June 5, 2012
A District of Columbia bar disciplinary case that started out as an informal admonition, which the attorney rejected, has now resulted in a hearing committee recomendation for a two-year suspension with fitness.
The bar case involved two matters, one of which related to litigation between the accused attorney and his residential landlord.
The sanction was influenced by findings that he had given false testimony in the disciplinary proceedings and displayed a defiant and unrepentant attitude
Throughout the course of this disciplinary proceeding, Respondent resorted to some of the same improper tactics that he employed in the underlying matters. For example, he filed a meritless motion to quash a subpoena for documents and records clearly relevant to matters investigated by Bar counsel which he had previously agreed to provide and, after his motion was denied and the deadline for producing the documents had passed, filed a motion seeking to re-litigate the issues already decided...
When asked if he would do anything differently, he testified he would not.
The attorney also walked out of the hearing on the third day and called part of the case "a collosal waste of [his] time."
The case is In re Andre Barber and can be found through this link. (Mike Frisch)
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In re Ruffalo, 390 U.S. 544, 551, modified on other grounds, 392 U.S. 919 (1968), is clear that: “The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.” When the accused attorney is punished for the defence that he mounted in attempting to defend himself, there cannot be a clearer example of the charges being amended and the attorney being punished for the statements he makes in his defence. Since the attorney lacks notice that this is actually what is at issue, the attorney clearly is not afforded notice and opportunity to be heard. Indeed, this is effectively summary adjudication. Unfortunately, it seems quite common for the Board to take this sort of parting swipe at an attorney who challenges the way that that body undertakes the hearing (which clearly he did do in this case).
Posted by: Stephen Williams | Jun 5, 2012 11:23:44 AM
The Board is correct about my attitude. The entire process was a collosal waste of time, as the Board is neither concerned about its own Rules, the facts, or the law. For instance, the Hearing Commitee's ruling was due within 120 days of the hearing's conclusion. Instead, the ruling was made more than a year after the conclusion of the case. Moreover, although, the Hearing Committee said I lied about the issue of whether the court certified my client's case for a jury trial, the evidence of my assertion is contained on the appeals brief appendix (page 37-38) that I filed on behalf of my client, which contains the court transcripts. I referenced those pages in my closing brief - yet Bar Counsel persisted in perpertrating this lie. (Anyone who wants to see the appendix, inbox me your email and I will gladly forward it to you.) And speaking of my right to defend myself, I actually opted to NOT testify because Bar Counsel's case was so weak and the Hearing Committee ordered me to testify, despite that I was not subpoened and that Bar Counsel did not call me as a witness. Now that I testified under after being ordered to do so, I am a liar. I could go on and on but the bottom line hear is that Bar Counsel is out of control. The only thing the Hearing Committee was right about is that I do not respect the process and neither do they.
Posted by: Andre Barber | Jun 6, 2012 3:48:06 PM
My experience was identical. In a reciprocal discipline proceeding, the Board refused to consider the record before it, instead continuing to cite as fact the claims made by Bar Counsel despite those claimed facts being clearly contradicted by the record. They claimed that principles of collateral estoppel required that they do so. In re Williams, 06-BG-682 (D.C. Board on Prof. Responsibility, 3 October 2007), pp. 13-14, 3 A.3d 1179, 1183 (D.C., 2010), cert. denied, 132 S. Ct. 1010 (2012).
Posted by: Stephen Williams | Jun 13, 2012 11:47:26 AM