Tuesday, March 7, 2023

An Improvident Order Creates An Anti-Transparency Mess

I just watched the pre-hearing conference before a District of Columbia Hearing Committee in the Tully-Rinckey prosecution.

Unfortunately, the pre-hearing can only be viewed in real time.

The pre-hearing underscores my concerns that the Board on Professional Responsibility's  protective order was ill-advised, improvident and unworkable and - most significantly- creates an impermissible danger of closing significant portions of the hearing and evidence to the public, contrary to the Court of Appeals directive that these proceedings be open.

My prior post on the BPR order is linked here.

My concerns

I was surprised to see a recent Order of the Board on Professional Responsibility that granted in part the firm's request to maintain under seal documents that will placed in evidence in the case.

There is a strong presumption that, once charges are filed, the entire proceeding is public. Protective orders are granted to protect the privacy of victims of lawyer misconduct; somewhat rarer are instances (such as here) where such orders are granted to protect alleged perpetrators.

The contentions of the parties are set out in the order. I repeat the contentions and the Board's resolution at some length as I do not have access to a linkable copy.

The full order can be obtained from the Office of the Executive Attorney of the Board.

While the merits of the Board's order are difficult to discern absent access to the underlying documents, I will observe the following:

To the extent this Order is intended to protect client confidential information, I am on board. To the extent it protects the firm and shields the practices from scrutiny when those very practices are the subject of the charges, I am most definitely not. To the extent that the Order will require closing the hearing, I view that as contrary to the mandate of Rule XI for open bar proceedings.

The BPR has created a mess in its eagerness to elevate the interests of Respondent lawyers over the public's right to an open disciplinary process.

The discomfort of the Hearing Committee and uncertainty on how to comply and proceed was obvious. They feel bound by an order that is entirely unworkable unless the hearing is completely closed. 

I am disappointed but not surprised in the least.

Let me be clear: I have no view on the merits of the allegations or the quality of the evidence. My concerns are entirely about process. (Mike Frisch)


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If I believed that the State Engineering Board was wrong to dismiss my complaint against an engineer, I could sue the engineer. The case would not be heard by engineers. The court would at least have the appearance of an impartial tribunal.

But if I sued a lawyer after getting no help from the State Lawyer Board, the case would be heard by a lawyer whose title is Judge, and argued by lawyers whose title is Brothers and Sisters of the Accused.

We allow lawyers to control the law. That is why there are no impartial tribunals for lawyers and judges. They regulate themselves in every respect. It is a violation of the Sixth and Seventh Amendments to the Constitution.

Mike is complaining about this problem.

Benjamin Barton wrote a book, The Lawyer-Judge Bias in the American Legal System. It is a good place to start for anyone who wants to investigate the matter of lawyers policing themselves.

Posted by: George Fleming | Mar 7, 2023 11:45:05 PM

Secrecy is a symptom of a dangerous sickness. A “thirst for absolute power is the natural disease” of public officials that are “trusted without being looked after.” Thomas Paine, Common Sense (Jan. 1776). “A result considered untoward may undermine public confidence” in courts and the justice system. Richmond Newspapers v. Va., 448 U.S. 555, 571 (1980) (opinion of Burger, C.J., White, Stevens, JJ.). “The educative effect of public” access to information about how and whether justice is being served “is a material advantage” of our system of justice. Id. at 572. “Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.” Id.

“Public vigilance serves us” (courts, judges, lawyers, litigants, the People and America) “well” because “[w]ithout publicity, all other checks” on judicial abuses of power “are insufficient: in comparison of publicity, all other checks” on judicial abuses “are of small account.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035 (1991) (Kennedy, Marshall, Blackmun, Stevens, JJ., concurring) quoting In re Oliver, 333 U.S. 257, 270-71 (1948). Accord Richmond Newspapers v. Va. 448 U.S. 555, 569 (1980) (Burger, C.J., White, Stevens, JJ.) quoting Jeremy Bentham (1 J. Bentham, Rationale of Judicial Evidence 524 (1827)). Prompt public access to information about judicial misconduct is vital to our republic.

Public scrutiny and criticism of judicial proceedings “has always been recognized as a” vital “safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that” judicial conduct is “subject to contemporaneous review in the forum of public opinion” is part of our constitutional systems of justice and government because it is “an effective restraint on possible abuse of judicial power.” In re Oliver at 270.

Posted by: Jack Jordan | Mar 11, 2023 4:32:20 AM

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