Thursday, July 12, 2007

Due Process For Lawyers

The Ohio Supreme Court ordered permanent disbarment in a case where the attorney was found to have, among other things, falsified deeds and taken financial advantage of an elderly client. The court rejected a claim that Ohio disciplinary procedures violated due process: "[The attorney] analogizes the disciplinary process to a capital-murder prosecution arguing that the process unfairly precludes a lawyer from first pressing a defense and then choosing to show remorse in mitigation..."

A dissent would find that the attorney's due process rights had been violated, but not for the above-rejected reason. Counsel for the accused attorney lived in Michigan. The night before the scheduled oral argument (Valentine's Day), a snowstorm "wreaked havoc on travel" throughout the mid west. Counsel's flight to Ohio was canceled. Driving conditions were impossible. He promptly called the court seeking a continuance, which was "administratively denied." The dissent would hold that, under the circumstances and given the gravity of the matter, the denial of oral argument amounted to a due process violation.

In D.C., they do give attorneys a bifurcated hearing that allows the "I'm not guilty, but if you find I am, I'm really, really sorry and will never do it again" approach. The hearing committee is not permitted to be informed of prior public discipline against the lawyer until after it has made a preliminary finding that the accused attorney engaged in misconduct. (Mike Frisch)

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