Friday, March 2, 2007

Today's Jeremiad

A series of decisions issued yesterday by the District of Columbia Court of Appeals highlight the fundamental flaw in the jurisdiction's approach to bar discipline cases. The culprit is the court's Rule XI, section 9(g)(1), which requires the court to adopt the sanction proposed by its Board on Professional Responsibility "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." This rule has led to acquiesence in the present Board's lenient response to dishonest conduct that has ill served the public interest.

The first case involved an attorney who had falsified his resume and altered his law school transcript. Sanction: 30 day suspension with automatic reinstatement. The second matter was an attorney who had made false statements to a tribunal, engaged in unauthorized practice, dishonesty and conduct that had seriously interefered with the administration of justice. Sanction: 90 day suspension with automatic reinstatement.

The third case is the most distressing one-- the attorney had engaged in serious neglect of a client's matter and had thereafter actively concealed the errors from the client. The hearing committee rejected as incredible the attorney's attempt to shift the blame for the misconduct. Bar Counsel sought a greater sanction than the Board's proposed 60 days with automatic reinstatement. The court felt that Bar Counsel's sanction views "carrie[d] some persuasion" but imposed the lenient sanction in the name of deference.

These battles to get the Board to take serious dishonesty seriously are not just of recent vintage. I consider the cases where I challenged the Board's leniency as among the most important ones I handled at Bar Counsel. It is time for this court to take moral responsibility for its bar and to take to itself the authority to determine sanction de novo. Until that happens, an attorney who contemplates bad behavior in the District of Columbia may well conclude that it is an acceptable risk. (Mike Frisch)

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