Thursday, November 9, 2006

Reciprocal Discipline

by Mike Frisch

The imposition of reciprocal discipline -- summary sanction imposed by courts and tribunals that share disciplinary authority with a court that has sanctioned an attorney -- is an important component of sensible regulation of the legal profession. The overarching theory of reciprocal discipline is that an accused lawyer is entitled to one full and fair adjudication of charges. Once that decision is made, it should be respected and applied by all other courts that have admitted the lawyer to practice. The operation of reciprocal discipline has been greatly improved as a result of the creation of a data bank of sanctioned lawyers by the ABA. All states report their discipline to the data bank and all other jurisdictions have access to the information. Thus, the old problem of lawyers who are disbarred or suspended simply relocating to other states and continuing to practice has been greatly reduced.

A case decided today by the District of Columbia Court of Appeals decided an important and recurring local issue. The governing court rule requires a sanction from a "disciplining court" with authority to suspend or disbar as a predicate to reciprocal sanction. The District, so far as I can tell, does more reciprocal business than any court in the country, likely because there are so many lawyers admitted there who principally practice elsewhere. The case holds that reciprocal discipline may not be imposed where the sanction is imposed by a court-created  body that itself does not have the power to suspend or disbar. Thus, non-suspensory sanctions by Boards or Bar Counsel from other states cannot form the basis for summary reciprocal discipline. [Here is a link to the PDF of the D.C. decision, handed down today.]

Bar Counsel cannot, as a practical matter, prosecute these reprimand-type cases from other jurisdictions from scratch. Thus, these cases likely will fall between the reciprocal cracks and give lawyers with a disciplinary history elsewhere a clean bill of health in D.C. I would guess that the court will consider an amendment expanding its definition of a "disciplining court" to cure this problem.

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