Monday, August 8, 2022

No Bias, Just "Unhelpful" Observations

While rejecting claims of bias urged by Disciplinary Counsel, the District of Columbia Board on Professional Responsibility chided an attorney member of a hearing committee

While we find no bias reflected in the Hearing Committee’s report and recommendation, the concurring opinion’s discussion of personal views and extrajudicial facts is improper and wholly unhelpful. Discussion of facts outside of the record cannot be allowed to affect decisions in a disciplinary proceeding. Here, we do not find that the concurring opinion’s discussion of personal views and extrajudicial facts affected the Hearing Committee’s findings. But even such gratuitous discussion risks the perception and, as demonstrated here, invites express allegations of bias in favor of one party or another that can undermine confidence in the disciplinary system.

The BPR recommended a 30 day suspension for a number of Rule violations.

The "unhelpful" concurrence follows the Hearing Committee report  and quoted in part

While it may be presumptuous to say this, I know it to be a widely held view of members of our Bar that Disciplinary Counsel is difficult to deal with and overzealous in pursuit of minor transgressions and mere mistakes. The disciplinary system, in the opinion of this longtime member of the Bar and the Hearing Committee, should be designed to find the truth and to protect the public, but also to be respectful of the members of the Bar who come into its processes. In this regard I would hold Office of Disciplinary Counsel with its fuller understanding and experience with the system, to a higher standard of conduct in disciplinary proceedings, than Respondents who are at a disadvantage in navigating through the difficulties of defending themselves while conducting a separate workload on behalf of clients.

Disciplinary proceedings should not follow the model of civil litigation which is almost entirely based on winning and losing. In my experience on Hearing Committees and as a Contact Member reviewing Disciplinary Counsel’s files, many complaints come from disgruntled clients who expected more than was reasonable and use the disciplinary system to further their own unreasonable, or in some cases, unsavory objectives. The Complainant in this case fits that description, and to this Hearing Committee was neither credible nor a victim of any misconduct. Had Disciplinary Counsel conducted a more open-minded, interactive, and thorough investigation of the substance of the complaint subsumed by Count One, the charges would not have been brought.

In my experience. lawyers with attitudes like this have no business serving in an adjudicatory capacity in the disciplinary system.

The concurrence was signed by the attorney member and joined by the attorney chair. The public member did not join.

Perhaps a non-lawyer appreciates the necessarily prosecutorial role of Disciplinary Counsel more than the lawyers do.

Something about foxes and henhouses. (Mike Frisch)

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