Thursday, January 15, 2009

No Exclusionary Rule In Bar Discipline

A Louisiana attorney was arrested on charges of distribution of marijuana as a result of a purchase by a person arrested on drug charges who set up the buy in exchange for leniency. The trial court suppressed the evidence and the criminal charges were dismissed.

Bar disciplinary charges were then brought for the criminal conduct. A hearing committee concluded that the defense of entrapment in a bar disciplinary case "has a limited place...and evidence obtained as a result of the alleged entrapment would be allowed." In any event, the committee held that the attorney had failed to prove entrapment and that the exclusionary rule does not apply in bar discipline matters. The committee recommends a suspension of no less than a year and a day. (Mike Frisch)

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I find this case troubling.

The hearing committee found that the accused was guilty of the crime despite the prosecutor having determined that there was no evidence to prosecute. They believed that the purpose of the disciplinary hearing was different to that of a criminal prosecution and so they were therefore not bound by the result in that prosecution.

Query, if the accused had been prosecuted and convicted, would he then have been allowed to argue that the purpose of the disciplinary proceeding was different to the purpose of the criminal prosecution and that he was therefore not bound by the determination of guilt in the criminal proceeding? I think not.


Posted by: FixedWing | Jan 15, 2009 10:59:55 AM

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