Wednesday, May 16, 2018

The Worship Of Mindless Proceduralism

If everything that is wrong with the District of Columbia Board on Professional Responsibility could be distilled to its essence in 10 pages, it would bear a striking resemblance to a report filed the other day in the case of In re Leslie Thompson. 

Setting the stage

On December 21, 2017, the Court granted the Board’s petition to temporarily suspend Respondent, pursuant to D.C. Bar R. XI, § 3(c), for his failure to respond to a Board order in a different disciplinary investigation (Disciplinary Docket No. 2017-D186). Rule XI, § 3(c) provides that the Court may suspend a respondent who has failed to respond to an order of the Board in a matter where Disciplinary Counsel’s investigation involves allegations of “serious misconduct,” which includes “fraud, dishonesty, misappropriation, commingling, overdraft of trust accounts, criminal conduct other than criminal contempt, or instances of neglect that establish a pattern of misconduct.” At the time of this Report, Respondent has not sought reinstatement to the Bar.

At issue in this case in which the attorney failed to appear to contest charges of failure to cooperate in a bar investigation is a typo in the bar charges.

Disciplinary Counsel charged the non-cooperation violated Rule 8.1(a) rather than (b) but clearly by its charging language alleged the (b) (failure to respond to bar complaint) violation.

Heaven forbid to those who exhalt form over substance

The Committee determined that Disciplinary Counsel could not proceed on its allegations that Respondent had “knowingly fail[ed] to respond reasonably to a lawful demand for information,” because it did not clearly charge a violation of Rule 8.1(b) and did not follow the mandated procedures to amend the Specification of Charges.

The "governing" board rule

Board Rule 7.21 provides that:

No amendment or any petition or of any answer may be made except on leave granted by the appropriate Hearing Committee Chair. Whenever, in the course of a formal hearing, evidence shall be presented upon which another charge or charges against respondent might be made, it shall not be necessary to prepare or serve an additional petition with respect thereto, but upon motion by respondent or by Disciplinary Counsel, the Hearing Committee Chair may continue the hearing. After providing respondent reasonable notice and an opportunity to answer, the Hearing Committee may proceed to the consideration of such additional charge or charges as if they had been made and served at the time of service of the original petition.

The procedures dreamed up by the board invariably are nothing but obstacles to the efficient prosecution of charges.

And, as per usual, more process than is accorded to a criminal defendant. 

A former board chair agrees

"You get more due process in the disciplinary system than a first-degree murder defendant," said Mark Foster, a former chairman of the Board on Professional Responsibility, which is appointed by the D.C. Court of Appeals. "The system is created by lawyers for lawyers."

A 1993 decision of the Connecticut Supreme Court gets it right

In attorney disciplinary proceedings, two interests are of paramount importance. On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct. On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood. 

The Thompson case shows how the D.C. board deals with a typographical error where the allegations are crystal clear and the lawyer - who is charged with failure to cooperate as required by the rule  - does not deign to contest the charges.

If you wonder why cases in many jurisdictions can take as little as a year to proceed from charges to final court action (see Kansas, for example) and it takes ten years or more with some regularity in the District of Columbia, the mindset that produces a unanimous report like this is a more than likely suspect. 

And many jurisdictions actually care whether or not a lawyer responds to a bar complaint. Many if not most (e.g. New York, Nebraska. Maryland) have default rules with teeth - if you don't respond, you admit the charges (typos and all). 

In New York, a non-responding lawyer is immediately suspended and disbarred if no response is forthcoming within six months.

By contrast, in the District of Columbia, the board as an institution has long worshipped at the alter of mindless proceduralism to the detriment of any concept of the need for public protection. 

And the fact that there are hearing committee reports that are years overdue? 

No problem at all. 

The players change, the mindset never does.

The report can be found here. (Mike Frisch)

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