Monday, June 6, 2016

After Seven Years Of Investigation, Sanction Proposed For Pants Judge

Does anyone remember the D.C. Administrative Law Judge who sued a cleaners for over $60 million in a dispute concerning a pair of pants?

The D.C. Disciplinary Counsel has had that rather highly-publicized matter under investigation since May 2007 and apparently took seven years to file charges.

A hearing committee just issued its report

This disciplinary proceeding arises out of litigation that Respondent conducted on his own behalf in the Superior Court for the District of Columbia between June 2005 and August 2007 an in the District of Columbia Court of Appeals between August 2007 and March 2009. In pursuing his case, Respondent made factual allegations and advanced legal positions based thereon with respect to events that had occurred not only in May and June of 2005 but also in July of 2002.

As to the seven year delay in prosecution, the usual response: No harm, no foul.

After careful consideration of his testimony in this regard, the Hearing Committee has concluded that Respondent has not established even by a preponderance of evidence that he incurred any of the alleged prejudice. See In re Morrell, 684A.2d 361, 368-370 (D.C. 1996). Therefore, the Hearing Committee recommends that the Board conclude that Respondent has not established his Seventh Defense.

As to frivolous litigation

the Hearing Committee has concluded after much deliberation that Respondent’s course of action was an unacceptable perversion and betrayal of the noble law reform work that his former, distinguished legal services organization and other such entities properly pursue. The Hearing Committee recommends, therefore, that the Board conclude that Respondent pursued unmeritorious claims and supporting theories in violation of Rule 3.1. 

The hearing committee finds that the former judge violated Rules 3.1, 3.2 and 8.4(d) and recommends a stayed 30-day suspension with two years of probation.

The report may be accessed at this link under the name In re Roy Pearson.  

Between the delay shown here and the one mentioned in a post last Friday, is it well past time to wonder about the ability of the Office of Disciplinary (formerly Bar) Counsel to fulfill its public protection mission? (Mike Frisch)

Bar Discipline & Process | Permalink


A 7 year delay between the sending of a target letter and the actual filing of charges does seem unreasonable. Charitably, it may be assumed that disciplinary counsel used some of the interim to try to settle with Pearson, but even then, there is a point far short of 7 years that all prosecuting counsel reach where they realize that settlement is hopeless and commence litigation. Even so, the "no harm no foul" logic cited from Morrell is correct: the delay did not prejudice Pearson's ability to practice law in the interim, nor his ability to defend the disciplinary case. An exhaustive record from Pearson v. Chung was readily available, and unlike in Morrell, there was no allegation that the delay created any prejudicial gaps in the record. Now, if Pearson had temporary restraints placed on his license prior to the hearing, or if as in Harris-Lindsey the hearing committee had no discretion in fashioning the penalty, that's another story.

Posted by: WL | Jun 6, 2016 4:45:42 PM

When Japan was on the verge of defeat in WWII, one of their conditions for surrender was that they be put in charge of their war crimes trials. Historian Waldo Heinrichs said, with disbelief written all over his face, “Can you imagine?” Lawyers in the United States have not only imagined this ultimate power of self-regulation, they have achieved it.

Thomas Paine argued that “if the judges are to hold their offices during good behavior there must be a power somewhere to judge of that good behavior or the breach of it, but of this the constitution is silent, and herein lies its defect.” [Man of Reason: The Life of Thomas Paine, Alfred Owen Aldridge]

Paine attributed this deficiency to the fact that in the constitutional convention the judiciary department had been planned by lawyers, who as potential judges made their removal as difficult as possible. "Asked about pressure, Scalia joked that his lifetime tenure means he doesn't feel any pressure."

“Study after study has shown that the current rules for professional conduct are not enforced. Misconduct is rarely perceived. If perceived, it is not reported. If reported, it is not investigated. If investigated, violations are not found. If found, they are excused. If they are not excused, penalties are light. And if significant penalties are imposed, the lawyer soon returns to practice, in that state or another. Lawyers constantly condemn the failure of the criminal justice system to deter crime for precisely these reasons – because of its alleged indifference, procedural niceties, or excessive lenience. Indeed, we know that the efficacy of social control varies even more strongly with the likelihood of punishment than it does with the severity of the sanction. Yet on both counts, especially the former, the professional disciplinary system falls far below the wholly inadequate standards of the criminal law. Lawyers can hardly present their travesty of a penal system as an effective deterrent.” (“Why Does the ABA Promulgate Ethical Rules?” by Richard L. Abel, Connell Professor of Law, University of California at Los Angeles School of Law, from 59 Texas Law Review 639, 1981)

Posted by: George Fleming | Jun 7, 2016 10:43:51 AM