Thursday, July 12, 2018

Reinstatement Denied; Worst Board Rule Lives To Die Another Day

As expected, the District of Columbia Court of Appeals side-stepped the issue of a ridiculous Board on Professional Responsibility rule and denied reinstatement

Given our disposition, we need not address whether the Hearing Committee should have considered the additional unfavorable evidence, proffered by Disciplinary Counsel, related to petitioner’s conviction.

Applying heightened scrutiny, the court found insufficient evidence of two of the five so-called Roundtree factors

Character

Although petitioner provided assurances of his new character, he offered no examples of post-discipline conduct from which his personal growth can be reasonably inferred. Applying heightened scrutiny, we deem the lack of evidence regarding petitioner’s present character to weigh against reinstatement

Competence

A petitioner’s post-disbarment legal work may demonstrate his competence to practice. See, e.g., Bettis, 644 A.2d at 1030 (petitioner established his competence where he “worked as a law clerk . . . and improved his legal research and writing skills”). However, like the Board, we deem significant petitioner’s failure to explain whether his post disbarment work required legal analysis or otherwise improved his legal knowledge or skills. See, e.g., Tinsley, 668 A.2d at 838 (appending Board report) (petitioner failed to demonstrate his competence where he provided no details concerning his legal teaching experiences). Nor did petitioner call witnesses who could testify to the quality or nature of his work. See, e.g., In re Stanton, 589 A.2d 425, 427 (D.C. 1991) (per curiam) (petitioner failed to prove his competence where no supervisory lawyer testified to his work).
Applying heightened scrutiny, we find that the remaining evidence is too meager to establish his competence to practice, and therefore conclude that this Roundtree factor weighs against reinstatement.

My coverage of the controversy is linked here. 

In an earlier blog post, I noted that a test case had finally arisen to challenge  the single worst rule ever dreamed up by the District of Columbia Board on Professional Responsibility.

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.

And there is no reason for Disciplinary Counsel to waste its limited resources on sending notices of anything to disbarred lawyers. Rather, the petition for reinstatement makes any past misconduct fair game if proven. 

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/07/as-expected-the-district-of-columbia-court-of-appeals-side-stepped-the-issue-of-a-ridiculous-board-on-professional-responsib.html

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