Thursday, March 20, 2008

The Public Speaks

A relatively recent (and much needed) improvement to the web page page of the District of Columbia Bar provides ready access to the reports of hearing committees in bar discipline matters. A case decided today by the D.C. Court of Appeals imposed an 18 month suspension with automatic reinstatement of a career Assistant United States Attorney who had submitted false evidence in his own child support case. The court adopted the proposed sanction of both the hearing committee and the Board on Professional Responsibility. The hearing committee majority had rejected Bar Counsel's request for a fitness showing prior to reinstatement. Unfortunately (in my view), Bar Counsel did not press the point before the board.

What is interesting is the hearing committee report itself. The two lawyers agree on sanction, finding that automatic reinstatement is in the public interest because Bar Counsel failed to show clear and convincing evidence of a serious doubt regarding fitness to practice. This is the so-called Cater standard, which I criticized in my article on the D.C. disciplinary system. This case shows how this laughably legalistic formulation can be used to frustrate the overarching goal of any disciplinary system, which is protecting the public from unfit lawyers. As I had predicted, it permits the system to justify leniency as a supposed failure of Bar Counsel to meet its burden of proof.

Notably, the non-lawyer is having none of this lawyerese mumbo jumbo and rightly complains about the leniency of the sanction: "Remorse does not, by itself, demonstrate [his] rehabilitation... only that he is aware he did wrong... Any recommended sanction should accurately reflect the seriousness of the offense. Eighteen months does not, in this case, achieve that goal." I suppose one needs to become a lawyer to unlearn such common sense.

A lone voice of reason in the wilderness, as usual, goes unheard. But at least it can now be seen. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/03/a-relatively--1.html

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