On Monday, May 08, 2023, the District of Columbia Court of Appeals Board on Professional Responsibility issued an order of remand in the case of attorney Brenda C. Wagner who was alleged to engage in communication with a party involved in a guardianship case, despite already representing other parties involved in the case.

The case is entitled “In the Matter of Brenda C. Wagner,” with case no. 20-BD-059.

The disciplinary issue stemmed from the fact that the respondent engaged in communication with a party involved in a guardianship case, despite already representing other parties in the same case. After careful review, the Ad Hoc Hearing Committee concluded that the Disciplinary Counsel did not sufficiently demonstrate that the respondent breached Rule 4.2(a) by communicating with a party who had already been assigned legal representation by the court in the aforementioned case.

The report and recommendation state:

“For the foregoing reasons, the Committee finds that Disciplinary Counsel has not demonstrated, by clear and convincing evidence, that Respondent has violated Rule 4.2 and the Committee recommends that this matter be dismissed.”

However, in disagreement, the District of Columbia Court of Appeals Board on Professional Responsibility finds that the record evidence establishes by clear and convincing evidence that the respondent knowingly violated the Rules of Professional Conduct.

The order of remand states:

“Respondent’s argument that her client’s interests were not adverse to M.D.’s interests is equally unpersuasive. Respondent correctly notes that the rule prohibiting communications with represented parties is primarily focused on protecting represented persons unschooled in the law from direct communications from counsel for an adverse person. See Rule 4.2, CMT. [5]. Here, M.D. is not only unschooled in the law but had court-appointed counsel and a guardian because of his diminished capacity. Further, M.D. clearly believed that his brothers had interests adverse to his own. He repeatedly expressed concerns that the Respondent’s clients sought to take advantage of him or were going to steal from him or otherwise harm him. Whether his concerns were well-founded or not, they cannot be ignored. The fact that Respondent, when visiting M.D. at Raphael House, announced herself as M.D.’s neighbor – and not as an attorney representing his brothers – demonstrates that Respondent was aware of M.D.’s concerns which evidence adversity between M.D. and Respondent’s clients.”

The order of remand continues:

“Further, adversity between parties is not the Rule’s sole concern, nor must it be proven to establish a violation of Rule 4.2. Rule 4.2 also seeks to protect unsuspecting lay persons from the inadvertent disclosure of privileged information. 15 See D.C. Bar Ethics Opinion 258 (Sept 1, 1995) (“Courts also have observed that Rule 4.2 helps prevent the inadvertent disclosure of privileged information and has ‘preserved the proper functioning of the legal system’ by protecting the integrity of the lawyer-client relationship.”). By communicating with M.D. without the permission of his counsel, Respondent placed any such privileged communications at risk.”

In lieu of this, the Board of Professional Responsibility remand the matter to the Ad Hoc Committee for proceedings.

The remand states:

“Disciplinary Counsel asks that the Board “recommend to the Court the sanction of the issuance of an informal admonition.” ODC Reply Br. at 19. However, because the Hearing Committee did not reach a preliminary, non-binding determination that Respondent violated Rule 4.2(a), the parties did not have the opportunity to present evidence at the hearing in mitigation or aggravation. See Board Rule 11.11. Thus, we remand this matter to the Ad Hoc Hearing Committee for proceedings consistent with this decision. See D.C. Bar Rule XI, 9(c); Board Rule 13.7.”

Ms. Wagner practices in Washington, DC. She is licensed in the District of Columbia. Her info can be found on lawyersjustia.com.

A copy of the original filing can be found here.