Monday, November 26, 2007

I've Got A Secret

I have long held the view that the public should be entitled to any and all information concerning the bar disciplinary process. This view has never been shared by the Bar powers that be in the District of Columbia. In a recent case, a lawyer was charged with failure to cooperate in a disciplinary investigation. Bar Counsel put the underlying complaint into evidence, making it a public document under D.C. Bar rules, absent a protective order. The accused lawyer did not seek such an order and did not participate in the hearing.

The D.C. Board on Professional Responsibility raised the issue for him, requiring that information about the complaint be sealed. Bar Counsel took an exception. The D.C. Court of Appeals held that the attorney had waived any claim of confidentiality and directed that the materials be unsealed. The court declined to address the issue of whether the information should be sealed on the timely motion of the accused lawyer.

This is nothing new for the Board. Several years ago, the Board proposed a secret probation for a lawyer (we called it the "double-secret probation" case). The court rejected the idea that an attorney could be subject to disciplinary supervision without public disclosure of that fact. The case is In re Dunietz, 687 A.2d 206 (D.C. 1996) and is not available in electronic format.

Disclosure: I prosecuted an earlier case involving this attorney. Also note that the D.C. Bar webpage listing this attorney's disciplinary history does not, as it should, provide a link to the Board's report. (It appears that the link to the summary of discipline for the attorney does not work, either). Guess their reasoning is secret as well. (Mike Frisch)

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