his client, in violation of Rule 1.6 (a)(1) of the District's Rules of Professional Conduct and Disciplinary Rule DR 4-101 (B)(1) of the Virginia Code of Professional Responsibility. The case was referred to an "ad hoc" Hearing Committee, and a hearing was held on October 6, 1999. On January 12, 2000, the Committee issued proposed findings of fact and conclusions of law in which it set forth the events described above. The Committee concluded that Gonzalez had not revealed a "secret" of his clients because, in the Committee's view, the principal facts disclosed by Gonzalez "should not be deemed information gained in the professional relationship between Gonzalez and his clients." The Hearing Committee further reasoned that to the extent any information revealed by Gonzalez was gained in his professional relationship, the disclosure was not detrimental or embarrassing to A.A.

Bar Counsel excepted to the Hearing Committee's findings, and the matter was heard by the Board on Professional Responsibility. The Board disagreed with the Hearing Committee's analysis and concluded that "the information [Gonzalez] included in the motion to withdraw and its attachments at least constituted 'secrets' within the meaning of Virginia DR 4-101(B)." Noting Gonzalez' argument that the Circuit Court would not have been prepared to grant Gonzalez' motion to withdraw if Gonzalez had failed to submit a reasonably detailed justification for the relief sought, the Board stated:

We do not think the need for support for his motion can justify Respondent's decision to make public his client's secrets. Even in situations recognized in the rules as exceptions to the ban on revealing client secrets, the attorney is obligated to reveal only the minimum information necessary under the circumstances and to take steps to minimize any harm to the client's interest.

In addition, there is no reason those documents could not have been provided to the [Circuit] Court in camera, so that the [Circuit] Court could be satisfied that the motion had a factual ...

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