Tuesday, December 3, 2013

No Right To Voir Dire Hearing Committee Members

There is an interesting recent report of the District of Columbia Board on Professional Responsibility directing Bar Counsel to informally admonish an attorney for neglect of a client matter.

The attorney had agreed to act as local counsel as a favor to a friend, who was later disbarred. The underlying civil case was dismissed. The client complained to Bar Counsel.

In the disciplinary case, the attorney contended that the "local counsel" status did not create an attorney-client relationship and that, as a result, there could be no ethical violation. The Board firmly rejected the suggestion that the attorney's local counsel status in any manner diminshed his ethical obligations to the client.

The Board also rejected a number of procedural objections, only one of which is worthy of note.

He claimed a right to voir dire the hearing committee members as to possible bias. The board held that he had no right to use a voir dire procedure to inquire about possible bias.

I do wonder how much information is made available to accused attorneys about the lawyers and laypersons who act as their judges. While perhaps voir dire is not the answer, I believe that the disciplinary system has an obligation to make available sufficient information concerning the professional backgrounds of hearing committee and board members to both the public and attorneys charged with offenses.

I also favor greater transparency on the selection process for hearing committee positions, as they inevitably are the group from which Board on Professional Responsibility members are chosen.

The attorney was admitted in 1967 and had no prior discipline. One of his character witnesses was Thomas Henderson, who hired me as an Assistant Bar Counsel in 1984.

The case is In re Thomas Fortune Fay and can be accessed at this link. (Mike Frisch)


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My appeal in the Second Circuit raises exactly this question in relation to discipline imposed in the District of Connecticut in which members of the Federal Grievance Committee had obvious and likely conflicts which the District Court refused to allow discovery of or consider.

Too bad that you've so far refused to report these cases -- I believe so as to protect your bar counsel friends from embaressment.

The District Court docket number was 3:05-gp-18. The 2d.Cir docket number is 13-845. All briefs have now been filed.


Posted by: Stephen Williams | Dec 3, 2013 6:36:55 AM

In TN we have district committee members who are political picks - I have no idea how they are vetted or chosen. When a hearing panel is selected it is supposedly selected "at random" by only one person - the Chair of the Disciplinary Board - from among the district committee members! They will not disclose the random system or how they vet the members chosen for a particular case - what they tell those folks about the case when they assign it and vet it is anybody's guess. "Do you know lawyer X, have you ever had a run in with him in a legal or other matter and Are you opposed to giving him the death penalty?" Even in arbitration both sides have input into the selection of the private decision maker. NOt here. Panel members are trained in how to act like judges by Disciplinary Counsel. They are given Handbooks teaching them the law - by Disciplinary Counsel. They are empowered to make findings of fact that are supposedly final subject only to substantial evidence rule review. They are applying rules that are intentionally broad and vague and that have only been construed in one or two opinions, if any. They are good folks (almost all) but they are just lawyers; not elected; not acting under juror Oath or judicial Oath of Office. The SCT tells us that the entire group - Justices, Board, committee members, hearing panel selectes, are all one happy judicial group for ex parte communications purposes. Supposedly that is not a due process violation under Withrow, but looks and smells like a Caperton violation to me. How would you like your judge to be picked at random by the foreperson of the grand jury that authorized Disc Counsel to prosecute you and decides whether to "settle" or appeal? Kinda makes you feel warm and fuzzy to know that you are policing yourself and your colleagues by such a system.

Its a lot worse than denying you voir dire -

File a petition with the Conn. Supreme Court asking them to change those rules and just see how it goes.

Posted by: Caldwell Hancock | Dec 5, 2013 4:02:24 PM

How do you know about the obvious and likely conflicts? Are you certain, or just guessing? That can be a very difficult thing to prove. Of course under Rule 8.2(a) they have to accuse you of false allegations and to get there they have to prove falsity meaning you get discovery if you can get them to come after you under 8.2 - Quite a price to pay, huh.
Our "ethical systems" seem tooperate just as one would expect any other tyrannical - unreviewable - government control and censorship system to work. a cruel joke. When our state constitutions are said by our Supreme Courts to inherently (not explicitly) give the Supreme Courts exclusive power to discipline lawyers, what check or balance is there to make - or even just encourage them - to rule graciously and benignly. Didn't they all take an Oath of Office to honor and obey at least two Constitutions?

Posted by: Caldwell Hancock | Dec 5, 2013 4:16:30 PM

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