Thursday, April 19, 2012
As some may know, I was a bar prosecutor in the District of Columbia from 1984 to 2001. You may also be aware that I previously have expressed concerns about the D.C. bar discipline system.
In particular, my concerns have centered on the most powerful player in the system --the Board on Professional Responsibility ("BPR"). In sum, I have long held the view that the BPR as an institution cares a lot more about protecting the "parochial or self-interested concerns of the bar" than its stated mission to protect the public from unfit attorneys.
A case will be argued at 9:30 this morning before the D. C. Court of Appeals that brings this issue to center stage. The argument can be accessed in real time at this link. It will be held in the main courtroom.
The attorney was convicted of theft in South Korea. The theft took place on a flight from the United States to South Korea. Bar Counsel reported the conviction and, after receiving briefs, the Court entered an order suspending the attorney and directing the BPR to determine whether the crime involved moral turpitude.
The BPR decided something quite different. It decided that a foreign conviction is entitled to no weight as a matter of bar discipline. Not this conviction --all convictions.
As far as the BPR is concerned, a D.C. bar member convicted of embezzlement in the United Kingdom need not fear any disciplinary consequences here that flow from the conviction. Likewise a Canadian murderer. The BPR essentially wants Bar Counsel to have to retry the foreign criminal case before any sanction can be imposed.
Since Bar Counsel has subpoena power of 25 miles from the District, good luck with that.
In its brief to the Court, the BPR argues that, if the court rejects the preferred option of completely ignoring a foreign conviction, then it should be "especially skeptical and demanding" in its treatment of such convictions.
Sure it should --if the goal is to provide maximum protection to convicted lawyers. If the goal is to protect the public and uphold the integrity of the legal profession, not so much.
The globalization of law practice makes this problem more than a theoretical one.
The Court's rules state that
The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.
The BPR approach would turn this proclamation into a form of false advertising.
The BPR report can be found at this link. The attorney's name is Jinhee Wilde.
I must confess that I have not previously encountered the Doctrine of Especially Skeptical and Demanding, although I think it accurately captures the BPR's attitude toward effective regulation of the District of Columbia Bar.
I only hope that the Court has a different view of its obligation to uphold the integrity of the legal profession. (Mike Frisch)