Sunday, April 6, 2008
I have now had the opportunity to study the new Rule XI (rules governing bar disciplinary procedure) provisions that were issued last Thursday by the District of Columbia Court of Appeals. Overall, it appears to me that the court did not blindly adhere to the proposals of the Bar's Disciplinary System Review Committee (a secretive, highly insular group of bar insiders who, in my view, were more interested in the status quo and the primacy of the Board on Professional Responsibility than in meaningful reform) and thus have made significant improvements to the disciplinary system.
1. The rule on consent dispositions (section 12) strikes a fair balance between the need to give Bar Counsel discretion to resolve matters by agreement subject to reasonable oversight and the public's right to understand the basis for the decision. Unlike the committee's proposal (designed to make consent dispositions impossible as a practical matter), the final rule cuts the board out of the process entirely, removing a level of review. The proposed disposition goes to a hearing committee, which conducts a proceeding (open to the public) that looks like a guilty plea (the hearing committee "shall hold a limited hearing"). The chair may review Bar Counsel's full investigative file in camera and discuss the recommendation ex parte with Bar Counsel. If the disposition is approved, it goes directly to the court for final action. There is no prohibition against consent dispositions in matters of first impression, no prohibition on "plea bargaining" and no review by the board. All of these provisions were in the proposed rule and not adopted by the court, which will thus review consents without the board's intervention. This new rule might actually work. The proposed rule was designed NOT to work.
2. The reciprocal discipline process (which is a significant portion of the cases in the District of Columbia) has been streamlined. If the attorney does not respond to a show cause order why identical discipline should not be imposed, the court will order identical discipline without referring the matter to the board, unless Bar Counsel objects. As a result, only contested matters will go to board. As I would estimate that 90-95% of lawyers will not respond to the show cause, this new rule (section 11) will have a dramatic and favorable impact on Bar Counsel's work load. Bar Counsel can use the resource savings to focus on prosecutions in original matters.
3. The new rule on defaults (where the accused attorney does not appear or participate) was a victory for the committee. In other words, it is useless. Bar Counsel must present its evidence and the accused attorney may seek to vacate the default thereafter. Bar Counsel may as well just prove its case rather than invoke the default procedure. I predict that is precisely what will happen.
4. The court fixed a problem in reciprocal discipline by amending its rules to make clear that sanctions imposed pursuant to authority delegated by a court are entitled to reciprocal treatment. The prior rule required the sanction to come from a tribunal with authority to suspend or disbar, which had led to complications.
5. A new rule (section 9(g)(1-4)) applies when the board recommends suspension with fitness or disbarment. The rule will require the attorney to show cause why interim suspension should not be imposed pending final court action. A useful public-protection measure to get bad lawyers out of practice at an earlier point in time.
In fairness, I must recognize the political courage of the present board. To its credit, the board filed comments with the court opposing the committee's unworkable rule and proposing its own amendments to the consent discipline procedure. I believe that the board's comments were the crucial factor in the rejection of the committee's proposal. I applaud this very important show of independence from the organized bar. It should result in great benefit to the efficient operation of the D.C. disciplinary system. Because one effect should be a significant reduction in the board's workload, perhaps some much needed discipline can be brought to the board's bloated budget and staff.
Overall, the court did a fine job in considering points of view other than those of the review committee. I am most hopeful that these amendments will bring greater efficiency and fairness to the disciplinary process. These new provisions should be welcomed by all concerned with the integrity of the legal profession in the District of Columbia. (Mike Frisch)