Wednesday, August 24, 2016
As a follow on to my post about a D.C. Board on Professional Responsibility rule that was used to exclude relevant evidence in the reinstatement hearing of a convicted and disbarred felon, I reprint the section of my article No Stone Left Unturned, Georgetown Journal of Legal Ethics Vol. XVIII, No. 2 (Spring 2005) that discusses the Rule at issue
The Header: The Rights of the Disbarred
The Board is empowered with the authority to "adopt rules, procedures, and policies not inconsistent with [Rule XI] or any other rules of [the] Court." An examination of the rule promulgated by the Board to protect the supposed rights of attorneys who have been either disbarred or suspended with a fitness requirement is instructive in terms of understanding the agenda of the District of Columbia's volunteer lawyer system. Board Rule 9.9, which applies to reinstatement petitions, styled "evidence of unadjudicated acts of misconduct" can only be characterized as an elaborate procedure designed out of a wellspring of concern for the rights of the disbarred. The Rule reflects the Board's fixation on its view of due process and its utter lack of concern for the protection of the public from attorneys who have by their adjudicated misconduct demonstrated their unfitness to practice law.
Disciplinary proceedings, as has been previously noted, exist to promote confidence in the competence and integrity of the legal profession. The rules of evidence are not strictly applied, as any evidence relevant to the fitness of the attorney must be considered. There is no statute of limitations for any disciplinary offense, as the focus of all such proceedings is on the present fitness of the accused attorney. Criminal concepts such as venue also are not applied to these matters. One would think that the open consideration of all relevant evidence would apply with particular force to a reinstatement proceeding, involving as it does the present fitness of a disciplined attorney whose past conduct has shown a serious inability to adhere to minimum standards of ethical behavior. The Board's rule, motivated by an apparent desire to protect such lawyers, is the work of an entity "drunk on due process."'
Board Rule 9.9 prohibits Bar Counsel from introducing evidence at a hearing on a petition for reinstatement of any acts of misconduct that occurred prior to the order of disbarment or suspension with fitness unless Bar Counsel (i) proves that the attorney received notice that Bar Counsel reserved the right to present the facts and circumstances of the unadjudicated acts of misconduct and (ii) gives notice of its intent to raise the misconduct at reinstatement in the Answer to the Petition. Then, Bar Counsel is required to make a written proffer of its evidence to support admissibility of the evidence and satisfy the hearing committee chair that the misconduct can be established by a preponderance of the evidence. Because the rule, by its terms, applies to allegations about which Bar Counsel is aware at the time the attorney is disciplined, undiscovered misconduct that occurred before disbarment but later comes to light apparently is inadmissible.
This rule simply makes no sense, unless one is inclined to view the disbarred as a class worthy of special consideration and treatment. When an attorney has engaged in misconduct meriting lengthy suspension or disbarment, there often is a pattern of behavior that is undiscovered for years. Bar Counsel's limited resources do not permit the luxury of continuing to prosecute cases working their way through the system that are unresolved when the attorney is suspended or disbarred. Any act or omission by a Bar applicant that reflects adversely on the applicant's present character and fitness to practice law is considered in the determination whether or not to grant the license. Any rule that operates to place technical hurdles in front of the disciplinary prosecutor in the process of evaluating the present fitness of a previously disciplined attorney frustrates the fundamental purpose of regulation. The Court has never had occasion to review this rule and presumably would invalidate it if relevant evidence is ever excluded by its operation. Its mere existence signals a misunderstanding on the part of the Board of its role in the disciplinary system.
I have omitted the accompanying footnotes except this one, which I particularly enjoyed writing
The Board's overarching concern for the rights of accused lawyers also finds expression in a practice that I believe is unique to the District of Columbia. The Board will appoint counsel to "indigent" lawyers and pay appointed counsel from bar dues. BOARD RULES Rule 16.5. While other jurisdictions appoint counsel in matters involving allegations of mental incompetence or disability, D.C. stands alone in giving free lawyers to lawyers who are not disabled. I made a series of requests to the Board for information regarding the identities of the appointed attorneys and the amounts paid. I was advised that "[t]hese documents are not public records; they are treated as confidential," and later that "[the Board isj not obliged to devote our limited resources to compiling data in response to your request." Letters from Executive Attorney to author (May 28 and June 29, 2004). The Board was kind enough to send me an application for appointed counsel and a list of attorneys who accept appointments in case I am ever in need.
I am pleased to report that I have not needed counsel (appointed or otherwise) for a bar discipline matter in the eleven years since the article was authored.
Also note that Criminal Justice Act vouchers are public records.
Why are payments to appointed counsel from mandatory dues a big secret? Answer: See above. (Mike Frisch)