Thursday, May 23, 2013

Downward Departure

The District of Columbia Court of Appeals has agreed with the Board on Professional Responsibility and declined to impose identical reciprocal discipline in a case where the attorney was disbarred in Maryland.

Instead of disbarment, the attorney was suspended for two years, with the last year stayed in favor of probation with a practice monitor for 18 months. If he violates probation, he will be suspended for a year and required to demonstrate fitness.

The court called the board's probation proposal a "thoughtful, targeted response" to the attorney's "sloppy recordkeeping and a failure to communicate that resulted in the abandonment of his clients' matters."

The court also rejected Bar Counsel's call for a fitness requirement prior to reinstatement, finding that "Bar Counsel bears the burden of persuasion on this issue."

I disagree as a matter of law with the last point.

This attorney was disbarred in Maryland. There is no evidence of deficient proof of misconduct. An order of disbarment reflects an explicit conclusion that the attorney is unfit to practice. Even if the court concludes (as it does here) that "substantially different [lesser] discipline" is appropriate, the sanctioned attorney properly bears the burden of demonstrating that a fitness showing is not necessary for the purpose of public protection.

It is also notable that the court suspended this attorney for 45 days in January 2012 for similar misconduct. Those violations (and a 2008 informal admonition) are not mentioned in this decision.

Of course, the finding that the misconduct warrants substantially different discipline (and the cites to prior cases of like disposition in footnote 9) simply translates into the principle that D. C. is more lenient in attorney misconduct matters than its neighbor to the north.

Since Maryland and the District of Columbia share jurisdiction over many, many attorneys, the difference is one with real world consequences.  (Mike Frisch)

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