Friday, September 18, 2020

Consent Discipline In D.C.

As readers may recall, I am a huge believer in the use of consent discipline procedures to resolve bar prosecutions, if adequate procedures exist to ensure fairness to the attorney and appropriate discipline for the misconduct.

Readers may also recall the historic resistance of the District of Columbia disciplinary system to consent sanctions. 

Two matters are now working their way through the system (access here) that can fairly be characterized as plea bargains.

In both matters, the attorneys have conceded that the evidence establishes reckless misappropriation that would require disbarment. In both, the Office of Disciplinary Counsel has agreed to accept a three-year suspension with fitness.

An Ad Hoc Hearing Committee consisting of John R. Gerstein (Chair), Patricia Mathews (public member), and John L. Szabo (attorney member) has approved one of the consents

We recognize that Addams warned that β€œ[t]he appearance of a tolerant attitude toward known embezzlers would give the public grave cause for concern and undermine public confidence in the integrity of the profession and of the legal system whose functioning depends on lawyers.” Addams, 579 A.2d at 193. However, given the advent of the negotiated discipline process, Addams should not be read to preclude a strong sanction short of disbarment in circumstances such as this, particularly where the sanction is close to the functional equivalent of disbarment (a three-year suspension instead of a five-year suspension) and may in practice work identically depending on whether a showing of fitness is made, if any, after a period of three years has passed. Rather than show tolerance for embezzlers, the agreed upon sanction (the most serious available short of disbarment) serves the goals of the attorney discipline system: β€œto protect the public and the courts, to maintain the integrity of the profession, and to deter other attorneys from engaging in similar misconduct.” Pierson, 690 A.2d at 948.

This matter will give the Court the opportunity to clarify its views in light of the advent of the negotiated resolution process, and as long as negotiated sanctions are permitted in certain cases of reckless misappropriation, we recommend that this Petition be approved.

The Petition in the second matter was submitted on September 16 and is pending hearing committee review.

Even with the Respondent stipulating to the violations, it would likely take five years with two levels of full review to complete the process. The lawyer would be free to practice most, if not all, of that time. 

Acceptance of these consents will be a major and much-needed step forward in streamlining a painfully slow system.  (Mike Frisch)

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