Thursday, October 25, 2007
The overarching theory of reciprocal discipline is that a lawyer is entitled to one full and fair hearing on whether he or she has engaged in misconduct and, if so, the appropriate level of professional sanction. Once a lawyer is disbarred, disbarment in every other jurisdiction where that lawyer is admitted should follow swiftly and as a matter of course.
A decision issued today by a division of the District of Columbia Court of Appeals ignores this fundamental approach. The lawyer had been disbarred in Maryland for intentional misappropriation of client funds (over a period of two years he had been out of trust in amounts between $174,000 and $421,000) and dishonesty. His claim that the misconduct should be mitigated by his depression was rejected by the Maryland Court of Appeals. The D.C. Board on Professional Responsibility unanimously recommended the identical sanction of disbarment.
The court of appeals purports to "accept" that recommendation but, rather than actually disbar the lawyer, remanded the case for a determination whether the lawyer was "substantially rehabilitated" from his depression. If so, presumably the disbarment will be stayed and the attorney will be placed on probation.
The decision is deeply troubling to me. Does the court truly wish to create law that will welcome lawyers disbarred in Maryland to practice in D.C.? How can D.C., which conducted no proceedings on the underlying misconduct, fairly evaluate whether this lawyer is substantially rehabilitated? Are the standards for serious dishonesty/intentional misappropriation (a lawyer term that means stealing) really so inconsistent between the two jurisdictions that disbarred Maryland lawyers will be permitted to simply relocate their practice to the Nation's Capital?
I haven't encountered too many lawyers who engaged in aggravated misconduct who did not have an excuse or explanation such as depression. If that is all it takes for mitigation, D.C. will become the lawyer probation capital of America. I hope and expect that Bar Counsel will seek and obtain rehearing or rehearing en banc of this decision. (Mike Frisch)