Sunday, September 18, 2011

Five Years On

We began this blog five years ago today.

Speaking for myself, my goal in undertaking this endeavor was to bring light to the often shadowy world of lawyer discipline. I think that goal has in the main been achieved, as scores of bar discipline cases that might otherwise have gone unnoticed have been posted here and drawn a wider audience.

Some were cases of significance in better understanding and appreciating how discipline does (or does not) work. Some addressed issues of rule interpretation that were of interest to the profession and the clients it serves. Many have simply (or not so simply) reinforced the eternal truth that none of us are perfect. Some are just terminally strange and invoke wonder in the wide array of things that imperfect humans are capable of.

One contribution I hoped to have made is to bring some understanding to the role and mind set of the disciplinary counsel. As I spent nearly 18 years of my professional life serving as a bar prosecutor, it is natural for me to view the role of bar counsel as an important and honorable thing to do with one's professional life.

If the job is done properly, many of your state bar colleagues will certainly view you with, at best, fear and distrust. At worst, loathing. Your phone calls do get returned and, if they don't, you can file charges.

If you take your job seriously, you come into the office every day trying to figure out which case assigned to you presents the greatest urgency in terms of protecting the public from an unfit attorney. You try to move that case forward. Often, the process of moving forward is painfully slow. When you are prosecuting a lawyer for neglect, you appreciate the irony of a hearing committee report that is several years overdue.

I once tried a bar complaint that involved, inter alia, charges that an attorney had appeared late for court. One of my hearing committee members showed up 45 minutes late. While things like that can happen in D.C. traffic, it was pretty amusing when that member jumped all over the respondent for tardiness.

You don't come in every day hoping that some lawyer will mess up and that the case will be assigned to you. Honestly, you don't (even if members of your state bar feel otherwise).

The dedicated and diligent bar counsel will inevitably encounter frustration at the role that bar politics plays in the process. Many of the best chief bar prosecutors end up fired or burned out. In my view, if the organized bar largely controls the disciplinary process, there is a high degree of likelihood that the process is deeply flawed.

Frisch's rule number one: a jurisdiction's highest court should take the responsibility to appoint the bar counsel, who should serve at the court's pleasure.

If there was one thing I would fix in the District of Columbia, this would be it.

The Maryland Court of Appeals appoints Bar Counsel based on the recommendation of the Attorney Grievance Commission. The result has been stability and competence. During the period in which Maryland has had two Bar Counsel, the District of Columbia (where Bar Counsel is appointed by and serves at the pleasure of the Board on Professional Responsibility) has had seven. This is not mere happenstance.

The recent brouhaha in California should be proof positive that you can't leave regulation to the organized bar.

Frisch's rule number two: use real judges to adjudicate bar discipline cases, not volunteer attorneys. My jeremiad on the subject (now a bit outdated) is linked here. While no system of adjudication is free from error, you have a better chance of getting at the truth with real judges. Too often, lawyer adjudicators issue decisions that reflect the "parochial or self-interested concerns of the bar." See ABA Model Rules, Scope at [12].

Frisch's rule number three: you judge a bar's commitment to transparency by its web pages. If lawyer discipline cases are hard or impossible to find anywhere on line, that bar doesn't want potential clients to know about an attorney's disciplinary history. Unfortunately, many jurisdictions fit this description.

Anyhow, my thanks to those who have visited this blog.  The readership is what makes the effort worthwhile. (Mike Frisch)

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Great job, Mike!

Posted by: Jeff Lipshaw | Sep 18, 2011 6:56:28 AM

Thanks Mike. Your blog is a must read for me and should be for everyone in the discipline arena. And let's hope for many more members of our profession. It really is a shadowy world much in need of illumination.

Posted by: David Cameron Carr | Sep 18, 2011 9:02:49 AM

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