Tuesday, August 11, 2009

Serious Interference?

The District of Columbia Board on Professional Responsibility has recommended an 18 month suspension with fitness in review of a hearing committee's findings in five consolidated complaints. The hearing committee had proposed a suspension of four months. The attorney had a prior disciplinary history and had offered similar excuses for past neglects.

Of particular interest is the board's discussion at pages 20-23 of the rule that prohibits conduct that "seriously interferes with the administration of justice." The attorney had been ordered to honor a fee arbitration award to a former client. He promised to do do. He did not honor the promise.

The board concludes that there was no interference with the administration of justice because the arbitration was over when the conduct took place. As the arbitration panel had no further authority to act, the administration of justice was not prejudiced. To me, this is flat wrong. Failure to pay an arbitration award or honor a promise to do so clearly has a direct and substantial impact on the bar's process and thus violates the rule.

The board's longstanding antipathy to the rule led to the court's three-part test in In re Hopkins, 677 A.2d 55 (D.C.1996). The conduct must be improper, bear directly on an identifiable case or tribunal and taint the administration of justice in more than a de minimus way. I think that the conduct meets the test and the fact that the tribunal no longer had jurisdiction is irrelevant. the board takes pains to distinguish obedience to its own orders from the bar's arbitration award process.

Note that the D.C. version of Rule 8.4(d) prohibits conduct that "seriously interferes" with the administration of justice rather than "is prejudicial" to it.

The link that will take you to the board's decision is here. The case is In re Karl Carter. (Mike Frisch)


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