Friday, May 20, 2011

A Mortal Blow?

The District of Columbia Court of Appeals has inflicted what I fear to be a death blow to the cause of consent bar discipline by agreeing with the recommendation of its Board on Professional Responsibility to reject a one year suspension with six-months stayed in a matter where Bar Counsel and the Respondent attorney had agreed that the evidence established negligent misappropriation. Notwithstanding a hearing committee's favorable recommendation, the court had concerns that the evidence might warrant more severe discipline.

The decision consigns the case back into the abyss of the D.C. bar disciplinary system, likely not to be heard from again for years. The attorney will be able to continue to practice for those many years and will (in my humble view) get nothing more as discipline when 2015 rolls around.

Notably, the conduct at issue was concluded by 1999 and has been under investigation by Bar Counsel since 2002. No need to rush to judgment here.

I know that the board cares not a whit about delay in disciplinary matters and fails to comprehend the benefits of the exercise of prosecutorial discretion. I had hoped that the court would have the merits of consent discipline in mind. At least in this case, the board won. I am confident that the board's office is popping champagne corks to celebrate their victory over common sense and efficiency.

All that was lost is the most important tool needed for moving cases to a prompt and fair conclusion.

Under D.C. law, an attorney found to have engaged in intentional or reckless misappropriation faces presumptive disbarment. Negligent misappropriation draws a sanction like that proposed here. My substantive concern is with the various holdings in past cases of misappropriation, which make the distinctions at issue here as clear as Mississippi mud.

I'd have a lot more sympathy for the position of the court and the board if either tribunal made these distinctions sufficiently clear for meaningful application.

There is much more to this story and I feel a law review article coming on. I also am profoundly grateful that I no longer work in a broken and dysfunctional system that purports to protect the public.

One thing is clear--it is easier for a criminal defendant to plead guilty to felony crimes in the District of Columbia than for an attorney to agree to a disciplinary offense where the sanction is less than disbarment. There is something deeply wrong about that state of affairs. (Mike Frisch)

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