July 14, 2008
Ignoring Arbitration Award Not Unethical
A hearing committee of the D.C. Board on Professional Responsibility has recommended a four month suspension with reinstatement conditioned of proof of present fitness of an attorney for misconduct that included incompetent representation that had harmed clients, false statements to Bar Counsel and a court, and failure to cooperate with the disciplinary investigation. Post-hearing, the attorney had claimed due process violations in that (1) an expert retained by Bar Counsel had advised his former client to sue for legal malpractice (2) the assistant bar counsel and he "had known each other well in the past" and "is perhaps too close to the case and should have recused himself" and (3) the assistant bar counsel had made reference to the disciplinary record of his retained counsel. The committee found no merit to these contentions in recommending the sanction.
The decision actually is worth a close read, as the committee parses through a laundry list of charged violations, finding some and rejecting others. They seem to say that Bar Counsel needs to present expert testimony to sustain a lack of competence charge, but later acknowledge that the lawyer took fees and did nothing to earn them, which sounds like a Rule 1.1 violation. The committee also concludes that the failure of the lawyer to honor an arbitration award is not conduct that seriously interferes with the administration of justice in violation of D.C. Rule 8.4(d). This result may be correct in light of a prior precedent--In re Hopkins--that is described in the opinion. However, I think that this legal conclusion reveals the error of the mechanistic "elements of the violation" approach of the Hopkins case. (Mike Frisch)
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