Thursday, April 23, 2009

The Joys Of Being Bar Counsel

There are times when the often thankless job of disciplinary counsel has its rewards. For me, many if not most of those times involved cases where I had taken an exception and argued a position contrary to that of the D. C. Board on Professional Responsibility. Today, I bask in the reflected glow of a decision issued by the District of Columbia Court of Appeals that rejected the Board's refusal to impose a fitness requirement on a lawyer who had failed to participate in the disciplinary process. The attorney had ignored a Board order and been served by publication. The attorney knew of the charges, as she called in to say she would be late but never personally appeared. She "reluctantly agreed" to participate by telephone.

The attorney did not participate in the matter before the court. The Board's attorney argued that her "avoidance" of her ethical obligations was distinguishable from "deliberate evasion." The court: "We fail to see the distinction." Further, the court found "it difficult to regard [the attorney's] telephone calls as cooperative efforts when...she promised to file a response and failed to do so [and] refused to give Bar Counsel an address at which she could be personally served." One might fairly wonder why the board would feel it appropriate to make excuses for the lawyer on such a record.

The court found the lawyer had evaded service and had otherwise demonstrated "deliberate disregard for the disciplinary process." The court, unlike the board, has a serious doubt about the lawyer, which requires her to prove fitness before reinstatement.

It has always amazed me that the D.C. board has defended, rather than condemned, deliberate indifference to its own processes and orders. The board rejected the hearing committee's fitness recommendation and rejected (improperly, the court found) the hearing committee's credibility findings concerning the lawyer's reasons for "stonewalling" the disciplinary system. Here, the board went so far as to brief and argue on behalf of a lawyer who could not be bothered to do so on her own. Indeed, the attorney had not opposed a fitness requirement before the board after it was recommended by the hearing committee.

Kudos to Bar Counsel for taking (and prevailing on) an exception to the board's recommendation. (Mike Frisch)

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I couldn’t agree more with the sentiments you express. What was the Board thinking? In fact, in one sense, I would go even further.

One of the problems that I see in the District of Columbia is that much of the disciplinary jurisprudence is built upon cases such as this one where the respondent has not even seen fit to appear and defend. I would much prefer that in cases such as this, the respondent was defaulted and that were the end of that. Instead, we now have a 31 page opinion which sets binding precedents for the rest of us in a case where there was no real party-in-interest defending. Good law is not made in a vacuum.

Also, look at the incredible waste of time here. Bar Counsel first became interested in this case in April 2001. Formal charges were filed January 2003. A disciplinary hearing was held February 2005. The dates of the hearing committee and Board reports are not included in the opinion but the case is an “06” so probably the Board report was released in 2006. Finally, the case was argued May 2007 but the opinion was not released until April 2009. Eight years on an uncontested case!

Finally, the opinion does fudge one issue. The attorney was sent a copy of a Rule 11 order. The Court termed this “the complaint”. But since when is a Rule 11 order a complaint? At most, this would be the investigatory phase described in Ruffalo. Bar Counsel did not file an actual complaint until 2003. So the Court’s discussion of the respondent’s supposed dodging of “the complaint” isn’t accurate. And ultimately, the complaint did not raise any issues relevant to the original Rule 11 order.


Posted by: FixedWing | Apr 23, 2009 12:18:49 PM

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