Monday, August 22, 2016

Drunk On Due Process: Hearing Committee Rules Evidence Inadmissible In Reinstatement Proceeding

I have been waiting a long time for a case to come along that would provide District of Columbia Bar (now Disciplinary) Counsel with an opportunity to test the single most public protection-unfriendly rule of the Board on Professional Responsibility, the infamous Board Rule 9.8

Evidence of unadjudicated acts of misconduct occurring prior to the Court’s order of disbarment or suspension with fitness (“unadjudicated acts”) may be introduced by Disciplinary Counsel at a hearing on reinstatement only if: (i) Disciplinary Counsel demonstrates that the attorney seeking reinstatement received notice, in Disciplinary Counsel’s letter dismissing the complaint alleging the unadjudicated acts, that Disciplinary Counsel reserved the right to present the facts and circumstances of the unadjudicated acts at a reinstatement hearing; and (ii) Disciplinary Counsel gives notice in the Answer to the petition for reinstatement that he intends to raise the unadjudicated acts at reinstatement.

Let me say it plainly: No legitimate public policy purpose underpins any rule that excludes relevant evidence in the reinstatement hearing of a disbarred attorney.

Question: who in their right mind dreams up a procedural rule to exclude evidence in a reinstatement matter on grounds other than its merits?

Answer: the District of Columbia Board on Professional Responsibility.

My prayers are answered in the reinstatement proceeding of an attorney who had consented to disbarment while facing bar charges that his federal false statement conviction involved moral turpitude on its facts

Petitioner filed the instant Petition for Reinstatement on June 14, 2015. See DX 1 (Responses to Reinstatement Questionnaire for Petition for Reinstatement, Reinstatement Questionnaire, and Petition for Restatement). On October 15, 2015, Disciplinary Counsel opposed the Petition for Reinstatement and asked that a Hearing Committee be assigned to hold a hearing on the Petition. See DX 2 (Disciplinary Counsel’s Answer to Petitioner’s Petition for Reinstatement). The Board assigned the matter to the present Hearing Committee.

The Hearing Committee held a prehearing conference on January 22, 2016. Petitioner and Disciplinary Counsel submitted a set of twenty-three stipulated facts on February 3. In addition, Petitioner submitted four exhibits and Disciplinary Counsel submitted twenty-five.

On March 9, 2016, Petitioner objected to Disciplinary Counsel’s proposed Exhibits 9 and 16 through 25. Disciplinary Counsel filed responses to Petitioner’s objections on March 11. Exhibits 16 through 25 related to the 2006 criminal matter. Disciplinary Counsel’s Exhibit 9 was the Specification of Charges submitted for Contact Member review on February 28, 2011. Exhibit 16 was a Department of Labor investigative report, and Exhibits 17 through 25 were Department of Labor interview reports and FBI interview reports, all of which concerned the underlying criminal matter.

The Hearing Committee held a hearing on March 14, 2016. At that hearing, the Hearing Committee excluded Disciplinary Counsel’s Exhibit 9 and Exhibits 16 through 25, except for the cover page that constituted the first page of Exhibit 9. Hearing Tr. 20:7-14, 24:8-11. The Hearing Committee concluded that the exhibits alleged unadjudicated acts of misconduct before the effective date of the disbarment and that Disciplinary Counsel had failed to satisfy the condition for their admissibility – that it had provided notice to Petitioner reserving the right to present evidence of the unadjudicated acts on reinstatement, as required by Board Rule 9.8(a). Hearing Tr. 20:7-14. Disciplinary Counsel objected to that ruling on the record. Hearing Tr. 23:17-18.

Does the reader understand that this hearing committee refused to hear relevant evidence by operation of a ridiculous procedural rule intended to do nothing but tie Disciplinary Counsel's hands in conducting a fair reinstatement inquiry?

Notably, it appears that these reports do not involve "unadjudicated acts of misconduct." Rather, reports on the nature of underlying offense involve the circumstances surrounding the misconduct. I'd say those circumstances are worth knowing before you let a convicted felon get his law license back.

This is exactly what Disciplinary Counsel was exploring in its charges when the attorney threw in the towel and consented to disbarment.

Now

At the hearing, Petitioner testified credibly that the “material facts” to which he agreed in the affidavit in support of consent to disbarment were the facts set out in the criminal information and the plea agreement. Hearing Tr. 98:10-12, 99:18-20, 100:15-21, 102:19-21. He stated that he never admitted to other allegations in the draft Specification of Charges, and he denied the truth of the additional allegations related to the underlying criminal case.

This may or may not be true. The Hearing Committee prevented Disciplinary Counsel from presenting the evidence that well might disprove it. 

And the Ad Hoc Hearing Committee recommends reinstatement!

The case is In re Chris Yum. 

In No Stone Left Unturned, I predicted that if this "drunk on due process" rule ever got before the Court of Appeals it would go down in flames.

I hope I was right.

The "drunk on due process" comment on this "rule" is not original with me but quotes a judge of the Court of Appeals in an oral argument many years ago where the rule came up.

I was there and loved it. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2016/08/i-have-been-waiting-a-long-time-for-a-case-to-come-along-that-would-provide-district-of-columbia-bar-now-disciplinary-couns.html

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Comments

Keep fighting the good fight, Mike!

Posted by: Alan Childress | Aug 23, 2016 9:52:44 AM

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