Thursday, April 14, 2011

D. C. Rule In Jeopardy

Those who are interested in the fair and efficient operation of the District of Columbia attorney discipline system should take note of a case now pending before the D. C. Court of Appeals. The case raises important questions about the viability of the recently-adopted rule permitting consent dispositions where the agreed-to sanction is less than disbarment. As is usual in matters of fairness and efficiency (or its converse), it is Bar Counsel versus the Board on Professional Responsibility.

The case is In Re Quinne Harris-Lindsey. It has been under investigation since 2002. 

The case involves allegations of misappropriation. Bar Counsel and the accused attorney submitted a consent that conceded that the misappropriation was negligent. A hearing committee held a hearing and recommended a six-month suspension followed by probation. This was the agreed sanction and was fully consistent with prior sanctions for comparable conduct. The matter was submitted to the court. All this was consistent with the procedures for consent discipline.

Unfortunately for all concerned, the Court asked the Board for its views.

The Board's response was to recommend a full hearing on the matter. But that's not all. The Board proposes that the court virtually prohibit consent dispositions in misappropriation cases. In essence, the Board would prohibit any consent dispositions where Bar Counsel must make credibility determinations.

According to its Brief to the Court:

The Board...concluded that where the objective evidence raises serious questions about the respondent's degree of culpability and the proposed sanction would not be justified unless the respondent is deemed credible, the negotiated discipline should be rejected. Only in cases where the respondent's state of mind is clearly corroborated by the extrinsic evidence, and where there is no need to assess the respondent's credibility, is negotiated discipline appropriate. This is not such a case.

Where to start in reaction to this?

 First, if you do not permit Bar Counsel to assess credibility, there's no point in having a consent disposition rule. Prosecutors always must make such judgments. Second, a hearing committee reviewed the matter and favored the consent. This is the independent review contemplated by the rule. Third, Bar Counsel is hired by the Board and serves at its pleasure. If you don't trust the one you have, get one you do trust. Fourth, the case is nearly a decade old. Fifth, there is nothing in the rule that indicates the limitations that the Board suggests.

The Board's approach will likely mean five more years until this particular matter is resolved. I'd be willing to give odds that it won't result in disbarment in 2016.

The conduct at issue dates back to 1995-99.

In D.C., the presumptive sanction for intentional or reckless misappropriation is disbarment. Negligent misappropriation usually draws a six-month suspension. The Board and Court have often found negligence in cases where observers (me, for instance) think the evidence established a greater degree of culpability. A notable example of the Board and Court finding negligence in the face of strong evidence of recklessness (as argued by Bar Counsel) is In re Anderson, linked here.

The great irony (and hypocrisy) here is that, if this matter were tried and Bar Counsel sought disbarment, the Board would (as in Anderson) likely reject the argument and recommend six-months.

One point seems to be that Bar Counsel can do no right. A second point is that the Board's institutional antipathy for consent dispositions (documented in my analysis of the D.C. disciplinary system under the header Plea Bargaining Fetishism) is in full flower.

I understand that implementation of the consent rule has been a bumpy ride to date. Perhaps all concerned (Board, Court and Bar Counsel) share some responsibility for the current mess. Perhaps part of it is a good faith disagreement about the best way to use the process. But, in the end, a rule that gives Bar Counsel no meaningful discretion to evaluate credibility is useless.

Given the glacial pace of D.C. bar discipline, consent discpositions are a necessary tool. I can only hope that the Court sees the light here and decides the case in a manner that will promote, not impair, fairness and efficiency. The Board's approach will gut the one tool given Bar Counsel to resolve cases by agreement and save limited resources for the cases that require a plenary hearing.

You can find the hearing committee and Board reports at this link. You must insert the attorney's full name to access the reports. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/04/those-who-are-interested-in-the-fair-and-efficient-operation-of-the-district-of-columbia-attorney-discipline-system-should-ta.html

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