Thursday, March 25, 2021

Consent Without Consent

An unusual decision of the District of Columbia Court of Appeals accepted an attorney's consent to disbarment despite the undeniable fact that he had not formally consented to disbarment.

Rather, he had emailed the following to Disciplinary Counsel in April 2017 after charges were filed.

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 proud. Glenn

A hearing was held and misconduct was found; Disciplinary Counsel advised the Board on Professional Responsibility of the email.

The board then issued an order directing the attorney to show cause why consent disbarment should not be imposed

Respondent did not respond to the order to show cause.

 Instead, he sent a mailing to the Office of Disciplinary Counsel, in which he enclosed pictures of Flavor Flav (from the hip-hop group Public Enemy) with the words “ODC IS A JOKE” written at the top, and reasserted that ODC attorneys were unethical and  racist.

Respondent participated no further after the Board proposed disbarment by consent

Respondent has not objected to that disposition of his case. Disciplinary Counsel also takes no exception to it and “agrees with the Board that the disciplinary system should not have to expend substantial resources where, as here, the respondent-lawyer has thumbed his nose at the system” and has not denied the misconduct found by the Hearing Committee or objected to the proposed sanction.

Our coverage of the board report is linked here.

The court

This is an atypical case. In the usual case of disbarment by consent, the attorney’s affidavit is required because it serves two purposes: (1) it provides assurance that the attorney’s consent is knowing and voluntary, and (2) the admissions required in the affidavit are a substitute for a full-blown adjudication and relieve Disciplinary Counsel of the burden of proving the attorney’s disciplinary violations on a full evidentiary record. Neither of those reasons is important in the unusual circumstances of this case. Respondent’s words and actions dispel any concern that his request to be disbarred and failure to file exceptions were unknowing, improvident, or coerced. Among other things, respondent had the specification of charges and Disciplinary Counsel’s hearing exhibits, and the show cause order provided him the opportunity to reconsider his request. And since a full evidentiary hearing was held, at which Disciplinary Counsel presented its evidence, and the Hearing Committee issued a lengthy and comprehensive decision with findings by clear and convincing evidence, respondent’s admissions in an affidavit were unnecessary.

Associate Judge Deahl concurred

It is never contrary to the Bar Rules for us to impose a recommended sanction that is unobjected to because § 9(h)(2) directs us to do just that, without exception. It is effectively an override switch so that even if the Board runs roughshod over the Bar Rules in reaching its recommendation, the onus is on the respondent to object to that; when he fails to do so, we comply with the Bar Rules by imposing the recommended sanction.

...Perhaps the Bar Rules entitled him to an even greater excess of process, but if so then we can afford him relief only if he asks for it. He did the opposite here, when more than three years ago he insisted that we not “kill trees” or “waste taxpayer resources” on him. We should have been quicker to abide.

Judge Deahl's point is well taken.

It should not take four years to sanction an attorney who refuses to participate in disciplinary proceedings.

In New York, an attorney who ignores a bar complaint is immediately suspended and disbarred after six months.

In many if not most jurisdictions, there are effective default procedures that speed up the process for non-cooperating respondents. 

Senior Judge Ruiz dissented and would remand

Because it is clear that the requirements for a disbarment by consent have not been met, D.C. Bar R. XI, § 12, and the court does not have a report and recommendation from the Board on Professional Responsibility based on a substantive review of the evidentiary record and findings of the Hearing Committee concluding that respondent committed the charged Court of the Rules of Professional Responsibility, D.C. Bar R. XI, §§ 9(b), (d), (h)(1), I dissent from the order of disbarment. Instead, I would suspend respondent and remand the case to the Board to conduct the usual substantive review of the Hearing Committee record and make a recommendation to the court on the substantive charges and evidence presented by Disciplinary Counsel.

The dissent notes that this is not a consent to disbarment situation, which is governed by a court rule that requires an affidavit acknowledging disbarment-worthy misconduct

In this case, the Office of Disciplinary Counsel presented its case to the Hearing Committee which in turn considered the evidence and wrote an extensive 252 page report. The Board cannot bypass what the Rules require by devising, after the fact, a non-compliant consent disbarment that was never presented to or by Disciplinary Counsel...

I share the Board’s and my colleagues’ evident frustration with a respondent who has thumbed his nose at the disciplinary system. But the proper response is not to let pique lead to abandoning well-established norms but rather to follow those norms in the usual course. It is the reasoned, sober answer to an accusation that the system is unfair and biased. Moreover, there is no imperative to abandon such norms as the disciplinary system is not without a means to defend itself and the public from respondent’s nonparticipation.

Associate Judge Glickman authored the majority opinion. (Mike Frisch)

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