Friday, December 19, 2008

Why I'm Glad I'm No Longer A Bar Prosecutor

A District of Columbia hearing committee has concluded that an attorney did not violate Rule 8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation) in answering a written question on an application for temporary legal employment that asked:

Have you ever been disbarred, or been the subject of disciplinary action by any State or local bar association or committee? If yes, please specify circumstances and dates...

Answer: No.

At the time, the attorney was the subject of a recommendation by the Board on Professional Responsibility of disbarment with all but 30 days stayed.  Shortly after the answer was given, the court imposed the recommended sanction.

The hearing committee found that the attorney had answered "in subjective good faith" with "no intent to deceive" because she had interpreted the question to only address final discipline imposed. Her "subjective interpretation of the application question was objectively reasonable." (Italics in original.) Further, the committee accepted her testimony that she had told the interviewer of the proposed discipline, which the interviewer had denied: "we find the [interviewer's] testimony unpersuasive and unworthy of belief...[the testimony] was speculative and self-serving. [The attorney's] version of the conversation...rings more true."

Nice for the hearing committee to find, in aid of its conclusion, that a disinterested witness who was trying to help the bar deal with an allegation of misconduct was a liar. And, I guess, the attorney's testimony as to the supposed disclosure of the impended discipline wasn't "self-serving."

Oh, the original misconduct involved misappropriation of entrusted funds and false statements to Bar Counsel. Those inconvenient facts go unmentioned in the report. (Mike Frisch)

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And also why SHE is glad you are no longer a bar prosecutor.

Posted by: Alan Childress | Dec 19, 2008 10:24:15 AM

I agree completely that the Board’s legal analysis relating to respondent’s answer to the questionnaire is just plain silly. How can that question be read in any other way than asking whether the respondent was “subject of disciplinary action”?

The only way that she might possibly have been able to answer “no” is if the Board process in an original proceeding is not considered a disciplinary action. In the case of a reciprocal matter, the proceeding is started by a court show cause order. So the disciplinary process has commenced when the show cause order is issued. If an original proceeding is begun in the same way, then certainly the respondent is the subject of a disciplinary proceeding. But if the Board process is just an investigatory process, and it is the Board’s recommendation to the Court which begins the formal disciplinary process, then respondent would not yet be the subject of a disciplinary proceeding. Usually it is the prosecution that is arguing that the formal process has not yet begun when it is defending against the accusation that the charges have been amended subsequent to the commencement of the proceeding (In re Ruffalo). But this question can play both ways.

I have much more trouble with your analysis of the Board’s factual determinations. Someone has to consider and determine the factual issues and the Board did just that. Arguments that they got it wrong simply amount to second guessing their determinations. Obviously there is always going to be someone that doesn’t like the way a trier of fact determines an issue. In this case, I think that the Board does a good job of explaining why they concluded as they did. For example:

>>> Goldt admitted that she had only a vague recollection of the interview and could not recall what Respondent told her during that session. Tr. 161-62 (Goldt). In effect, Goldt based her testimony on her self-proclaimed interview practices; she asserted that, had Respondent told her about the pending disciplinary matter, it would have raised a “red flag” in Goldt’s mind: “I know for a fact that any of those words would have raised a red flag . . . . So no, I do not recall her saying any of those terms, using any of those terms.” Tr. at 127(Goldt). <<<

On the whole, I felt that the Board had explained itself sufficiently and that their conclusions were not clearly erroneous. But that’s just my reading of the opinion.


Posted by: FixedWing | Dec 19, 2008 11:44:12 AM

As to self-serving, consider ex-prosecutor Mike Frisch's position that the State Bar should presume the truthfulness of a third-party witness who volunteers testimony for the prosecution. The most charitable interpretation of Mike's position is it voices remarkable naivete about witnesses' motives.

Posted by: Stephen R. Diamond | Apr 24, 2009 12:05:57 AM

After 35 years of practice and teaching, I've been called a lot of things, but naive is a new one.

Posted by: Mike Frisch | Apr 24, 2009 5:27:44 AM

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