Tuesday, August 2, 2011

Another Nail In The Coffin

Another day and more proof that consent discipline will never work in the District of Columbia.

The case is In re Lorenzo Fitzgerald. According to the Board on Professional Responsibility, the misconduct involves "prolonged failure to deliver the record of a criminal trial to successor counsel and dishonesty and non-compliance during Bar Counsel's disciplinary investigation."

A hearing committee recommended acceptance of an agreed sanction of a six-month suspension with all but 60 days stayed, and one year of probation. Unfortunately (and as has been the case too often), the Court of Appeals sought the views of the BPR. As always, the BPR wants the court to reject the disposition:

This case illustrates the importance to negotiated discipline of (1) a record that clearly and completely sets forth all of the relevant facts and circumstances, and (2) an analysis that explains the relative seriousness of the misconduct in context and how the particular recommended sanction maintains the integrity of the legal profession, protects the public and the courts and deters other attorneys from similar misconduct. Here, the Petition was deficient in both respects, and the errors carried through to the Hearing Committee’s report, prompting questions from the Court. The result has been an unnecessary burden on the disciplinary system and needless delay.

 The BPR report makes a couple of points. One is a concern that insufficient attention was given to a mitigating factor--the impact of the shooting of the attorney's wife in their home on the misconduct. The other is the "failure in this case to explain why the misconduct occured..."

As to the first point, note that the attorney was represented by counsel devoted solely to his interests. His counsel was fully capable to present any mitigation. As to the second, the hearing committee conducted a proceeding and issued a 21-page report. That's enough explanation of the why for me.

If the BPR wants to better understand the source of  "unnecessary burden and needless delay," I am willing to invest in a mirror for their use.

The BPR also expresses concern about the need for "transparency" in the D.C. disciplinary system.

After over 27 years of working in and observing the D.C. bar disciplinary process, let me assure the reader that the BPR couldn't care less about transparency. If it did, I've got about 20 ideas on how to bring  greater transparency to the process, starting with public access to dismissal letters. They could also (1) publish an annual report of their activities (as do most bar disciplinary systems, for example, New Jersey and  Maryland) and (2) explain how they spend over $7 million a year of bar dues.

The hearing committee and board reports can be found at this link. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/08/another-day-and-more-proof-that-consent-discipline-will-never-work-in-the-district-of-columbia-the-case-is-in-re-lorenzo-fi.html

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Comments

Even today you will not lay blame where it really belongs.

The District of Columbia is not a democracy. The people lack the power to affect change. Instead, Congress has dictated that the judges of the Court of Appeals are charged with regulating the legal profession. The judges alone are responsible for setting up and protecting the Board of Professional Responsibility. As you well describe, this system is wasting the legal profession’s (and ultimately, those who pay their bills) money and returning totally unacceptable results. And, as you’ve described elsewhere, this is a system that favours those in power, for example, the judge’s ex-colleagues at the large city law firms, at the expense of those who lack power, for example, small practitioners. The judges implemented this system and they could put a stop to it tomorrow if they really wanted to. But they don’t. Instead, they are happy to collecting their lifetime salaries and actually doing very little indeed.

So please stop blaming the foot solders in this and start blaming those who are charged with the responsibility of doing something and actually have the power to affect change.

Stephen

Posted by: Stephen Williams | Aug 3, 2011 5:55:42 AM

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