Monday, January 5, 2009

Deliberate Dishonesty Draws Actual Suspension

The District of Columbia Court of Appeals rejected as unduly lenient a sanction proposed by its Board on Professional Responsibility in a case involving neglect and dishonesty. A hearing committee had found that the attorney was not credible in his testimony before it. The board had discounted that conclusion as a significant aggravating factor and recommended a stayed suspension with probation. The court sustained Bar Counsel's exception in favor of a 60 day suspension with 30 days stayed plus probation:

While the Committee's report is susceptible to either [bar counsel or the board's] interpretation, we are satisfied that [the attorney's] deliberate dishonesty in his dealings with Bar Counsel, when combined with the other aggravating factors present in this case, justifies imposing the greater sanction...[a suspension] is an appropriate sanction here, particularly in light of [his] lack of candor at the hearing, his lack of remorse, and the prejudice he caused his client balanced against his minor disciplinary history.

I'm gratified that this case was not remanded. Some recent remands may have persuaded the court that there is merit to to getting a case decided and that remands do nothing but delay resolution. Also gratified that the court was not persuaded that attorneys have a virtual right to lie in a bar discipline proceeding without real consequences. Note that only Bar Counsel presented oral argument; no appearence from either the attorney or the Board. (Mike Frisch)

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Do cases where one of the parties fails to appear make for good law? These cases are often decided with no appearance by the respondent and then a significant holding is anounced. Subsequently, the uncontested case is later cited for that significant holding. I think cases like this one make for poor law.

Nonetheless, it is clear that the Court of Appeals decided the case on a legal point and not a factual issue so I see no reason why it should have been sent back to the Board. Plus, why bother sending a case back for reconsideration when the attorney did not even bother to appear?


Posted by: FixedWing | Jan 5, 2009 7:46:16 AM

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