Thursday, June 25, 2009

Upping The Ante

The District of Columbia Court of Appeals imposed the substantially different discipline of a 30 day suspension in a reciprocal matter from Virginia. The attorney had made false statements in a certificate of service and in open court and misleading representations to Bar Counsel. The Virginia State Bar Disciplinary Board had imposed an admonitions with terms.

The court concluded that Bar Counsel here met its burden to establish by clear and convincing evidence that a more severe sanction was appropriate: "Our case law is replete with instances in which we have suspended attorneys who have engaged in acts of dishonesty, and there should be no doubt that a suspension from the practice of law is substantially different from an admonition. We recognize that [the attorney] has no prior disciplinary history, but his conduct involved serious acts of dishonesty for which a thirty-day suspension is appropriate." (Mike Frisch)

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I personally found footnote 2 to be the most interesting facet of this case.

As the court makes clear, it is only that the matter happened to be referred to the Board prior to the implementation of the current rules that makes discipline possible. If the matter had been considered under the court’s current rules, then discipline would have been precluded. The court stated that it perceived no unfairness but a determination which is simply a matter of happenstance appears to me to be the very definition of unfair.

While one might argue that the attorney should not have been disciplined in this case, my own opinion is that this situation highlights a problem with the current rules. If this discipline was appropriate in this case, and the court clearly believes that it was, as do I, then is it really appropriate for the court to shirk its obligation to examine each of these cases to determine whether discipline is need to protect the public? I think not.


Posted by: FixedWing | Jun 25, 2009 6:28:29 AM

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