Saturday, May 12, 2007

Proof of Fitness

The D. C. Court of Appeals will hear oral argument in In re Lea next Tuesday. A hearing committee found that Lea had failed to respond to lawful demands for information from disciplinary authorities, conduct prejudical, and failing to comply with Board orders to respond. There were attempts to get a response to Bar Counsel for over a year. The attorney still has not responded to the initial complaints after unfulfilled promises dating back for literally years. The hearing committee recommended that the attorney be required to prove fitness prior to being permitted the privilege of practicing law: "this is a truly egregious case, in which [the attorney] has managed to stonewall the disciplinary system for 3 1/2 years. [The attorney] evinces no sense of responsibility to account for conduct called into question by the underlying complaint."

The D.C. Board rejected the hearing committee's recommendation and has asked the court to permit automatic reinstatement. Yes, and the Board now de facto represents the non-participating attorney before the court, arguing against a fitness requirement despite six years of failure to respond. Bar Counsel and the Board will argue the point before a panel consisting Judges Farrell and Ruiz and Senior Judge Terry.

This case is the first major test of the so-called Cater standard that the Board majority has developed in failure-to-cooperate cases. Note that there were concurring/dissenting and dissenting opinions from the Board report (although the issue is not the fitness standard). Under the Board's formulation, a suspended attorney will be automatically reinstated unless Bar Counsel establishes "clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice." Common sense will not suffice. There are some commentators (well, at least there's me) who think that the "standard" is a hypertechnical attempt to make it harder to protect the public from lawyers who have no business practicing law.

The link to the Board opinion is down. The case is Bar Docket No. 197-01(that means that the investigation began in 2001). The argument can be heard in real time at this link. The case is third on the morning calender. (Mike Frisch)

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