Monday, November 28, 2022

Disgraceful Delay Is The Norm

The most frustrating aspect of the District of Columbia bar disciplinary system is the interminable delays that have become endemic over the past twenty years.

Second most frustrating is that no one in a position to do anything about it seems to care one whit.

So I found this letter from retired Superior Court Judge Peter Wolf somewhat heartening

This issue of the Daily Washington Law Reporter reprints a District of Columbia Court of Appeals attorney disciplinary decision, In re Krame. I was the one who made complaints against Attorney Krame. I was obligated to do so under the Judicial Canons of Ethics, and for more reasons than appear in the DCCA opinion.

I am not writing to argue one way or another the outcome of Mr. Krame’s case; I was not even called to testify. I write only to suggest to the Bar that our disciplinary processes are too slow and that something should be done about it. Mr. Krame’s case is proof of this pudding.

My letter complaint to Bar Counsel (as Disciplinary Counsel was then called) was written July 16, 2007. The Court of Appeals decision is dated November 3, 2022. That is a total elapsed time of more than FIFTEEN YEARS. That is too long -- too long for the accused attorney and too long for the public that our disciplinary rules are designed to protect.

I realize that attorney discipline can affect an attorney’s livelihood; therefore, great due process care must be taken. Many of the disciplinary system participants are volunteers with busy and conflicting schedules. Disciplinary counsel is short-staffed and underfunded. Cases can be extremely complicated. Discovery and motions take time. Briefing takes more time beyond testimony and oral arguments. The tribunals involved conscientiously take time to consider and write their decisions.

The Krame case was exceptional. For example, my complaint was stetted until an awaited decision in In re D.M.B., 979 A.2d 15 (D.C. App. Aug. 20, 2009), a delay of 25 months. Thereafter, Bar Counsel resumed investigation and discovery, much of it contested, for about 45 months. A possible negotiated disposition, which failed, occupied another 18 months. Attorney screeners caused delay. Disciplinary Counsel concluded an expert witness was necessary; once chosen, money had to be allocated for her.

A four-count, 139-paragraph, 41-page Specification of Charges was eventually filed March 31, 2016, almost nine years after my complaint. A hearing committee took ten days of testimony in October-December 2016; after briefing, a decision was rendered on July 23, 2018 (206 pages). Then there was more briefing before the Board on Professional Responsibility, oral argument, and more time for its disposition on July 31, 2019 (57 pages). The attorney was temporarily suspended by the Court of Appeals on October 15, 2019. (He has already been suspended, then, for more than three years; the final DCCA disposition ordered suspension for 18 months.) There was briefing before the Court of Appeals. Oral argument was finally set for June 24, 2021. The 53-page slip opinion, reprinted in the D.W.L.R. today, came down 16 months after that.

But the discipline took 15 years overall! That’s obscene. While 15 years is conspicuously excessive, I am aware of other cases that have also been, in my opinion, too slow.

I’m 87 years old, retired, and for the last four years a resident of Winston-Salem, N.C. I no longer maintain much contact with D.C. So, my plea is for someone locally -- anyone (even a committee)! -- to look at this system and its procedures and funding and make it faster.

More effective attorney discipline was the primary reason the compulsory D.C. Bar was created 50 years ago. Discipline has been more effective. But over those 50 years has it become too slow? -- inefficient, even though effective?

Krame may be extreme, but extreme cases should provoke reassessment. Thanks to anyone who answers this call.

Krame is sadly not an outlier on delay. One case - In re Harris-Lindsey - took 22 years. 

Examples abound, see here and here for instance.

I was an Assistant Bar Counsel from 1984 to 2001. This species of delay never happened back then.

So what did happen?

I actually have a pretty good idea. First, there are a plethora of cases where the "investigation" of a complaint that led to charges took five to eight years. That's on Disciplinary Counsel. Second, neither the Board on Professional Responsibility or the Court of Appeals has deemed it appropriate or necessary to even criticize delays. That's on the whole system. 

Let's see if anyone (say the Court of Appeals, which bears ultimate responsibility) responds to Judge Wolf's call to answer that question and takes meaningful action.

I am not going to hold my breath waiting. (Mike Frisch)

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