Tuesday, July 29, 2008

Whither Comity?

On August 1, the new rules for disciplinary enforcement will go into effect in the District of Columbia. One of the new provisions will largely (and mercifully) take the Board on Professional Responsibility out of the reciprocal discipline business. Identical discipline will be imposed promptly if neither the disciplined attorney or Bar Counsel seeks different discipline in response to the court's show cause order. One hopes that this rule change will be the death knoll of ill-considered and indefensible decisions  like one issued last week.

The case involved neglect of an asylum matter. The attorney had mishandled the case, moved for reconsideration and advised the client of the missteps. Massachusetts investigated the case fully, resulting in a reprimand that was reported to D.C., where the attorney was admitted but on inactive status since 1999  (read: has absolutely no practice in D.C.). 

Now, in order for the board to recommend substantially different discipline, it must determine that reprimand is outside the range of sanctions for "comparable misconduct." Here, the board purports to look only at cases involving neglect of immigration matters, which is error. Comparable cases are those that involve neglect findings, and is not limited to evaluation of cases in the same practice area. The board here ignores a wealth of cases involving neglect that imposed sanctions as light as an informal admonition and recommends a 30 day suspension. The board notes that the neglect was "not pervasive and did not evidence abandonment" and thus, in its view, was not a particularly aggravated form of neglect. The suggestion that neglect of a single matter on the part of an attorney who fully cooperates with the disciplinary process would inevitably draw a suspension in an original D.C. matter is nothing short of ludicrous. This recommendation is both legally indefensible and pointless as the lawyer has no D.C. practice.

When I was at Bar Counsel, I spent a lot of time fighting board reports that  proposed such mischief (often reducing serious suspensions imposed elsewhere). The most distressing aspect of this case is that Bar Counsel asked for it--indeed, they sought a 60-day suspension. I only hope that the rule change puts a stop to this form of second-guessing of jurisdictions that actually conduct the disciplinary proceeding at issue and have primary responsibility for the regulation of a particular lawyer's practice. (Mike Frisch)


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