Thursday, October 23, 2008

The Futility Of Remands

As a D.C. bar prosecutor and now interested observer of bar discipline, I have never seen a situation where a remand from the D. C. Court of Appeals to the Board on Professional Responsibility served any purpose other than delay. The Board on remand uniformly reasserts its previously held view of the matter and submits a new report that at best can be described as unhelpful to the court.

The above assertion is exemplified by a decision issued by the court today. The case involved an attorney who had evaded process in the bar case. In its original report, the board made up hypothetical excuses for the conduct ("The noises that [the process server] heard inside the house might have been coming from a minor not authorized to accept service, someone who had no idea who was at the door and declined to open the door to an unannounced stranger, or for aught we know, an animal") and declined to recommended that the lawyer prove fitness to practice in order to be reinstated. The court remanded, seeking a fresh recommendation in light of its conclusion that the attorney had deliberately evaded service.

The Board on remand "purported to follow the court's instructions" (the court's words) but in fact simply continued to make up excuses for the lawyer devoid of any basis in the record, concluding that the evasions were the product of his "[h]opelessness and perhaps despair." In today's decision, the court states that Bar Counsel's arguments that the Board engaged in the speculation condemned in the remand "have a great deal of force...There is no doubt that the Board followed our instructions grudgingly. The excuses it posits for [the lawyer's] failure to respond are merely hypothetical and unsupported by any input from [the lawyer] himself." Nonetheless, the court adopted the revised recommendation of the board as to sanction.

The court's criticism of the board here is unusually blunt and pointed, as well as entirely justified. I long ago learned that you can lead a horse to water, but you can't make him drink. (Mike Frisch)

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In effect, the Court *did* include a fitness requirement.

I am more troubled by the third footnote which clearly demonstrates that three members of the Board fundamentally misunderstands its roll in a disciplinary proceeding:

>>> Three members of the Board dissented from the recommendation, opining that “the order of remand requires the Board to add a fitness requirement to Respondent’s sanction,” and that the majority therefore had exceeded its authority by failing to impose the requirement. >> Because its doubt about Godette’s fitness to practice law was not “sufficiently serious . . . to erect a roadblock to his ever practicing law again,” the Board recommended the same disciplinary measures as before….<<<

It is easy enough to point to the Board as being the problem. But let’s not forget, these problems have existed for years yet the Court itself rebuffs every effort to bring change. The Court has the Board that it wants.


Posted by: FixedWing | Oct 23, 2008 8:51:29 AM

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