Wednesday, October 29, 2014

Protecting Lawyers Rather Than The Public

Ever mindful of its role as the protector of accused attorneys rather than the public, the District of Columbia Board on Professional Responsibility has proposed a 90 day suspension with automatic reinstatement of an attorney who engaged in serious neglect.

The board applied the so-called Cater standard to find that Bar Counsel had failed to prove by clear and convincing evidence that there was a "serious doubt" as to the attorney's fitness to practice law.

Thus reinstatement will be automatic if the D.C. Court of Appeals agrees.

The Cater case is a rather unusual decision.

The Court of Appeals hates to hurt the feelings of the volunteer lawyers on the board and, in Cater, a unanimous panel had soundly rejected the board's  interpretation of the supervisory duty of an attorney for non-lawyer employees.

The board had found no violation of the duty to supervise the work of an embezzling secretary where, over an extended period of time, the attorney had allowed the employee to steal and abscond with entrusted estate funds.

The court flatly rejected the board's elaborate effort to render the supervision obligations of Rule 5.3 non-existent from an enforcement point of view.

As a sop (I believe), the court accepted the lesser evil proposed by the board and adopted its wildly public-unfriendly standard for determining when a fitness showing should be imposed for attorney misconduct

..we grant the Board's request for clarification of the legal standard to be followed in deciding whether the so-called fitness requirement is warranted.   Resolving a disagreement between the Board and Bar Counsel, we approve the “clear standard” proposed by the Board:  to justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law.

This ill-advised "clarification" has led to a number of instances of erring on the side of automatic reinstatement contrary to the public interest.

As I noted in this March 20, 2008 post titled The Public Speaks:

What is interesting is the hearing committee report itself. The two lawyers agree on sanction, finding that automatic reinstatement is in the public interest because Bar Counsel failed to show clear and convincing evidence of a serious doubt regarding fitness to practice. This is the so-called Cater standard, which I criticized in my article on the D.C. disciplinary system. This case shows how this laughably legalistic formulation can be used to frustrate the overarching goal of any disciplinary system, which is protecting the public from unfit lawyers. As I had predicted, it permits the system to justify leniency as a supposed failure of Bar Counsel to meet its burden of proof.

Notably, the non-lawyer is having none of this lawyerese mumbo jumbo and rightly complains about the leniency of the sanction: "Remorse does not, by itself, demonstrate [his] rehabilitation... only that he is aware he did wrong... Any recommended sanction should accurately reflect the seriousness of the offense. Eighteen months does not, in this case, achieve that goal." I suppose one needs to become a lawyer to unlearn such common sense.

Here, the attorney had failed to file a post-hearing brief and appear for oral argument before the board. No problem, in their eyes

We have considered Respondent’s failure to consistently respond to Bar Counsel’s inquiries during the course of its investigation and his lack of participation in proceedings before the Board in assessing the second Roundtree factor. However, we do not find that this lack of consistent participation in the disciplinary process detracts from Respondent’s forthright admissions and recognition of the seriousness of his misconduct in his testimony before the Hearing Committee.

Also unimportant was the attorney's reprimand in Maryland for similar misconduct.

The case is In re John Green and can be accessed at this link.

Update:

I have learned that Bar Counsel had filed additional charges against this attorney on September 25, 2013. The charges were not reviewed and approved until last week - thirteen months later.

I find it shocking that the BPR would issue this report knowing that its own deficient processes had delayed consideration of further charges while blithely assuring the public that the attorney is fit to practice.

If someone can explain to me why charges sit unreviewed for over a year while other charges against the same attorney are being litigated, I'd be pleased to hear that justification.

Until then, spare me the concern about the deficiency of Bar Counsel's proof of the attorney's unfitness to practice.  (Mike Frisch)

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