Wednesday, September 25, 2019

An Honor Bestowed, A Duty Avoided

The District of Columbia Board on Professional Responsibility took the unprecedented step of construing an attorney's dismissive behavior as the functional equivalent of a consent to disbarment. 

The case is In the Matter of Glenn H. Stephens, III

Thus the board did not evaluate the merits of the underlying case.

In this extraordinary matter, Disciplinary Counsel seeks to have Respondent disbarred. Respondent has also unequivocally, and colorfully, sought to be disbarred. In this unique posture, we must determine whether the disciplinary system should expend substantial resources on the merits of a case that each party would like to have end in disbarment. For the reasons set out below, we conclude that Respondent should be disbarred without an analysis of the merits of his case and we recommend that the Court of Appeals grant Respondent’s clear request that he be disbarred.

His response to four complaints

Rather than participate in these proceedings, on March 1, 2018 (the deadline for the exchange of proposed hearing exhibits), Respondent sent an email to Deputy Disciplinary Counsel Julia L. Porter, Esquire. The email’s subject was “Maybe I wasn’t clear . . .” and its content requested that Disciplinary Counsel disbar

Respondent:

Please don’t kill trees, waste taxpayer resources and ODC personnel on me.

ODC has no credibility or legitimacy to me. Or the drivel you generate.

You are simply dishonest lawyers who do nothing to regulate dishonest lawyers.

And racists to boot.

Rather than wasting time, money, and paper on your sophistries, please disbar me.

Disbarment by ODC would be an honor.

To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt.

But a disbarment letter from ODC will be framed and go up right alongside those diplomas.

Please do me the honor of disbarring me.

I will be so very very [sic] proud.

Glenn

Because D.C. has a uselessly defective default procedure, the dreaded deforestation followed as night follows day

After Disciplinary Counsel put on evidence at a four-day hearing, an Ad Hoc Hearing Committee painstakingly analyzed each of the allegations against Respondent and issued a 252-page report concluding that, in representing himself and various clients in litigation and related proceedings, Respondent abused the judicial system and ignored the ethical boundaries of adversarial advocacy that are key components of that system. The Hearing Committee determined that Respondent violated Rules 3.1 (frivolous claims) in four matters, 3.2(a) (expediting litigation) in one matter, 3.4(c) (violating the rules of a tribunal) in one matter, 4.2 (communicating with a represented person) in one matter, 4.4(a) (embarrassing/burdening third parties) in four matters, 8.4(d) (serious interference with the administration of justice) in three matters, and 8.4(g) (misuse of criminal/disciplinary charges) in two matters. The Hearing Committee recommended that Respondent be suspended for three years, with fitness. Disciplinary Counsel takes exception only to the recommendation that Respondent be suspended for three years, arguing that, instead, he should be disbarred.

The board issued a show cause order 

Because Respondent’s email indicated his desire to be disbarred, but did not meet the requirements for consent disbarment set out in D.C. Bar R. XI, § 12, on July 17, 2019, we issued a show cause order that set out the conditions under which a respondent may consent to disbarment, including the statements that must be contained in the required affidavit pursuant to D.C. Bar R. XI, § 12(a), and we

ORDERED that, no later than August 1, 2019, Respondent shall show cause why the Board should not recommend to the Court of Appeals that Respondent be disbarred forthwith, based on his consent to be disbarred, without further consideration of the proceedings against him.

Disciplinary Counsel responded to the order to show cause, arguing that Respondent should be disbarred on the merits, and not on the basis of his email alone.

He responded with the equivalent of a raised middle finger

Respondent did not respond to the Order to Show Cause. Instead, he sent a mailing to the Office of Disciplinary Counsel. In that mailing, he enclosed a number of copies of a color image of Flavor Flav from the hip-hop group Public Enemy with the text “ODC is a joke” in all caps at the top of the page in what one can only assume was a reference to Public Enemy’s 1990 song “911 is a joke.” R. Response at 1-3. Respondent also reiterated his prior allegation that members of the Office of Disciplinary Counsel are unethical and racist. See R. Response at 5.

The board

There is no evidence that Respondent’s email was a rash, unthinking act. Charges were pending against Respondent for approximately eleven months before he requested to be disbarred. He has not repudiated his request, even though Disciplinary Counsel used it to support its arguments before the Hearing Committee and the Board in support of disbarment. He did not repudiate it when ordered to show cause why he should not be disbarred on consent. In short, nothing in the record suggests that Respondent’s disbarment request was unknowingly or improvidently made, or that he has thought better of it and would like to remain a member of the Bar.

Disciplinary Counsel argued that respondent had waived any objection to disbarment but 

using this case as a vehicle to create a new waiver doctrine would be a bold expansion of the law. We conclude that the more moderate course of action would be to construe Respondent’s conduct as the functional equivalent of compliance with Rule XI, §12.

I always favor the boldly moderate approach.

Board Chair Matthew Kaiser authored the majority opinion.

There was a dissent of two members

We cannot agree with the majority’s conclusion that Respondent should be disbarred when the requirements for consent to disbarment have not been satisfied and the Rules do not allow the Board discretion to infer consent from circumstances such as those presented here. As the majority describes, D.C. Bar R. XI, § 12(a) sets forth the procedure to be followed when a lawyer under disciplinary investigation decides to consent to disbarment. Because Respondent has not followed that procedure, we conclude that the Board must carry out its duty under D.C. Bar R. XI, § 4(e)(7) “[t]o review the findings and recommendations of Hearing Committees submitted to the Board, and to prepare and forward its own findings and recommendations” to the Court. The majority has chosen not to review the Hearing Committee’s findings and recommendations because Respondent emailed Disciplinary Counsel asking to be disbarred, and failed to respond to the Board’s Order to show cause why he should not be disbarred. Respondent’s conduct is regrettable, but it is not a sufficient reason to cast aside § 12(a)’s procedure by which a member of the Bar may consent to disbarment, and, in any event, the Board is not granted discretion to do so.

...Respondent’s email and his failure to respond to the Board’s show cause Order are inexplicable. However, they do not provide a sufficient basis for the Board to avoid our duty to “review the findings and recommendations” of the Hearing Committee. D.C. Bar R. XI, § 4(e)(7). That such review may be an arduous undertaking given the voluminous case record is not a reason for the Board to avoid its obligation under Rule XI.

Because the dissenters have the better argument, it might be worth exploring rule revisions that short circuit proceedings when an attorney does not deign to participate.

Like just about everywhere else. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/09/the-district-of-columbia-board-on-professional-responsibility-in-this-extraordinary-matter-disciplinary-counsel-seeks-to-ha.html

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