Wednesday, July 28, 2010

Report But No Recommendation

The District of Columbia Board on Professional Responsibility has issued its report in the G. Paul Howes matter. The case involves findings that the attorney, while an Assistant United States Attorney prosecuting high-profile drug and murder conspiracy cases, improperly used witness vouchers to pay individuals and violated the duty to disclose potentially exculpatory evidence. Our prior coverage, linking to an article in the National Law Journal, is linked here.

The real news is that (for only the second time in history, I believe) there is no majority recommendation as to the appropriate sanction. There are four votes for disbarment, three votes for a three-year suspension with automatic reinstatement and two votes for a one-year suspension. Thus, there is no presumptively correct sanction from the board to which the D.C. Court of Appeals owes deference. The court by rule defers to the board on sanction so long as the recommended disposition is consistent with prior sanctions for comparable conduct and not otherwise unwarranted.

Here, the court has no recommendation to which any deference is owed. To my knowledge, the last time there was no majority board report was when the board split 4-4 as to the proper sanction for intentional misappropriation. The court eventually went en banc in that case (In re Addams) and held that disbarment was the proper sanction for such misconduct absent exceptional circumstances.

At the time (July 1988), there were cynics (count me among them) who thought the split was an intentional result designed to pass the buck to the court. I myself like the idea of the court taking more responsibility for setting the standards for ethical attorney behavior in the District of Columbia, so I am not deeply offended by the concept. Indeed, if I had my druthers, the first procedural rule I would abolish is the deference rule, which is grounded in the (in my view erroneous) assumption that practicing lawyers know more about sanctioning attorneys then the judges of the court.

The sound you hear in this case may well be the sound of that buck again getting passed.

Stay tuned.

Update: You should be able to now access the board report by going to this link and searching under Paul Howes. (Mike Frisch)

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