Thursday, July 23, 2009

When In Doubt, Disclose

The District of Columbia Court of Appeals imposed a three year suspension of an attorney as reciprocal discipline for a suspension of that same length in Virginia. The misconduct involved a failure to disclose information in the Virginia bar admission questionnaire while waiving in from Pennsylvania. The applicant had been charged with murder in Jamaica while on leave from his duties as an infantry officer in the United States Marines. He was tried and convicted of the lesser offense of manslaughter and sentenced to two years imprisonment at hard labor.

He had failed to disclose the conviction despite a specific instruction on the application to the effect that, if there is any doubt, report. In the Virginia proceedings, he claimed that he had relied on advice from an unidentified Pennsylvania bar employee that he had no duty to report the outcome of a matter before a "kangaroo court." He also presented evidence that the police inspector who investigated the criminal matter had sought a bribe to drop the charges. As the court here states, the Virginia hearing tribunal was "[u]nderstandably not impressed by these representations..." The obligation is to report and give the admitting authorities the opportunity to decide the impact of the incident on character and fitness. (Mike Frisch)

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What meaning is there really to the statement “when in doubt, report”? Does this instruction change the question in some way? Or change the burden in some way? Or create some sort of new standard?

The bar examining committee should be able to formulate questions which are clear as to their application. Surely any ambiguity will be held against the questioner and not the person answering the question? It seems to me that the “when in doubt” instruction is simply an attempt by the committee to transfer that duty to be clear to the person answering the question.

Fortunately, in this case it appears that the question was clear and the application simply lied.

But maybe this is a wrong assumption? We are examining the report of the District of Columbia Court of Appeals on a reciprocal matter. That jurisdiction never considered the facts. This is all second-hand. The only issue that the D.C. system examined was whether there were any exceptions to reciprocal discipline. This seems to me to be a dangerous way of analysing the underlying facts in a case.


Posted by: FixedWing | Jul 23, 2009 10:11:29 AM

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