Friday, August 13, 2010

The Value Of Consent Disposition

The value of conditional admissions/consent discipline is displayed by an order for a 90 day suspension entered today by the Nebraska Supreme Court. The charges were fully resolved almost six months to the day after the filing of the charges.

The attorney was retained to pursue a child custody modification for a client who wished to move to Nevada. The attorney learned that another firm lawyer was suing the client in an unrelated matter. Although the attorney told the client, he also said they could "work around it" and failed to get informed consent to the conflict. He thereafter failed to timely file a witness list and was discharged by the client.

In a jurisdiction where consents are not allowed or disfavored (read: the District of Columbia), a case like this could take years to resolve and use resources that would be better directed to contested matters. Such a result benefits both the accused attorney (who does not have to suffer through years of unresolved bar issues and uncertainty as to result) and the public, which has an interest in prompt and fair bar disciplinary processes.

Just a thought. Not a sermon. (Mike Frisch)

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I agree with this and especially as regards the wisdom of such a policy.

There is one slight difference between the District of Columbia and states which could present a problem and that is that the District's statute is jurisdictional. In re Kerr, 424 A.2d 94, 98-99 (D.C., 1980) citing Palmore v. United States, 411 U.S. 389, 397, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973). D.C. Code § 11-2502 limits the Court to disciplining an attorney “for crime, misdemeanor, fraud, deceit, malpractice, professional misconduct, or conduct prejudicial to the administration of justice.” So there must be evidence that one of these events took place so as to demonstrate that the Court has subject matter jurisdiction. Obviously, this could be done though some sort of factual statement contained in the plea agreement.


Posted by: FixedWing | Aug 13, 2010 8:32:43 AM

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