Monday, November 24, 2008

No Lesser Sanction

The District of Columbia Board on Professional Responsibility had recommended reciprocal discipline based on a Florida sanction imposed on Montgomery Blair Sibley. The attorney had been suspended for three years in Florida and must petition for reinstatement. The board here rejects a collateral attack on the legitimacy of the Florida process as well as the contention that the misconduct (intentional disobedience of court-order support obligations and asserting frivolous claims) merited substantially different discipline in the District of Columbia.

In an unrelated reciprocal matter from Massachusetts, the board rejected claims for greater discipline from Bar Counsel as well for lesser discipline from the lawyer, who had made unauthorized payments for his own benefit as general counsel to Houghton Mifflin Company. The lawyer had used the funds to pay his rent and for a summer vacation rental in Rhode Island. Bar Counsel sought disbarment, contending that the strict rule of disbarment for misappropriation applied. The attorney contended that he should get mitigation based on alcohol addiction. The board rejected both claims--the attorney had failed to raise alcoholism in the Massachusetts case--and recommended the functionally-equivalent discipline of a three-year suspension. (Mike Frisch)

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Mr. Sibley can be quite a colourful character. Nonetheless, I am heartened to see that I am not the only one raising due process issues in response to the Districts’ automatic reciprocal suspensions.

The Board argues that a Board hearing is not the appropriate forum to attack the legitimacy of a foreign court. However, whether a court is legitimate goes to the heart of that court’s subject matter jurisdiction. If the court were illegitimate then obviously any order of that court would also be illegitimate. Subject matter jurisdiction can be raised at any time including by collateral attack. Obviously, the Board should have considered Sibley’s subject matter arguments.

Interesting that failure to pay alimony is not actionable for disciplinary purposes in the District yet contempt in a foreign tribunal for failure to pay alimony is actionable. So does this mean that any non-actionable conduct can now be converted to actionable conduct simply through a contempt action? Don’t some of our oldest Supreme Court cases conclude the contempt is not per-se a cause for discipline?

Interesting also that Mr. Bolze supposedly penned this opinion. Is Mr. Bolze now assigned to all cases which challenge the legitimacy of the Board and Court? This opinion is not nearly as sloppy as the opinion in my own case which he also supposedly penned. Which leaves me wondering who actually pens these opinions?


Posted by: FixedWing | Nov 24, 2008 8:57:06 AM

I took a closer look at this report after reading Stephen's comment and agree in part. It appears that the Florida suspension is predicated, in part, on the willful failure to pay child support. As the report notes, the D.C. Rules "do not specifically prohibit" that conduct. thus, the Board was required to address the issue and resolve whether the remaining violations merited the proposed suspension. The board overlooked In re Youmans, where the court imposed reciprocal discipline despite the fact that one of many violations in a New Jersey reciprocal matter did not constitute misconduct in D.C. There, the board and court found that the sanction was justified by the conduct that did run afoul of the D.C. rules.

Posted by: Legal Profession Prof | Nov 25, 2008 5:25:59 AM

How can the Board determine that the sanction is nonetheless justified by the remaining charges without going beyond the conclusions of the foreign tribunal and re-weighing that evidence? This is something that the Court has been very clear over the years that the Board is not allowed to do in a reciprocal proceeding. Surely, once the Board determined that § 11(c)(5) applied, it was required to forward the matter to a Hearing Committee for determination?

The impression I have is that the District’s reciprocal discipline process is really an automatic discipline process which has been wrapped in the verbage of Selling v. Radford so as to maintain the appearance of due process. In reality, little hiccups such as this are almost always ironed away.


Posted by: FixedWing | Nov 25, 2008 8:51:56 AM

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