Tuesday, August 27, 2019

Misplaced Priorities

Normally a District of Columbia Board on Professional Responsibility recommendation to accept a consent disbarment would merit no mention.

An exception can be found in today's recommendation in In re Wesley L. Clarke as there is this bow to technology

Respondent’s affidavit was notarized electronically, “a process whereby a notary affixes an electronic notary signature and seal information to an electronic document (such as a PDF or Word document). Once affixed to the electronic document, the document is rendered tamper evident such that unauthorized attempts to alter the document will be evident to relying parties.” Secretary of the Commonwealth of Virginia website, https://www.commonwealth.virginia.gov/officialdocuments/notary-commissions/enotary-faq/ (visited on Aug. 26, 2019).

But this little nugget was what really caught my eye

Disciplinary Counsel asserts in its motion that Respondent engaged in additional misconduct not admitted in his affidavit. If Disciplinary Counsel intends to introduce evidence of unadjudicated acts of alleged misconduct in a future reinstatement proceeding, it shall comply with the notice requirements in Board Rule 9.8. See In re Yum, Board Docket No. 15-BD-067, at 2-6 (BPR Dec. 22, 2017).

As I have asserted previously, the "rule" is an anti-public creation from an institutional  mindset that exalts form over substance and eschews public protection to indulge in blatant protectionism.

And I have not heard any defense of or justification for the rule from the board.

No other jurisdiction has anything like it as nowhere else do the powers-that-be obsess about the Rights of the Disbarred. 

As I said back in December 2017

In an earlier blog post, I noted that a test case had finally arisen to challenge  the single worst rule ever dreamed up by the District of Columbia Board on Professional Responsibility.

I have been waiting a long time for a case to come along that would provide District of Columbia Bar (now Disciplinary) Counsel with an opportunity to test the single most public protection-unfriendly rule of the Board on Professional Responsibility, the infamous Board Rule 9.8

Evidence of unadjudicated acts of misconduct occurring prior to the Court’s order of disbarment or suspension with fitness (“unadjudicated acts”) may be introduced by Disciplinary Counsel at a hearing on reinstatement only if: (i) Disciplinary Counsel demonstrates that the attorney seeking reinstatement received notice, in Disciplinary Counsel’s letter dismissing the complaint alleging the unadjudicated acts, that Disciplinary Counsel reserved the right to present the facts and circumstances of the unadjudicated acts at a reinstatement hearing; and (ii) Disciplinary Counsel gives notice in the Answer to the petition for reinstatement that he intends to raise the unadjudicated acts at reinstatement.

Let me say it plainly: No legitimate public policy purpose underpins any rule that excludes relevant evidence in the reinstatement hearing of a disbarred attorney.

Question: who in their right mind dreams up a procedural rule to exclude evidence in a reinstatement matter on grounds other than its merits?

Answer: the District of Columbia Board on Professional Responsibility.

And there is no reason for Disciplinary Counsel to waste its limited resources on sending notices of anything to disbarred lawyers. Rather, the petition for reinstatement makes any past misconduct fair game if proven. 

The case here involves the exclusion of evidence beyond the four corners of the criminal plea and consent to disbarment of Chris C. Yum. The consent came after a felony false statement conviction.

A hearing committee excluded proferred evidence of wider misconduct and recommended reinstatement.

The case was argued before the Court of Appeals and, I learned today in an order of  the Board on Professional Responsibility

After oral argument, the Court referred the matter to the Board on Professional Responsibility (“Board”) to weigh in on two questions:

First, whether the Hearing Committee should have considered additional facts about Petitioner’s conviction that were not a part of the record in his original disbarment proceeding, or whether that additional information is precluded from being considered under Board Rule 9.8.

Second, whether, on the record before the Court of Appeals, the petitioner should be reinstated.

Order, In re Yum, No. 16-BG-838 (D.C. June 22, 2017) (per curiam).

I was quite disappointed with the BPR's spirited defense of this ugly rule

Disciplinary Counsel is correct that the result of our reading of Rule 9.8(a) is that some otherwise admissible evidence will not be considered in this reinstatement proceeding. The trouble is that Disciplinary Counsel doesn’t offer a competing interpretation of the Rule. Indeed, it is hard to see what Rule 9.8(a) means if it does not mean that Disciplinary Counsel must give notice to Petitioner in this circumstance. We decline to read Rule 9.8(a) out of existence.

With all due respect, better that than to readmit a convicted felon with blinders on concerning the true scope of the acts that led to the consent disbarment 

Disciplinary Counsel is correct that generally evidence is admissible under Rule 11.3. But it offers no reason – beyond a policy argument in favor of admitting relevant evidence – for why Rule 11.3 trumps the plain language of 9.8(a). This is not how statutes should be interpreted; “[a] general statutory rule usually does not govern unless there is no more specific rule.” Green v. Bock Laundry Machine Co., 490 U.S. 504, 524 (1989). Disciplinary Counsel has provided no reason to depart from this familiar canon of statutory construction.

It is true that the Hearing Committee, the Board, and the Court will not have some evidence in this reinstatement proceeding. However, the fault is not with these entities; the power to prevent that result lies entirely with Disciplinary Counsel. It could have complied with Rule 9.8(a). It did not. We cannot read Rule 9.8(a) into a nullity to forgive or correct its errors. 


The supposed raison d'etre of the BPR is to protect the public from unfit attorneys.

Stop worrying about blame and start doing the business of self-regulation in a responsible manner. 

And the policy argument, if there is something to it, would obligate the BPR to defend this indefensible rule rather than just read it.

D.C. App. R. XI section 4(e) empowers the BPR

(10) To adopt rules, procedures, and policies not inconsistent with this rule or any other rules of this Court.

Rule 9.8 violates the most fundamental policy that obligates a trier of fact to consider any relevant evidence in determining the present fitness of a disbarred attorney.  

The BPR tag line:

we recommend that Petitioner’s petition be denied on the record before us on the ground that the seriousness of Petitioner’s misconduct, compounded by the relative weakness of his evidence on the last three Roundtree factors, is not sufficient for Petitioner to meet his burden.

 Thus, the issue may not even get decided on the merits.

My more thorough analysis of this rule may be found here in an excerpt from No Stone Left Unturned. 

Parting shot: If the BPR loves notice so much, perhaps it would care to post public notice that a disbarred attorney is seeking reinstatement and inviting the views of any interested person.

It does not.

Update: Reinstatement petitions are now posted on the board's web page. (Mike Frisch )


Bar Discipline & Process | Permalink


What did Clarke get disbarred for? The record has been sealed.

Posted by: Nosey Neighbor | Nov 28, 2019 5:38:24 PM

Why is Clarke's case sealed????

Posted by: Norman Morton | Dec 14, 2019 7:11:16 PM

the case is not sealed but the affidavit of the attorney is by court rule.

Posted by: Michael Frisch | Dec 15, 2019 4:52:23 AM

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