Friday, June 22, 2012

The Most Dangerous Idea In The History Of The District of Columbia Bar

Have I got your attention?

I have been a member of the District of Columbia Bar for over 37 years. For nearly half that time I served as a disciplinary prosecutor, i.e., an employee of the Bar. In other words, I've been inside the factory and seen how the sausage is made.

My experiences have long since persuaded me that the most fundamental tenet of any credible lawyer regulation system is the absolute independence of the bar counsel and adjudicators from the influence of the organized Bar. Indeed, the commentary to section two of the ABA Model Rules of Disciplinary Enforcement specifies that "[t]he disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations for...compelling reasons [of impropriety or its appearance]." To me that is the gospel.

This is because the professional privilege of self-regulation carries special responsibilities that are plainly inconsistent with the interests of a lawyer's guild.

As the Bar has acknowledged in its most recent Strategic Plan (which can be found linked to its Jerry Mcguire inspired  Mission Statement), part of its "core ideology" is to "safeguard the professional interests of the members of the Bar." The disciplinary function has an entirely different purpose -- to weed out the bad apples without fear or favor.

When I speak of the Bar, one must understand that I'm not talking about its membership. The membership has no real say in anything the D.C. Bar proposes or does. Rather, the Bar acts through an elected, limited term-serving Board of Governors("BOG"). The real Bar, in my view, is the deeply entrenched, well paid senior professional leadership of the organization. It is my experience that one does not get on the BOG or any other Bar committee without the blessing and support of this senior leadership. That is where the power truly resides.

So when the BOG engages in the most unprecedented and unwarranted stealth power grab in the Bar's history, it is my view that the senior administrative staff is responsible for the action and should be held accountable.

That is precisely what took place on June 18, 2012.

The BOG sent a letter to the Court of Appeals proposing an amendment to the rules of disciplinary enforcement ("Rule XI") that would grant the BOG complete authority over the bar discipline budget.

This action, so far as I can determine, was taken with no notice to the membership. There were no announcements, no hearings, no opportunities to comment, no nothing. Just a three page letter from the BOG seeking to "clarify" the existing rules by granting it full and plenary authority over the disciplinary system's budget and expenditures.

In the past, it has been recognized that amending Rule XI is a serious business and a public trust. It was only done after careful study and deliberation. Here, the BOG seeks to fundamentally change the nature of the system and treats it as a 'housekeeping" measure, apparently hoping that no one will notice what they are doing or understand the implications of the rule change.

If this proposal is adopted, it is easy to imagine the parade of horribles that could follow.

Want to make it harder for the bar counsel to prosecute cases against immigration attorneys? Easy. Cut the interpreter budget. Want to make it harder to prosecute complex fraud cases against "uptown" attorneys where the witnesses are not local? Not a problem. Cut the travel and expert witness budget. And on. And on.

Amazingly, this proposal is not even available on the bar's web page. I can't link to the BOG letter because the Bar's web page contains not a single mention of this unprecedented power grab.

As to the genesis of this idea, the letter states that the BOG approved the amendments at a May 8, 2012 meeting. Disciplinary authories were permitted to comment at a meeting six days later. On June 12, the BOG "voted to go forward to recommend the rule amendments."

In fairness, there should be budgetary oversight of all the decisions concerning the use of mandatory bar dues. Not just of the disciplinary budget, but also of the bar administration expenses - CLE, travel, salaries of bar executives, lawyer counseling, etc. etc. There also should be transparency in that the detailed budget should be readily available to the membership. Then, if I or anyone else thinks there is wasteful or unneccessary spending, it can be addressed.

No interest (save for resolving an apparent turf war in favor of the Bar's senior leadership) is served by this proposal. The BOG does not deign to explain to the Court why the change is either advisable or needed. The BOG states only that the measure would "ensure accountability for expenditures of Bar funds by the disciplinary system."

Well, I can only hope that what is sauce for the goose is sauce for the gander. I sincerely doubt that the BOG or the Bar's senior administrators want to account to the membership for how they spend our dues. How do we bar members "ensure accountability"?

I trust that the Court of Appeals will recognize that thoughtful diagnosis should precede such major surgery.

All D.C. Bar members should care how such a proposal came to pass. All members also should demand that there be real transparency in the decision-making processes that are done in our name.

(Mike Frisch)

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Agree 100%. In fact, I raised this as an issue in my own disciplinary case but the court simply ignored it. I think that the Court of Appeals has a vested interest in seeing that these guys maintain power. At least they can be depended upon to kowtow to the court as necessary.

The real solution to this is to end mandatory bar membership and completely separate the bar and disciplinary functions. The court should be responsible for regulating the profession, not running a professional organisation. Indeed, those two interests are really directly opposite to each other.


Posted by: Stephen Williams | Jun 22, 2012 7:55:26 AM

"No interest (save for resolving an apparent turf war in favor of the Bar's senior leadership) is served by this proposal."

Who is fighting for turf against the Bar's senior leadership?

Posted by: Stephen R. Diamond | Jun 22, 2012 5:16:50 PM

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