March 10, 2007
Carolyn Elefant's comment to my Justice Denied post last Thursday has caused me to reflect a bit on my approach to this blog. It may appear to some that I am a lawyer hater who thinks every ethical lapse should be sanctioned without any consideration of the context or circumstances. I wish to make clear that, to the contrary, I love lawyers and the legal profession. My concerns about self-regulation arise when I see lawyers who use their license to abuse clients, opposing interests and the courts and are then excused for serious violations. My passion is particularly intense in the District of Columbia, where I have seen the disciplinary system up close and personal.
The Elgin case was a case where the hearing panel resolved every disputed fact favorably to the accused attorney, to the exclusion of highly persuasive contrary evidence as well as common sense. The committee attacked and revictimized the client/victim, making it clear that one who complains about a lawyer in D.C. risks being pilloried for their trouble. The committee "deliberated" for 2 1/2 years, despite a rule that requires that the report be filed within 60 days. The facts they found were ugly enough-- he caused the client to be sued as a result of an unethical business transaction, concealed and settled the suit behind her back, and used the client's credit card as a personal piggy bank. The lesson there is not the danger of representing friends, but the danger of being a client and trusting your lawyer.
In reading the decision, realize that the recitation of facts is the best spin that can be put on a representation that reflected discredit on our profession. If you want to read the hearing committee report, it is not available electronically even though it is a public document. If you want to know what really happened here, read Bar Counsel's post-hearing brief and you will see the extent to which uncontradicted evidence was ignored. Presumably, these public records are available on request from the D. C. Board on Professional Responsibility at 202-638-4290.
The vast majority of lawyers are ethical persons devoted to the public interest. The profession must show diligence in removing the few bad apples. Justice was denied here. (Mike Frisch)
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Even though I disagreed with the result in the Elgin matter, I don't find your posts about lawyer conduct particularly anti-lawyer. In fact, there are many situations where the bar is too lenient, and excuses conduct that later gives rise to far worse violations. (such as this case described by David Giacalone here - http://blogs.law.harvard.edu/ethicalesq/blame-bar-counsel-for-the-capoccia-scandal/ where he reported an attorney several times for running an unethical debt reduction service, the bar took no action and eventually the attorney defrauded hundreds of clients resulting in a criminal case). I just didn't think that the Elgin case was one of those matters (though as you can probably tell from my other posts on this topic, I tend to be "soft" on unethical conduct, and further, I have a bit of a chip on my shoulder about the bar's differential treatment of ethical mishaps by solos versus large firm lawyers, though I'm working on trying to be more objective in that regard. )
Posted by: Carolyn Elefant | Mar 11, 2007 12:49:35 PM
thanks, Carolyn-- I agree completely that bar discipline is aimed at the solo/small firm practice and is hostile to any attempt to regulate the bar establishment. My article on the D.C. system in the Journal of Legal Ethics makes this point in some detail.
Posted by: Mike Frisch | Mar 12, 2007 8:47:57 AM