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D.C. Agency Probes Brazil's Use of Staff

By Serge F. Kovaleski
Washington Post Staff Writer
Saturday, June 5, 2004; Page B01

The Office of Campaign Finance said yesterday that it has begun an inquiry into whether D.C. Council member Harold Brazil violated city laws or personnel regulations by having members of his council staff perform work for his private law practice.

Kathy S. Williams, general counsel for the Office of Campaign Finance, said the agency has taken the first step of initiating an internal inquiry into the matter, a process that could take two to three weeks.


D.C. Council member Harold Brazil is a personal-injury lawyer.

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"We are going to take a look at the facts and assess the situation," Williams said. "If a full investigation is required, we will do so."

The Washington Post reported Thursday that Brazil (D-At Large), who runs his own personal-injury law firm, has used two lawyers on his council staff three times in the past several years to fill in for him in court and prepare documents for cases.

Brazil, a council member since 1991 and chairman of the Economic Development Committee, was unavailable for comment yesterday. Shana Heilbron, his spokeswoman, said, "We are very willing to comply fully with the inquiry."

The two council lawyers, James Abely and Aimee Occhetti, said in interviews that they used leave or vacation time whenever they did outside legal work for Brazil. Abely said he was not paid for the work, and Occhetti said she might have been but was not certain.

In one case, Brazil had a council lawyer appear for him at a mediation in D.C. Superior Court in November. Brazil's client is seeking more than $250,000 in damages from an automobile accident.

Several lawyers specializing in legal ethics said Brazil could be vulnerable to an ethics complaint and investigation by the D.C. Office of Bar Counsel , an arm of the D.C. Court of Appeals that investigates allegations of ethical misconduct by lawyers. Brazil's council office declined to comment on the possible ethical implications.

The November mediation failed to produce a resolution, and the case is set for trial next month. The client, Latessar Elliott, 28, said Brazil did not tell her he was sending a council lawyer in his place. Had she known Abely was not with the law firm, Elliott said, she would have objected to his handling the mediation.

Lawrence J. Fox, former chairman of the ethics committee of the American Bar Association, said that if Brazil did not properly inform his client, it "certainly could be grounds for an ethics complaint."

Fox said a lawyer is obliged to get a client's permission before sending a fill-in and to make the client aware of important facts, including the surrogate's qualifications and potential conflicts of interest.

Wallace "Gene" Shipp Jr., deputy bar counsel in Washington, would not comment but said that "bar counsel takes complaints from any source whatsoever. Those would include complaints from individuals, judges and facts contained in newspaper articles or other publications."

Superior Court records show that on Nov. 19, the date of the mediation, Abely signed a document stating that the clerk of the court will "Please recognize appearance of James Abely, counsel for plaintiff."

Abely, legislative counsel on the economic development committee, also signed a "Statement of Understanding; Mediation and Case Evaluation," the records show.

Stephen Gillers, professor of legal ethics at the New York University School of Law, said, "The client, as the person who is at risk here, has the right to expect that the lawyer she retained will appear in court on all substantial matters or that the lawyer will send an equally qualified member of his law firm."

"The client retained the law firm, not the city council," Gillers said. "This was not a perfunctory appearance. This [mediation] was a significant event that could seriously affect the course of the dispute and the client's interests."

Gillers noted that Abely could have assumed that there already was an agreement in place between Brazil and the client for him to appear at the mediation. But if it became apparent that the client did not understand Abely's status, it would have been Abely's responsibility to explain it. Abely was unavailable for comment yesterday evening.

Geoffrey Hazard, a professor of law at the University of Pennsylvania who specializes in ethics, said sending Abely to the mediation without the client's approval would be a serious breach. "This could be regarded as abandoning the client on the part of the retained lawyer because there was no informed consent by the client," Hazard said.

If there was no informed consent, Hazard said, "it also was misleading to the court because the fill-in was there without the client's authority and has no official standing in the proceeding."

Staff researcher Meg Smith contributed to this report.


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