Tuesday, February 6, 2018

Default Is In The Rules

A blow for efficiency from the District of Columbia Board on Professional Responsibility - a brief summary of a Hearing Committee disbarment recommendation from last December 12 transmitted to the Court of Appeals

Disciplinary Counsel charged Respondent, Edward N. Matisik, with violating Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.4(b), 1.15(a), 1.15(e), 1.16(d), 5.5(a), and 8.4(c), arising out of his representation of a client in connection with the client’s annual registration in states in which it planned to seek charitable contributions. Respondent was personally served with the Specification of Charges, but failed to file an Answer or otherwise participate in these proceedings. The Hearing Committee considered this matter pursuant to the default procedure of D.C. Bar R. XI, § 8(f) and Board Rule 7.8.

The Hearing Committee found that Respondent violated each of the charged Rules, and recommended that he be disbarred because he engaged in intentional misappropriation when he spent advance fee payments without performing any work for the client. Neither Disciplinary Counsel nor Respondent has taken exception to the Hearing Committee’s Report and Recommendation.

The Board, having reviewed the record, concurs with the Hearing Committee’s factual findings (which are supported by substantial evidence in the record), with its conclusions of law, and with the recommended sanction. For the reasons set forth in the attached Hearing Committee Report, the Board recommends that the Court determine that Respondent violated Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.4(b), 1.15(a), 1.15(e), 1.16(d), 5.5(a), and 8.4(c), and disbar him for his intentional misappropriation. See In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc).

So far, so great.

Now for the humorous part comes footnote two

The Hearing Committee has asked the Board to revisit the current default procedure, which requires the Hearing Committee to hold a hearing to determine the sufficiency of Disciplinary Counsel’s proof, and to prepare a report and recommendation “of the same character as is prepared in contested proceedings.” The Board appreciates the Hearing Committee’s observations, and directs the Board’s Rules Committee to reassess the procedure in default cases.

The Hearing Committee

By our Rule, once default has occurred, the facts alleged by Disciplinary Counsel are admitted. This Rule should afford substantial efficiencies; however, that has not proved the case. An informal practice has emerged, in the absence of definitive guidance and for the generally laudable reason of erring on the side of more rather than less process, of conducting essentially a full (one-sided) hearing and preparing a Report and Recommendation of the same character as is prepared in contested proceedings. Given the volume of important work before the Board, the Board’s limited staff resources, the Board’s reliance on the volunteer efforts of members of the Bar and the public, and the value of maintaining an orderly and efficient docket, we respectfully suggest that this practice should be revisited.

The "informal practice" emerged from an institutional disdain for default and for the concept that self-regulation should be executed in the public interest.

Expect to hear back from the Rules Committee shortly after pigs learn how to fly. (Mike Frisch)


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