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In re Cohen

April 29, 2004

IN RE HERBERT COHEN, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS



On Report and Recommendation of the Board on Professional Responsibility (BDN 280-97)

Before Farrell and Washington, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor, Senior Judge

Argued February 11, 2004

This case presents new questions relating to the supervisory responsibility of senior lawyers for the performance of other subordinate lawyers working under their direction in a law firm, law department, government agency, or other legal group. This matter arose when respondent's law firm sought to register a trademark for a client. In the course of events, the two individuals interested in obtaining the registration had disagreements; the firm - which ended up representing both - took actions favoring one without notifying the other or safeguarding his interests. Ultimately, Bar Counsel alleged multiple violations of the D.C. Rules of Professional Conduct ("Rules") by respondent, Herbert Cohen. It was alleged that respondent violated Rule 1.3 (b) (intentionally prejudicing or damaging a client); Rule 1.4 (a) (failure to keep the client informed or to respond to reasonable requests for information); Rule 1.7 (b) (conflict of interest between existing or former clients); Rule 1.16 (d) (failure to protect client's interest and surrender papers upon withdrawal); Rule 3.3 (a) (knowingly make a false statement to a tribunal); Rule 5.1 (a) (failure to make reasonable efforts to ensure firm takes effective measures to assure conformance with Rules); Rule 5.1 (c)(2) (responsibility for violation by another); and Rule 8.4 (c) (engaging in dishonest conduct or misrepresentation).

The Hearing Committee found violations of all the specifications except Rules 1.3 (b), 3.3 (a), and 8.4 (c). The Committee further found that respondent had violated Rule 5.1 (c)(2) by his failure reasonably to become aware of and prevent a violation of Rule 8.4 (c) by an attorney under his supervision, Jonathan Cohen. The Board on Professional Responsibility ("Board") adopted the Committee's findings and conclusions in the main. In addition, however, the Board concluded that respondent had violated Rule 5.1 (c)(2) by his failure reasonably to become aware of and prevent a violation of Rule 3.3 (a) by Jonathan Cohen. The Board, with concurrence of Bar Counsel, recommends that respondent be suspended from the practice of law in the District of Columbia for a period of thirty days. We adopt this recommendation.

I.

In 1992, respondent was a name partner in a law firm consisting of approximately twelve attorneys. During the year the firm undertook representation of Dr. Carl Schleicher and his company, Mankind Research Foundation ("MRF"), a non-profit company, in a trademark proceeding before the United States Patent and Trademark Office ("PTO"). The firm sought to register the trademark "ESSIAC," on behalf of Dr. Schleicher and his company. Although Herbert Cohen, a partner in the law firm, conferred on occasion with the client, Jonathan Cohen, an associate in the law firm (and respondent's son), performed much of the day-to-day work related to the representation of the client. Dr. Schleicher made the initial contact with the law firm, and was, at the outset, the individual with whom the firm communicated. Prior to engaging the services of the firm, MRF entered into a business arrangement with David Dobbie, whereby Mr. Dobbie would serve as the exclusive distributor of products under the "ESSIAC" trademark.

Pursuant to the client's request, the firm initiated a trademark application for MRF for the trademark "ESSIAC" before the PTO. The trademark registration process did not go as smoothly as the parties had anticipated, as the trademark "ESSIAC" was already registered to a different entity. The firm advised MRF that in order to secure the trademark for its own use, a cancellation proceeding before the PTO would be necessary. In such a proceeding, the prior registration would be cancelled. The expectation was that after a successful resolution of the cancellation proceeding, the PTO would then act on MRF's trademark application.

During the pendency of the matters before the PTO, the relationship between Dr. Schleicher and Mr. Dobbie deteriorated. During this time, Mr. Dobbie took a more active role in dealing with the firm. At one point, in spite of their worsening relationship, Dr. Schleicher authorized the firm to deal with Mr. Dobbie instead of him. Subsequently, the hostility between Mr. Dobbie and Dr. Schleicher escalated, and Dr. Schleicher revoked his prior authorization that the firm deal with Mr. Dobbie, and instructed that the firm once again communicate only with him. At this point, respondent was aware that the relationship between Mr. Dobbie and Dr. Schleicher was acrimonious. Nevertheless, at the request of Mr. Dobbie, now effectively a client of the firm, Jonathan Cohen filed an application to withdraw MRF's initial trademark application before the PTO. During this time, the firm continued to pursue the cancellation proceeding. The withdrawal application was critical because it meant that, if and when the PTO cancelled the prior registration, the trademark "ESSIAC" would be available and Mr. Dobbie would be able to register it for his own benefit, free of any connection with MRF.

After the trademark application withdrawal had been submitted to the PTO, Dr. Schleicher made repeated inquiries requesting information about the general status of the matter. He was not told that the initial application for a trademark on behalf of MRF had been withdrawn. While informed that the cancellation proceeding was ongoing, his repeated requests for information and related documentation were largely ignored. Dr. Schleicher continued to inquire, and at one point was informed by the firm that they no longer considered him (and MRF) their client. During the course of a series of letters exchanged between Dr. Schleicher and respondent, Dr. Schleicher insisted that he was being mistreated by the firm, and continued to demand information and documents.

As it became more apparent that Dr. Schleicher was displeased with the legal representation, respondent took a more active role in the matter. To this end, he sought a legal opinion to determine whether Dr. Schleicher remained the firm's client. This inquiry confirmed that Dr. Schleicher was still the firm's client. Thereafter, the firm took steps to resolve the problems which had arisen. Dr. Schleicher, however, filed a complaint with Bar Counsel alleging that Herbert Cohen had committed violations of the Rules of Professional Conduct.

II.

A.

A Hearing Committee conducted an extensive hearing and examined a number of witnesses and documents. The Committee made numerous findings of facts and concluded that Mr. Cohen had violated several Rules of Professional Conduct. The Hearing Committee found that respondent did not comply with repeated requests for information made by Dr. Schleicher relating to the status of his case, in violation of Rule 1.4 (a). It also found that the firm undertook representation of one client, Mr. Dobbie, that was directly adverse to its representations of another client, Dr. Schleicher (and MRF), without obtaining informed consent from Dr. Schleicher, in violation of Rule 1.7 (a). The Committee found that when the law firm and Dr. Schleicher finally terminated their relationship, respondent failed to surrender certain papers that Dr. Schleicher requested, and also failed to give him proper notice regarding issues then pending in the matter. Accordingly, the Committee found respondent in violation of Rule 1.16 (d). The Hearing Committee also found that, in violation of Rule 5.1 (a), the firm did not have measures in place to assure that all lawyers in the firm would adhere to the Rules of Professional Conduct. Respondent, in general, ...


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