Thursday, January 22, 2009

Progress Is Our Most Important Product

On display today are three orders (linked here, here and here) of the District of Columbia Court of Appeals in reciprocal discipline matters where the court concluded the proceedings in a bit more than two months. Prior to recent amendments in the court's rules, Bar Counsel would have to file a statement to the Board on Professional Responsibility and the board would then file a report to the court for final action. It could take years even in uncontested matters and (as we have previously blogged) a source of potential board mischief. Now, if the attorney fails to show cause, identical discipline is promptly imposed.

To give a flavor of the prior regime, linked here is a board report from prior to the rule change. The board has to write a ten-page explanation why virtually identical discipline in an uncontested reciprocal disbarment from New Jersey. (Mike Frisch)

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Comments

Congrats, Mike, for your voice being heard in (from?) the wilderness. I hope your carotid artery will feel better!
--Alan

Posted by: Legal Profession Prof | Jan 22, 2009 8:24:16 AM

Don’t you find it even slightly troubling that the three lawyers were disciplined without any finding of misconduct by the Court of Appeals? Indeed, can you even tell me what any of the three lawyers are alleged to have done?

D.C. Code § 11-2502 limits the Court to disciplining an attorney “for crime, misdemeanor, fraud, deceit, malpractice, professional misconduct, or conduct prejudicial to the administration of justice.” By disciplining the lawyers based solely on principles of reciprocal discipline, the Court of Appeals has exceeded its jurisdictional mandate.

Stephen

Posted by: FixedWing | Jan 22, 2009 9:20:41 AM

I wanted to respond to Stephen's comment as he has made a real contribution to this blog in his close readings and commentary on many linked cases.

I strongly believe that any attorney is fully entitled to one fair determination that misconduct has or has not taken place. The attorney is then entitled to appellate review of an adverse finding. The essence of reciprocal discipline is that the attorney has either exercised or waived those rights. The attorney should not be permitted to relitigate the conclusions of the disciplining court.

D.C. Rule XI, section 10 (criminal convictions) and 11 (reciprocal discipline) provide appropriate vehicles to determine misconduct on a summary basis after a determination that a member of its bar has engaged in unethical conduct. Thus, in my view, the court does not exceed its jurisdictional authority by imposing sanctions under either provision.

Posted by: Mike Frisch | Jan 24, 2009 5:56:53 AM

Mike, thank you for the kind words. Personally, I’m just thankful for all of the hard work you put into this blog. It is your efforts which make it possible for me to skim your comments on the cases looking for those that appear interesting. I frankly do not know where you find the hours that you invest here.

I have no objection to the principle of reciprocal discipline provided that the guidelines contained in Selling v. Radford are complied with. In principle, I cannot see any reason why the Court of Appeals itself cannot do this rather than delegating the matter to the Board on Professional Responsibility. I also have no problem with the burden being put upon the lawyer to raise any defences under Selling. So, in principle, I have no objection to the entry of discipline against a lawyer who fails to appear.

I do have some procedural qualms with the District’s new system of reciprocal discipline in that it appears to afford the lawyer very little time to fully brief his objections to discipline before the Court of Appeals. I also have my doubts whether the Court also really intends to comply with Selling or whether they are instead attempting, through procedural means, to implement an automatic reciprocal discipline system. Certainly, they are already doing this though their automatic interim suspension procedure as contained in D.C. Bar Rule XI, § 11(c). The Court of Appeals, being an appellate court, is not well placed for undertaking the sorts of inquiries that a disputed case might entail. But the procedure is very new and I think we must await the outcome of a disputed case before we judge.

However, my problems with the reciprocal discipline process in the District of Columbia is much more fundamental. The Court of Appeals is unusual in that it is an article 1 court. Unlike constitutional courts, it lacks any constitutionally derived powers. So, when you say that D.C. Bar Rule XI, §§ 10 and 11 grant the court jurisdiction, this is flawed. While a constitutionally derived court might be able to delineate its jurisdiction through court rile, the Court of Appeals lacks the power to do so. Rather, the Court of Appeals is strictly limited to the jurisdiction granted to it by Congress. And there is nothing contained in the D.C. Code which could even remotely be viewed as authorising reciprocal discipline.

Under the District’s old system of reciprocal discipline, even in a default case the Board would consider whether the conduct in the foreign tribunal would violate the District’s rules. See D.C. Bar Rule XI, § 11(c)(5). This would fulfil the court’s jurisdictional requirement that it discipline “for crime, misdemeanor, fraud, deceit, malpractice, professional misconduct, or conduct prejudicial to the administration of justice.” D.C. Code 11-2502. The problem with the latest procedure is that in the case of a default, the court is not now making this determination. And without a determination of misconduct, the court has no basis for jurisdiction.

Stephen

Posted by: FixedWing | Jan 24, 2009 10:37:21 AM

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