Tuesday, December 11, 2007

The Public Speaks (In Dissent)

The District of Columbia Board on Professional Responsibility has adopted (and appended) a hearing committee recommendation for a 18 month suspension with automatic reinstatement in a case involving a former Assistant United States Attorney who had been involved in a bitter domestic dispute. The attorney submitted false documents to the tribunal hearing the case. The evidence consisted of altered checks and a false statement that he had paid more in child support than he in fact had. The misconduct persisted for well over a year and the attorney "did not come forward on his own to admit his misconduct; he was caught."

The hearing committee concluded that the attorney had not established disability (or, as we say in D.C., Kersey-style) mitigation but that the overall mitigation justified the proposed sanction. There was conflicting expert testimony as to the extent to which the attorney's depression (which had its genesis in his guilt over his child's suicide with a gun he kept in the house) affected the misconduct. The hearing committee did not impose a fitness requirement because "[t]he Committee sees very little to no chance of the events that took place occurring again." In my view, this a weak rationale given the nature of the misconduct. However, the attorney had suffered a debilitating stroke after the misconduct, which may have playing some role in the Board's decision not to impose fitness (sanction recommended "considering [the attorney's] health situation which suggests little likelihood of [his] returning to practice in the foreseeable future..."). This justification to forego a fitness hearing holds even less water for me. If there are physical, as well as moral, reasons to have serious concerns about an attorney's fitness to practice, then such an inquiry is all the more important and in the public interest.

Notably, the public member of the hearing committee dissented, finding the relative leniency unwarranted. This is why having public members (i.e. non-lawyers) is a good thing for bar discipline. The case now moves to the Court of Appeals for final action. (Mike Frisch)

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