Monday, July 2, 2007
I recently commented on a case decided this April by the D.C. Court of Appeals. The court concluded that the Board on Professional Responsibility had failed to consider that a lawyer accused of misconduct had deliberately avoided service of bar counsel's charges. The court directed the board to reconsider its earlier decision to permit reinstatement without proof that the lawyer was fit to practice law.
Well, the board has reconsidered. If nothing else, the response to the remand was prompt. Unfortunately, nothing else can be said in praise of the decision. The board majority picks at the word "indifference" as if it were a scab, taking its penchant for hypertechnicality to new lows. I am reminded of Elaine Benes' comment about Jerry Seinfeld: "Just when I think you are the shallowest man alive, you manage to drain a little more out of the pool." While the electronic version of the report is not yet available, here's the key passage:
too many explanations [for not responding for over six years], other than indifference, could account for [the lawyer's] failure to respond and evasion of service for us confidently to attribute that conduct to indifference toward the disciplinary process. Hopelessness and perhaps despair are far more likely motivators in this case than indifference. [The attorney] was facing a proceeding that could result in destroying his career in the law...unfamiliarity with the procedures and customs that operate in the disciplinary system, coupled with an inhibition, because of financial considerations or embarrassment, or both, to consult a lawyer familiar with those matters might have led [him] to freeze in fear of what he might get into if he wrote a response to the ethical complaint or opened the door to the process server. To choose indifference...over these and other plausible motivations...would...be engaging in speculation...
Heaven forbid that the board majority would engage in speculation while it speculates to beat the band.
The board majority still thinks fitness is not required, unless the lawyer does not respond in the 90 days after the court enters its order. A dissent of the board's chair, joined by two members, is brief: "I do not understand the majority opinion of the remanding court to give the Board the latitude taken by the majority. My reading of the order of remand requires the Board to add a fitness requirement to [the] sanction."
I take little pleasure in constant criticism of the D.C. Board. Perhaps this response to remand provides insight into the basis of my concerns.
Serenity Now! (Mike Frisch)