Wednesday, May 26, 2021

Free Pass For Favored Few?

I am advised that the District of Columbia Office of Disciplinary Counsel notified the host of attorneys (including several former Bar Presidents) that it would not entertain their complaint filed against the former Attorney General of the United States because the persons who had filed it lack "personal knowledge" of the events at issue.

I was not in any way surprised as ODC investigations are confidential unless and until formal charges are filed.

I fully expected the complainants to not be treated as persons entitled to information about the existence or progress of any investigation by ODC.

I also fully expect that this complaint has been or will be firmly deposited in a circular file and that the reasoning for the decision will never come to light.

But the letter from ODC contains this disturbing sentence

In general, this Office will not intervene in matters that are currently and publicly being discussed in the national political arena

If this translates into the bar prosecutor's view that ethics violations - filing frivolous cases, lying to Congress and the public, threatening a witness - get a free pass denied to the rest of us because of the attorney's high profile in the District of Columbia (where the action clearly is), then there is something deeply wrong with a system that purports to protect the public and uphold the integrity of the legal profession.

This position also runs counter to the enumerated powers and duties of Disciplinary Counsel set forth in Rule XI, section 6(a)

...(2) To investigate all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of this Court  which may come to the attention of Disciplinary Counsel or the Board from any source whatsoever, where the apparent facts, if true, may warrant discipline

Read the above language carefully.

There are no exceptions for big firms or big shots.

Eliott Abrams was most assuredly a bar prosecution that involved matters "publicly being discussed in the national political arena." I prosecuted the case (initiated by a misdemeanor conviction) and pressed on after he was pardoned. 

The en banc Court of Appeals ordered a public censure.

But the ODC has not ignored politics entirely.

They supported without any hearing the summary reinstatement of Scooter Libby as well as convicted Jack Abramoff associates.

From our  July 2016 post

The District of Columbia Court of Appeals quietly reinstated an attorney who had been quietly disbarred on consent in 2011 after the attorney's  "serious crime" conviction as part of the Jack Abramoff scandals.

Because Disciplinary Counsel did not oppose reinstatement, there were no hearings or (as there is in many jurisdictions) any meaningful public notice of the reinstatement request.

 A July 2017 post entitled "Bars and Politics"

State Bars have been notoriously reticent in taking on cases with a political tint.

In the Bush II era, virtually nothing was done to the Department of Justice attorneys who used political considerations in hiring (a Virginia reprimand for Monica Goodling) , advocated for torture and engaged in other abuses of power.

Also noteworthy is the undeniable fact that then-D.C. Bar Counsel did not contest the reinstatement of three convicted felons who got their law licenses back after the minimum five years without a speck of public notice until a court order was entered.

The favored felons are I.Lewis LibbyDavid Savafian and Robert Coughlin. 

In D.C., the bar powers-that-were was much more interested in pursuing whistleblowers than any other form of potential misconduct by government actors.

The most energy went into the pursuit of Jesslyn Radack and Thomas Tamm as reported by Newsweek (and which notes my personal interest in these matters).

I await with dread the day I read that convicted, disbarred and pardoned Paul Manafort has had his license to practice in D.C. summarily returned.

Disclosure: I am a signatory to the complaint here.

Postscript: It should be obvious that I am strongly in favor of fully transparent bar discipline, where the public is able to see the reasoning behind a dismissal and know if a lawyer has had 50 dismissed complaints.

I have written literally a couple of thousand such dismissal letters and would be prepared to defend (or reconsider) the reasoning of every one of them. (Mike Frisch)

Bar Discipline & Process | Permalink


Please leave the ad hominem and politics out of the otherwise excellent series of posts on this blog.

Posted by: Neutral | May 26, 2021 4:26:54 AM

I came of political age in the 1960’s, but I am still shocked by the examples discussed in Free Pass for a Favored Few. If we are to remain a self-governing profession this practice by the DC Office of Disciplinary Counsel needs to be held up to public scorn in every classroom where legal ethics is taught and every place where lawyers who value the rule of law convene. Then perhaps in the not-too-distant future we will hear of the same rules being applied to all.

Posted by: LizRyan Cole | May 26, 2021 4:30:38 AM

To Neutral: Doesn’t it seem considerably more important to keep politics or prestige (national or local) out of the process of determining whether to regulate misconduct? Why should an attorney’s influence at the highest and most visible levels of the DOJ justify refusing to regulate such attorney’s conduct? Some of the judicial decisions that have been issued in the past couple years regarding the misconduct of DOJ attorneys indicates a real problem with the tone at the top.

Posted by: Jack Jordan | May 27, 2021 6:55:14 AM

In my comment above, I should have said that the number and nature of the judicial decisions that have been issued in recent years regarding the misconduct of DOJ attorneys (spanning multiple administrations) indicate a real problem with the tone at the top. It’s not a political problem. It’s a leadership problem.

It seemed to me that the primary points of the original post were quite clear and imminently legitimate. First, an attorney’s prominence (to the point of being considered a “national political” issue) was expressly used to justify refusing to consider regulating such attorney’s conduct. Second, such justification was clearly contrary to the plain language of multiple provisions of the relevant legal authority. Third, as a country and as a profession, we should be better than that and we should be concerned about regulators who expressly admit that they aren’t.

Posted by: Jack Jordan | May 27, 2021 7:13:15 AM

Hold all to the standard of law that all have sworn an oath to. Get back to ethical standards that this country was built on.

Posted by: Ellen | May 28, 2021 8:58:25 AM

Some of the most compelling evidence supporting the Bar complaint is the subject of FOIA litigation. On May 3, the DOJ was ordered to release the evidence (CREW v DOJ, DDC No. 19-cv-1552), but the DOJ is appealing (No. 21-5113). Please consider filing an amicus brief supporting CREW. I’m definitely doing so.

Posted by: Jack Jordan | May 30, 2021 1:17:30 PM

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