Friday, October 1, 2010

Doing The Right Thing

If you want to get a sense of what is wrong with the attorney discipline regime in the District of Columbia (and do not wish to read my article on that subject in the Georgetown Journal of Legal Ethics), check out a decision issued yesterday by a unanimous three judge division of the D. C. Court of Appeals.

The court had earlier remanded the case for a sanction recommendation in light of a decision that had imposed disbarment for lying to disciplinary authorities. After remand, the board recommended disbarment. The court agreed that disbarment was warranted.

The court rejected the position of its Board on Professional Responsibility that a board order was a necessary precondition to a finding that an attorney has engaged in conduct prejudicial to the administration of justice for failure to cooperate with a Bar Counsel investigation. The court affirmed findings of serious dishonesty to clients in two immigration matters and to the discipline system. The court also squarely rejected the attorney's due process claims.

The court cited cases from the dawn of time (1982 and 1988) for the proposition that failure to respond to a bar counsel  inquiry violated the rule.

The board had relied on a 1989 rule amendment that gave Bar Counsel the option to seek a board order compelling the response of a non-cooperating attorney. At the time, the board submitted comments to the effect that such a rule amendment was unnecessary as Bar Counsel had always had the authority to bring such a charge. Inexplicably, the board's view changed over time, and the "may seek an order" language of the 1989 rule morphed into a "must seek an order" precondition. The board's present position foundered on the shoals of the its own views at the time of the amendment, the well-established case law and the plain language of the rule.

Why did the board take this position? Why did a rule amendment that was deemed superfluous in 1989 evolve into an absolute requirement? In my view, the answer is that the assertion of its authority has a higher value than the swift investigation and prosecution of unethical attorneys. This seems to work quite well for accused members of the D.C. Bar.

Kudos to the court for cutting through to the heart of the issue and crafting an opinion that favors the public interest over the parochial concerns of the profession. The court wisely rejected the board's claim of authority without any critical language of the board's motives (which is left to us bloggers). (Mike Frisch)

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