Thursday, April 19, 2012

Lawyers Regulating Lawyers Works Well For Lawyers

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)

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Comments

The Law Society of Upper Canada (Ontario) Hearing Panel recently rejected this argument. Here's the url to the case report at CanLII http://canlii.ca/t/fndh3

Posted by: Steve | Apr 19, 2012 6:33:18 AM

Mike,

Firstly, I do not understand why you highlight this specific case as bringing to the issue of the power of the BPR to centre stage. I read the BPR report and all that I see is a body doing its best to interpret law in an expanding area. And, as you know, I’m hardly a friend of the BPR.

In any event, the fact is that I did previously attempt to bring to centre stage the issues you highlight, and more. The result was the Court of Appeals taking ever opportunity to suppress my arguments and avoiding them by refusing to even acknowledge that those arguments had even been made. See In re Williams, 3 A.3d 1179 (D.C., 2010), cert. denied, 132 S. Ct. 1010 (2012).

You continue to highlight the BPR as the culprit here. I understand that as you spent years arguing before, and being frustrated by, the BPR. But as I’ve said before, the real culprit here are the judges of the Court of Appeals who both make and implement the rules. They set this system up and they could change it any time that they wanted to but for some reason they don’t. I wonder why. And I wonder why you continue to effectively give the judges a free ride.

As to this specific case, your arguments are morally persuasive. But the BPR relies upon an interpretation of their subject matter jurisdiction and that interpretation seems quite persuasive to me. Surely you are not arguing that they should ignore their jurisdictional limitations so as to achieve a desired result? This sort of results based interpretation of the law embodies much that is wrong about the District’s current attorney discipline system. Clearly, the proper approach to this is for the Court of Appeals to modify their rule so as to achieve the desired result (the protection of the public) after taking account of arguments such as yours.

As to the issue of whether foreign courts judgements should be given full faith and credit, which is essentially what you argue, I definitely have a problem with that. I have been in some pretty horrendous places which outwardly have full legal systems but in reality, the courts are just a political tool for those in power. But then I have also been in other countries where the rule of law is fundamental. My personal opinion is that every case need not be retried here in the District of Columbia but that a respondent should be afforded a legitimate opportunity to demonstrate the lack of due process in the foreign proceeding (a la attorney reciprocal discipline). Indeed, we currently have no court which is charged with seeing that federal law, including federal constitutional law, is complied with by the states. Consequently, I also see no reason why an attorney should not be afforded a similar opportunity even on a domestic conviction.

Do you happen to have the briefs that were filed in the Court of Appeals on the issue of the interim suspension? Taking briefs and considering the suspension rather than automatically implementing the suspension runs afoul of In re Downey (http://www.dccourts.gov/internet/documents/08-BG-1160+.PDF). But then, Downey also runs afoul of the constitution. Not to worry though as there is no court charged with assuring that the Court of Appeals affords accused their constitutional rights so that’s ok.

Stephen

Posted by: Stephen Williams | Apr 23, 2012 9:47:27 AM

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