Stories & Grievances
The District of Columbia Attorney Discipline System is Deeply Flawed and in Need of Fundamental Change
No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia
by Frisch, Michael S.
LINK
Can lawyers be trusted to police themselves? Self-governance is a cherished and well-entrenched prerogative of the legal profession. In the main, lawyers promulgate the ethical rules that govern their conduct in connection both with the practice of law and their personal lives. When questions are raised concerning the application of these ethical standards, lawyers dominate the decisions (i) whether or not to file charges, (ii) how disputed facts should be resolved, and (iii) with respect to the appropriate sanction. The preamble to the American Bar Association ("ABA") Model Rules of Professional Conduct posits that selfregulation, with ultimate regulatory authority vested in the courts, is necessary to "maintain the legal profession's independence from government domination" as "abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice."1
The ABA's concern about governmental, as opposed to judicial, authority over the legal profession may be well-founded. When there is an issue of an ethical violation, courts adopt one of several models to determine if there has been misconduct and to impose sanction: sitting judges, specialized administrative law judges, volunteers, or a combination of the three. Serious concerns about self-regulation exist when courts delegate substantial authority for fact-finding and sanction decision to volunteer lawyers rather than independent judicial or quasi-judicial officers. Volunteer systems use lawyers and laypersons to consider ethical violations, with the lawyers always having the majority vote. The District of Columbia has operated under such a volunteer system for over thirty years.
Unfortunately, the volunteer system has not worked. Cases are kept alive and pending for years. When the volunteer work is done, it far too frequently reflects the interests of the profession to the detriment of the public interest. This Article seeks to evaluate the District of Columbia attorney discipline system. As the title suggests, this Article concludes that the system is deeply flawed and in need of fundamental change.
The overarching purpose of any attorney disciplinary system is to protect the public and the courts from lawyers who have demonstrated by their conduct that they are unfit to fulfill the responsibilities of the legal profession. As Rule XI, section 2(a) states:
The license to practice law in the District of Columbia is a continuing proclamation . . . that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.
The potential danger encountered in achieving this purpose in the real world is well-expressed in the Preamble to the Model Rules of Professional Conduct: "The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."2
I. THE DISTRICT OF COLUMBIA DISCIPLINARY SYSTEM
The present District of Columbia Bar was established by the District of Columbia Court of Appeals (the "Court"), an entity created by the District of Columbia Court Reform and Criminal Procedure Act of 1970.3 Prior to that time, admission to and removal from the practice of law in the nation's capital was the responsibility of the United States District Court for the District of Columbia.4 Recognizing that it could not conduct original proceedings to adjudicate charges of misconduct against its members, the Court promulgated Rule XI, which created a disciplinary system and set out procedures by which such allegations are investigated, prosecuted, and resolved.5 While Rule XI has been amended several times since its initial adoption, the basic disciplinary structure has remained intact.6
The Office of Bar Counsel ("Bar Counsel") receives all complaints concerning allegations of ethical misconduct against members of the District of Columbia Bar.7 Bar Counsel makes an initial determination as to whether the allegations, if true, may warrant sanction. If the complaint is either unfounded on its face or outside the Court's disciplinary jurisdiction, no investigation is undertaken.8 If Bar Counsel decides to investigate, the accused attorney must be "afforded an opportunity to respond to the allegations."9 Bar Counsel may, subject to a process of review described more fully below, either dismiss the complaint, offer the attorney a confidential program of diversion, issue an informal admonition, or file formal charges of ethical misconduct.10 The Bar Counsel and its staff are appointed by and serve at the pleasure of an entity known as the Board on Professional Responsibility (the "BPR" or "Board")." The Board sets the compensation for all Bar Counsel personnel.12
The Board consists of seven attorneys and two laypersons who are appointed to three-year terms by the Court from lists of persons submitted by the Bar's Board of Governors.13 A Board member may serve two terms.14 The Board appoints hearing committees, which consist of two lawyers and one layperson.15 The hearing committee members also are eligible to serve two three-year terms.16
The hearing committees are convened when Bar Counsel files formal charges.17 The committee may receive documentary and live evidence and is required to file a report setting forth its findings of fact, conclusions of law, and recommendation for discipline within sixty days of the close of the hearing.18 Attorney members of hearing committees also serve as "contact members" and in such capacity review all proposed dispositions of Bar Counsel. The contact member may reject or suggest modifications to the proposed disposition.19 Thus, no action by Bar Counsel may be taken in any investigated matter without the approval of a hearing committee member. A hearing committee member may not serve as contact member and committee member in the same matter.20
The Board reviews all hearing committee reports.21 Either the attorney or Bar Counsel may note an exception to the findings, conclusion, and/or recommended sanction.22 If exceptions are filed by either party, briefs are submitted to the Board and an oral argument is held.23 Rule XI requires the Board to accept all findings of fact that are supported by substantial record evidence.24 The Board may make its own additional findings of fact where such facts are supported by clear and convincing evidence.25 The Board reviews the conclusions of law and sanction de novo. The Board may dismiss the matter or reprimand the attorney.26 In the vast majority of cases, the Board files a report with the Court transmitting its findings of fact, determination with respect to the charged ethical violations, and proposed final discipline.
The Board also is entrusted with responsibilities in several categories of matters that do not originate as Bar Counsel investigations. When an attorney admitted in the District of Columbia is found guilty or pleads guilty or nolo contendere to a criminal charge, the criminal action must be reported to the Court and the Board.27 If the offense is deemed a "serious crime," the attorney is suspended pending the outcome of the disciplinary proceeding.28 If the crime involves moral turpitude per se, the Board must recommend disbarment.29 If not, a hearing is held to aid in the determination of appropriate final discipline.30 When an attorney admitted in D.C. has been subject to an order of discipline from a "disciplining court,"31 the Court refers the matter to the Board to recommend whether reciprocal discipline should be imposed. In the vast majority of reciprocal discipline cases, no hearing is held and the Board's recommendation is based on the record of the jurisdiction that imposed the discipline. The Board also reviews hearing committee reports on petitions for reinstatement filed by attorneys who have been disbarred or suspended with a requirement that they demonstrate present fitness to practice.32
If either side objects to any aspect of a Board report and recommendation, the Court receives briefs and may hold oral argument.33 If Bar Counsel does not support the Board's recommendation, the Board's Executive Attorney represents the Board's position before the Court.34 The Court reviews questions of law de novo.35 The Court accepts the Board's findings of fact if supported by substantial record evidence and defers to the Board's proposed sanction "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted."36 The Court retains the exclusive final authority to impose sanctions that range from public censure and probation on the lenient side to suspension or disbarment for more aggravated instances of misconduct.37 Thus, the critical decisions in the District of Columbia Bar's regulatory regime, from the hiring and retention of the prosecutor, selection of the members of the hearing tribunal, review of the fact-finding, and the recommendation as to the presumptively correct sanction, are all entrusted to the Board.38
In an ideal world, Bar Counsel would conduct a prompt, fair, and thorough investigation. Where charges are deemed appropriate, the hearing would be held and the factual issues fairly resolved within the sixty-day time period established by Rule XI. The Board would then review the hearing committee report in adherence to the articulated standard of review. Finally, the Court would enter a final order in the case after mature consideration of the contentions of the parties. While the two levels of review might be criticized as cumbersome, resolution of the charges in a fair and expeditious manner would not be impossible.
Unfortunately, the world of the District of Columbia's bar disciplinary system is not an ideal one. Routine cases drag on for years with little indication that interminable delay is in any manner frowned upon. The fact-finding and legal conclusions of both the hearing committees and the Board far too often reflect an institutional hostility to both Bar Counsel and the victims of lawyer misconduct. Most lamentably, the Board has shown a notable tendency to create under the rubric of due process more rights for accused lawyers than would be granted to a criminal defendant facing loss of liberty. Further, the Board has reached interpretations of the rules of conduct that too often further the parochial and self-interested concerns of the legal profession. This Article seeks to detail these contentions and propose reform to restore credibility to the District's attorney regulation system.
II. AN ILLUSTRATIVE EXAMPLE
The disciplinary rules impose minimum standards of professional behavior. The rules are intended to place the Bar on notice of prohibited behavior and require the imposition of an appropriate professional sanction where a violation is found. The rules are not intended or designed to establish a standard that must be drawn with the precision of a criminal statute.39 Rather, the rules are "written by and for lawyers. The language of a rule setting guidelines for members of the bar need not meet the precise standards of clarity that might be required of rules of conduct for laymen."40
The prohibition against "conduct prejudicial to the administration of justice" encompasses a variety of improper acts in connection with the practice of law.41 That provision as interpreted by the Board was at issue in the case of In re Confidential.42 The Board report in the case well illustrates the proposition that matters of professional ethics should not be entrusted to volunteer practicing lawyers.
Bar Counsel filed charges alleging dishonesty and failure to cooperate with its investigation in August 1987 which were heard by a hearing committee in February 1989.43 The hearing committee recommended a finding of no ethical violations-by a majority with respect to the charge of dishonesty and unanimously with respect to the allegation that the attorney had failed to cooperate with Bar Counsel-in violation of the prohibition against conduct prejudicial to the administration of justice.44
The facts were not in dispute in any material regard. The attorney was representing three clients charged with conspiracy to violate federal civil rights law in connection with a homicide. The victim had been a government informant scheduled to testify against his clients in a drug case. The attorney learned the name of Keith Hamlet as a possible witness and instructed his investigator to locate Hamlet. Hamlet was then a fugitive, but at the urging of his family retained counsel, surrendered to federal authorities, and entered into an agreement to testify against the clients. At the time of the incident that led to the disciplinary charges, Hamlet was in the federal court cellblock awaiting transportation into protective custody.45
From sources unknown, the attorney learned that Hamlet was in the cellblock.46 He entered the cellblock area and asked to see Hamlet. The deputy marshal, on specific instructions from the prosecutor, refused to let the attorney see the witness.47 Hamlet also indicated that he did not wish to meet the lawyer.48 Thereafter, an indictment was returned against the attorney's clients and the attorney entered his appearance as counsel for all three charged defendants. On government motion, he was disqualified by the trial court based on his conflict of interest in the multiple representation of the three charged co-defendants. The ethical complaint was referred to Bar Counsel by the Maryland federal court's disciplinary committee.49
In re Confidential involved a complaint against an attorney admitted to practice in the District of Columbia in connection with his representation of clients in a matter before the federal district court in Maryland. The charges of dishonesty investigated by Bar Counsel related to the interaction between the attorney and the deputy marshal. Bar Counsel charged that the attorney had made misrepresentations by telling the deputy that he had been hired by Hamlet when he knew that another attorney had been hired. The evidence did not show that the attorney knew that Hamlet had hired counsel. Rather, the attorney was found to have stated to the deputy that "[Hamlet's] family wants him to have an attorney, and I'm an attorney in the case."50 This statement was clearly false and/or misleading, and was uttered in a context that could have undermined the security of Hamlet who was cooperating against clients accused of already having murdered a witness against them.51 Nonetheless, the hearing committee declined to find the violation and attacked the motives of the prosecutors.52 The Board agreed, holding that the failure to prove that the attorney knew that Hamlet had hired counsel was a fatal variance, a concern raised by the Board sua sponte and conceded by Bar Counsel.53 However, the Board did acknowledge that the attorney's statements to the deputy were false.54
The attorney's false statements were only part of the problem. The resolution of the failure-to-cooperate charge demonstrates the thesis of this Article. Attorneys are ethically obligated to respond to Bar Counsel's inquiry absent a legitimate Fifth Amendment claim.55 The attorney had been requested by Bar Counsel on five separate occasions to provide a substantive response to the complaint.56 He ignored every deadline set. At one juncture, he visited Bar Counsel's office, spoke to an Assistant Bar Counsel, and delivered a letter seeking additional time to respond, stating that "the correspondence contains information that is not accurate or complete," and promising a further response, which was never forthcoming despite Bar Counsel's written demands.57
Shockingly, the Board found the letter to constitute a general denial of the complaint that satisfied the attorney's ethical obligation to respond.58 The Board's order regarding both the dishonesty and failure to cooperate charges opens with an attack on criminal discovery rules and the motives of prosecutors in general, and opines that "[t]he incident . . . is electrified with this tension."59 The point of view of the practicing criminal defense lawyer permeates the order, finding technical defenses to both the proven dishonesty and failure to answer the complaint charges.
A relatively rare Board dissent accurately characterizes the dismissal order. The dissenters note that "the Board requires Bar Counsel's pleadings to be held to a standard of precision higher than the standard to which the Supreme Court holds prosecutors in capital cases" and suggest that the Board's attack on the adequacy of criminal discovery is "ironic . . . in the context of a case that arises out of the murder of a prosecution witness, allegedly to prevent him from testifying."60 Such a technical pleading standard was particularly inappropriate given the lack of response from the attorney.61 Indeed, Bar Counsel had withdrawn a conflict of interest charge after learning the underlying facts.62
As to the charge of dishonesty, the dissent reflects an understanding of the need to consider the public interest and perception of self-regulation that is notably absent from the Board order dismissing the charges. The attorney, who was on notice of a charge of dishonesty in his statements to the deputy, was found to have engaged in such dishonesty but was absolved because surplusage in the charging document was not proven.63 In other words, the evidence demonstrated that the accused attorney had made false representations to the deputy in a somewhat different manner than had been charged.64 An informed public would indeed wonder about the efficacy of self-regulation when technicalities are discovered and applied by volunteer lawyer adjudicators to excuse lies. The acceptance of a "general denial" as an adequate response
sets an unreasonably low standard as to what a[n attorney] must do to comply with [the pertinent Board Rule], [and] can only encourage inadequate responses, which will result in further delay while Bar Counsel requests additional information or invokes formal tools of discovery or in unnecessary petitions being brought. Neither result is desirable . . . .65
The dissent captures the essence of the overarching problem. The Board order does not read as the decision of a neutral arbitrator resolving a disputed question of fact or law. Rather, the order reflects the concerns of the practicing lawyer who views the misconduct from the perspective of a criminal defense attorney. The focus is on the motives of the prosecutor rather than the conduct of the accused attorney.
It is noteworthy that, other than the power to subpoena documents, Bar Counsel has no discovery tools such as interrogatories or requests for admissions to aid in its investigations. There is no disciplinary equivalent to the grand jury to take evidence prior to the institution of formal charges. By contrast, many jurisdictions not only give such tools to their disciplinary prosecutors, but allow for default judgments in attorney discipline matters where the attorney does not timely respond to the process.66 Given that the only method of obtaining information is through the voluntary cooperation of accused lawyers and other witnesses, the precedent of In re Confidential, which the Court did not review,67 hamstrings the ability of Bar Counsel to investigate allegations of misconduct.
One can search the disciplinary law of every other American jurisdiction and not find a comparable precedent.68
III. DUE DEFERENCE: RECIPROCAL DISCIPLINE
The District of Columbia disciplinary system's approach to reciprocal discipline cases well illustrates its institutional tendency toward misapplication of the limited resources that exist to protect the public from the worst the legal profession has to offer. Bar Counsel employs approximately ten line attorneys who are responsible for the investigation and resolution of a wide array of matters involving allegations of misconduct in virtually every area of substantive law. There are well over five hundred cases opened for investigation every year.69 The efficient operation of the regulatory regime depends upon focusing Bar Counsel on the most serious cases of alleged misconduct.
Reciprocal discipline cases are instituted when an attorney admitted in the District of Columbia who is admitted to or is practicing before another court is sanctioned by another tribunal.70 If the order of discipline is from a "disciplining court," the Court enters an interim order that suspends the attorney if the disciplining court has imposed suspension and refers the matter to the Board for a prompt recommendation as to final discipline. While Rule XI, section 11(d) provides that the attorney must promptly show cause as to why identical discipline shall not be imposed, the Board has adopted rules of procedure requiring Bar Counsel to file an elaborate statement in every case analyzing the misconduct, the rule violations, and the sanction.71 The Board's rules and its interpretation of the Court's rules turn these matters away from Rule XI's contemplated summary procedures into a significant part of the workload of Bar Counsel. However, the far more pernicious aspect of the Board's approach to these matters is its unquenchable appetite to treat these matters de novo, often to the detriment of the public interest in protection from lawyers who have been determined to have engaged in serious ethical misconduct.
In 1986, the Court decided the Velasquez case in which it succinctly and accurately captured the nature of reciprocal discipline cases:
The rationale behind the use of [a deferential] standard in reciprocal discipline cases is plain. First, another jurisdiction has already afforded the attorney a disciplinary procedure that includes notice, an opportunity to be heard, sufficient proof of misconduct, and a determined sanction. There is no need for a de novo repetition of the entire process, and the burden of persuasion is reversed. second, there is merit in the idea of granting due deference-for its sake alone-to the opinions and actions of a sister jurisdiction with respect to attorneys over whom we share supervisory authority.72
At or about the same time the Court decided Velasquez, the Board began to embark on a path that has wasted significant resources by regularly recommending non-identical discipline, often in circumstances where the disciplined attorney did not respond to the show cause order. Where the recommended sanction is more lenient than that imposed by the disciplining court, Bar Counsel must determine whether the public interest requires it to file a brief challenging the downward departure. The Court must hear and decide the matter as it would an original case.
It must be understood from the outset of this discussion that the tribunal that holds evidentiary hearings, decides the facts, and determines the necessary sanction is the disciplining court. The Board has only whatever record is compiled by that court. Notwithstanding its lack of an original record, the Board frequently imposes its own views as to the nature and severity of the misconduct and the appropriate sanction.
The unfortunate impulse to treat these summary matters in a de novo fashion took root with the Board's recommendation and its subsequent adoption by the Court in In re Reid.73 The Reid case involved a Maryland attorney who had engaged in misappropriation and conversion of client funds. The Maryland Court of Appeals had indefinitely suspended the attorney with the right to seek reinstatement after thirty days. The attorney proved in the Maryland disciplinary proceeding that the misconduct was caused by his alcoholism and that he had been rehabilitated from his alcoholic condition. After he had served a suspension of sixty-three days, the Maryland Court had reinstated him with the additional sanction of supervised probation for a period of two years, subject to specified conditions.74
When the Reid case came to the District of Columbia as a reciprocal matter, the Court had recently decided In re Kersey.75 Kersey had engaged in twenty-four violations of the professional conduct rules, including three instances of misappropriation. The Court concluded that the violations were caused by alcoholism and that Kersey was substantially rehabilitated. The Court ordered disbarment, stayed the order, and placed Kersey on probation for five years.76 As to sanctions in cases involving alcoholism, the Court wisely noted: "We decline the opportunity in this opinion to write rules encompassing all future disciplinary case involving alcoholism. These cases are necessarily decided on an individual basis."77 The Board promptly failed to heed this statement in its treatment of the Reid case, recommending a sanction identical to that imposed in Kersey, i.e., disbarment stayed with the imposition of a five-year probation on terms that were in all respects identical to the Kersey probation order. The Board's mistaken view that the Kersey sanction was the only permissible one for cases of serious misconduct caused by alcoholism was approved by the Court, perhaps inspiring the Board to the more dangerous precedents that followed in the wake of Reid.
In re Garner78 is an illustrative example of inappropriate second-guessing of an order of discipline imposed by a sister jurisdiction. Garner had been suspended in New York for one year and was required to affirmatively demonstrate his fitness to practice law prior to reinstatement. His misconduct involved serious dishonesty in "supplying and notarizing alias names of the adoptive parents in connection with a California adoption."79 The Court, apparently persuaded by the Board's view that dishonesty is treated less seriously and deserves more lenient treatment in the District of Columbia than in New York, adopted the Board's recommendation of a six-month suspension without fitness.80 As a practical matter, the result was to welcome Garner to practice in the District of Columbia with no showing of rehabilitation notwithstanding that such a requirement had been imposed by the New York court. Empowered by the Court's approval, the Board extended the principle of de novo treatment of reciprocal cases to an extreme degree that the Court was unwilling to countenance.81
In In re Spann,82 the attorney had been disbarred in Florida for a woeful litany of serious violations in five separate matters. The misconduct included forgery and notarization of documents filed in court, breaches of trust, charging illegal fees, aiding unauthorized practice, and revealing confidential information. Spann had a prior history of discipline, had shown no remorse or recognition of his misconduct, and had not responded to the Court's show cause order directing him to advise the Court if he had any basis to object to the identical reciprocal discipline of disbarment.83 The Board concluded that the Florida Supreme Court's disbarment was primarily based on the forgery, and because the Board viewed forgery as less serious in D.C. than in Florida, recommended a two-year suspension. The Court chastised the Board for its "near-equivalent of a de novo review of the Florida proceeding . . . without the participation of counsel and the advantage of access to exhibits, transcripts, and other records."84 The Court ordered disbarment and cautioned the Board that, in circumstances where Bar Counsel and the attorney do not object to identical discipline, the Board's review should be limited to ensuring that such identical discipline does not result in a miscarriage of justice.85
Undeterred, the Board moved on to In re Berger,86 a case in which the New Jersey Supreme Court had suspended the attorney for two years and required that he show fitness for reinstatement. Berger had "committed a series of fraudulent transactions with various insurers on behalf of himself and his firm."87 He had filed an insurance claim on behalf of his firm for damage caused in a fire. He submitted a document in support of the claim that contained a forged signature with intent to defraud the insurance company.88 In addition, he executed a false jurat for personal gain.89 The Board recommended that Berger be automatically reinstated in the District of Columbia after two years regardless of whether he obtained reinstatement in New Jersey. The Court, after full briefing and argument, rejected the Board's recommendation and imposed identical discipline.90 The Court chided the Board that it "should not have questioned the factual conclusions reached in New Jersey, particularly where the Board did not have the benefit, as did the New Jersey Board, of being able to hear live testimony from witnesses and observe their demeanor."91
In re Shieh92 presents yet another striking example of the Board's predilection to engage in precisely the sort of inappropriate second-guessing of a tribunal with superior knowledge of the misconduct condemned in In re Spann and In re Berger. In In re Shieh, the Board rejected as unduly harsh the disbarment imposed by the Supreme Court of California in favor of a recommended two-year suspension. The Court summarized the ethical violations committed by the attorney and rejected the Board's inexplicably lenient view of the misconduct and imposed disbarment. The Court's summary stated
[the opinion of the California State Bar Court] reveals a history of lawsuits (many duplicative), frivolous motions (including for removal of cases to federal court and recusal of judges), meritless appeals, and disobedience of court orders, resulting at one point in [Shieh's] conviction on three counts of criminal contempt for which he escaped punishment by fleeing to his native Taiwan, where he remains a fugitive from justice in California.93
The Board's inclination towards a de novo approach to reciprocal discipline cases does not always result in a downward departure from the presumptively correct identical or functionally-equivalent discipline imposed by the disciplining court. In In re Zelloe,94 the attorney had entered into an agreed-upon disposition in Virginia for only a public reprimand for dishonesty, failure to act promptly, and conflicts of interest in connection with the payoff of a bank loan. Zelloe had an ownership interest and was an officer of the title company that had issued title insurance for a loan to his client.95 He had failed to timely record the bank's lien. The bank suffered substantial losses as a result. The Court adopted the Board's recommendation of the greater sanction of a ninety-day suspension in the District of Columbia.96 Likewise, in In re Zilberberg,97 the attorney had been suspended for three years in Virginia for misappropriation. The sanction for intentional or reckless misappropriation in the District of Columbia is disbarment unless the attorney can establish mitigation based on proof that (i) a condition such as alcoholism caused the misconduct and (ii) the attorney underwent substantial rehabilitation.98 The Board attempted to apply the D.C. law relating to misappropriation in a foreign case. The Court rejected the Board's mixing of domestic case
by Frisch, Michael S.
LINK
Can lawyers be trusted to police themselves? Self-governance is a cherished and well-entrenched prerogative of the legal profession. In the main, lawyers promulgate the ethical rules that govern their conduct in connection both with the practice of law and their personal lives. When questions are raised concerning the application of these ethical standards, lawyers dominate the decisions (i) whether or not to file charges, (ii) how disputed facts should be resolved, and (iii) with respect to the appropriate sanction. The preamble to the American Bar Association ("ABA") Model Rules of Professional Conduct posits that selfregulation, with ultimate regulatory authority vested in the courts, is necessary to "maintain the legal profession's independence from government domination" as "abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice."1
The ABA's concern about governmental, as opposed to judicial, authority over the legal profession may be well-founded. When there is an issue of an ethical violation, courts adopt one of several models to determine if there has been misconduct and to impose sanction: sitting judges, specialized administrative law judges, volunteers, or a combination of the three. Serious concerns about self-regulation exist when courts delegate substantial authority for fact-finding and sanction decision to volunteer lawyers rather than independent judicial or quasi-judicial officers. Volunteer systems use lawyers and laypersons to consider ethical violations, with the lawyers always having the majority vote. The District of Columbia has operated under such a volunteer system for over thirty years.
Unfortunately, the volunteer system has not worked. Cases are kept alive and pending for years. When the volunteer work is done, it far too frequently reflects the interests of the profession to the detriment of the public interest. This Article seeks to evaluate the District of Columbia attorney discipline system. As the title suggests, this Article concludes that the system is deeply flawed and in need of fundamental change.
The overarching purpose of any attorney disciplinary system is to protect the public and the courts from lawyers who have demonstrated by their conduct that they are unfit to fulfill the responsibilities of the legal profession. As Rule XI, section 2(a) states:
The license to practice law in the District of Columbia is a continuing proclamation . . . that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.
The potential danger encountered in achieving this purpose in the real world is well-expressed in the Preamble to the Model Rules of Professional Conduct: "The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."2
I. THE DISTRICT OF COLUMBIA DISCIPLINARY SYSTEM
The present District of Columbia Bar was established by the District of Columbia Court of Appeals (the "Court"), an entity created by the District of Columbia Court Reform and Criminal Procedure Act of 1970.3 Prior to that time, admission to and removal from the practice of law in the nation's capital was the responsibility of the United States District Court for the District of Columbia.4 Recognizing that it could not conduct original proceedings to adjudicate charges of misconduct against its members, the Court promulgated Rule XI, which created a disciplinary system and set out procedures by which such allegations are investigated, prosecuted, and resolved.5 While Rule XI has been amended several times since its initial adoption, the basic disciplinary structure has remained intact.6
The Office of Bar Counsel ("Bar Counsel") receives all complaints concerning allegations of ethical misconduct against members of the District of Columbia Bar.7 Bar Counsel makes an initial determination as to whether the allegations, if true, may warrant sanction. If the complaint is either unfounded on its face or outside the Court's disciplinary jurisdiction, no investigation is undertaken.8 If Bar Counsel decides to investigate, the accused attorney must be "afforded an opportunity to respond to the allegations."9 Bar Counsel may, subject to a process of review described more fully below, either dismiss the complaint, offer the attorney a confidential program of diversion, issue an informal admonition, or file formal charges of ethical misconduct.10 The Bar Counsel and its staff are appointed by and serve at the pleasure of an entity known as the Board on Professional Responsibility (the "BPR" or "Board")." The Board sets the compensation for all Bar Counsel personnel.12
The Board consists of seven attorneys and two laypersons who are appointed to three-year terms by the Court from lists of persons submitted by the Bar's Board of Governors.13 A Board member may serve two terms.14 The Board appoints hearing committees, which consist of two lawyers and one layperson.15 The hearing committee members also are eligible to serve two three-year terms.16
The hearing committees are convened when Bar Counsel files formal charges.17 The committee may receive documentary and live evidence and is required to file a report setting forth its findings of fact, conclusions of law, and recommendation for discipline within sixty days of the close of the hearing.18 Attorney members of hearing committees also serve as "contact members" and in such capacity review all proposed dispositions of Bar Counsel. The contact member may reject or suggest modifications to the proposed disposition.19 Thus, no action by Bar Counsel may be taken in any investigated matter without the approval of a hearing committee member. A hearing committee member may not serve as contact member and committee member in the same matter.20
The Board reviews all hearing committee reports.21 Either the attorney or Bar Counsel may note an exception to the findings, conclusion, and/or recommended sanction.22 If exceptions are filed by either party, briefs are submitted to the Board and an oral argument is held.23 Rule XI requires the Board to accept all findings of fact that are supported by substantial record evidence.24 The Board may make its own additional findings of fact where such facts are supported by clear and convincing evidence.25 The Board reviews the conclusions of law and sanction de novo. The Board may dismiss the matter or reprimand the attorney.26 In the vast majority of cases, the Board files a report with the Court transmitting its findings of fact, determination with respect to the charged ethical violations, and proposed final discipline.
The Board also is entrusted with responsibilities in several categories of matters that do not originate as Bar Counsel investigations. When an attorney admitted in the District of Columbia is found guilty or pleads guilty or nolo contendere to a criminal charge, the criminal action must be reported to the Court and the Board.27 If the offense is deemed a "serious crime," the attorney is suspended pending the outcome of the disciplinary proceeding.28 If the crime involves moral turpitude per se, the Board must recommend disbarment.29 If not, a hearing is held to aid in the determination of appropriate final discipline.30 When an attorney admitted in D.C. has been subject to an order of discipline from a "disciplining court,"31 the Court refers the matter to the Board to recommend whether reciprocal discipline should be imposed. In the vast majority of reciprocal discipline cases, no hearing is held and the Board's recommendation is based on the record of the jurisdiction that imposed the discipline. The Board also reviews hearing committee reports on petitions for reinstatement filed by attorneys who have been disbarred or suspended with a requirement that they demonstrate present fitness to practice.32
If either side objects to any aspect of a Board report and recommendation, the Court receives briefs and may hold oral argument.33 If Bar Counsel does not support the Board's recommendation, the Board's Executive Attorney represents the Board's position before the Court.34 The Court reviews questions of law de novo.35 The Court accepts the Board's findings of fact if supported by substantial record evidence and defers to the Board's proposed sanction "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted."36 The Court retains the exclusive final authority to impose sanctions that range from public censure and probation on the lenient side to suspension or disbarment for more aggravated instances of misconduct.37 Thus, the critical decisions in the District of Columbia Bar's regulatory regime, from the hiring and retention of the prosecutor, selection of the members of the hearing tribunal, review of the fact-finding, and the recommendation as to the presumptively correct sanction, are all entrusted to the Board.38
In an ideal world, Bar Counsel would conduct a prompt, fair, and thorough investigation. Where charges are deemed appropriate, the hearing would be held and the factual issues fairly resolved within the sixty-day time period established by Rule XI. The Board would then review the hearing committee report in adherence to the articulated standard of review. Finally, the Court would enter a final order in the case after mature consideration of the contentions of the parties. While the two levels of review might be criticized as cumbersome, resolution of the charges in a fair and expeditious manner would not be impossible.
Unfortunately, the world of the District of Columbia's bar disciplinary system is not an ideal one. Routine cases drag on for years with little indication that interminable delay is in any manner frowned upon. The fact-finding and legal conclusions of both the hearing committees and the Board far too often reflect an institutional hostility to both Bar Counsel and the victims of lawyer misconduct. Most lamentably, the Board has shown a notable tendency to create under the rubric of due process more rights for accused lawyers than would be granted to a criminal defendant facing loss of liberty. Further, the Board has reached interpretations of the rules of conduct that too often further the parochial and self-interested concerns of the legal profession. This Article seeks to detail these contentions and propose reform to restore credibility to the District's attorney regulation system.
II. AN ILLUSTRATIVE EXAMPLE
The disciplinary rules impose minimum standards of professional behavior. The rules are intended to place the Bar on notice of prohibited behavior and require the imposition of an appropriate professional sanction where a violation is found. The rules are not intended or designed to establish a standard that must be drawn with the precision of a criminal statute.39 Rather, the rules are "written by and for lawyers. The language of a rule setting guidelines for members of the bar need not meet the precise standards of clarity that might be required of rules of conduct for laymen."40
The prohibition against "conduct prejudicial to the administration of justice" encompasses a variety of improper acts in connection with the practice of law.41 That provision as interpreted by the Board was at issue in the case of In re Confidential.42 The Board report in the case well illustrates the proposition that matters of professional ethics should not be entrusted to volunteer practicing lawyers.
Bar Counsel filed charges alleging dishonesty and failure to cooperate with its investigation in August 1987 which were heard by a hearing committee in February 1989.43 The hearing committee recommended a finding of no ethical violations-by a majority with respect to the charge of dishonesty and unanimously with respect to the allegation that the attorney had failed to cooperate with Bar Counsel-in violation of the prohibition against conduct prejudicial to the administration of justice.44
The facts were not in dispute in any material regard. The attorney was representing three clients charged with conspiracy to violate federal civil rights law in connection with a homicide. The victim had been a government informant scheduled to testify against his clients in a drug case. The attorney learned the name of Keith Hamlet as a possible witness and instructed his investigator to locate Hamlet. Hamlet was then a fugitive, but at the urging of his family retained counsel, surrendered to federal authorities, and entered into an agreement to testify against the clients. At the time of the incident that led to the disciplinary charges, Hamlet was in the federal court cellblock awaiting transportation into protective custody.45
From sources unknown, the attorney learned that Hamlet was in the cellblock.46 He entered the cellblock area and asked to see Hamlet. The deputy marshal, on specific instructions from the prosecutor, refused to let the attorney see the witness.47 Hamlet also indicated that he did not wish to meet the lawyer.48 Thereafter, an indictment was returned against the attorney's clients and the attorney entered his appearance as counsel for all three charged defendants. On government motion, he was disqualified by the trial court based on his conflict of interest in the multiple representation of the three charged co-defendants. The ethical complaint was referred to Bar Counsel by the Maryland federal court's disciplinary committee.49
In re Confidential involved a complaint against an attorney admitted to practice in the District of Columbia in connection with his representation of clients in a matter before the federal district court in Maryland. The charges of dishonesty investigated by Bar Counsel related to the interaction between the attorney and the deputy marshal. Bar Counsel charged that the attorney had made misrepresentations by telling the deputy that he had been hired by Hamlet when he knew that another attorney had been hired. The evidence did not show that the attorney knew that Hamlet had hired counsel. Rather, the attorney was found to have stated to the deputy that "[Hamlet's] family wants him to have an attorney, and I'm an attorney in the case."50 This statement was clearly false and/or misleading, and was uttered in a context that could have undermined the security of Hamlet who was cooperating against clients accused of already having murdered a witness against them.51 Nonetheless, the hearing committee declined to find the violation and attacked the motives of the prosecutors.52 The Board agreed, holding that the failure to prove that the attorney knew that Hamlet had hired counsel was a fatal variance, a concern raised by the Board sua sponte and conceded by Bar Counsel.53 However, the Board did acknowledge that the attorney's statements to the deputy were false.54
The attorney's false statements were only part of the problem. The resolution of the failure-to-cooperate charge demonstrates the thesis of this Article. Attorneys are ethically obligated to respond to Bar Counsel's inquiry absent a legitimate Fifth Amendment claim.55 The attorney had been requested by Bar Counsel on five separate occasions to provide a substantive response to the complaint.56 He ignored every deadline set. At one juncture, he visited Bar Counsel's office, spoke to an Assistant Bar Counsel, and delivered a letter seeking additional time to respond, stating that "the correspondence contains information that is not accurate or complete," and promising a further response, which was never forthcoming despite Bar Counsel's written demands.57
Shockingly, the Board found the letter to constitute a general denial of the complaint that satisfied the attorney's ethical obligation to respond.58 The Board's order regarding both the dishonesty and failure to cooperate charges opens with an attack on criminal discovery rules and the motives of prosecutors in general, and opines that "[t]he incident . . . is electrified with this tension."59 The point of view of the practicing criminal defense lawyer permeates the order, finding technical defenses to both the proven dishonesty and failure to answer the complaint charges.
A relatively rare Board dissent accurately characterizes the dismissal order. The dissenters note that "the Board requires Bar Counsel's pleadings to be held to a standard of precision higher than the standard to which the Supreme Court holds prosecutors in capital cases" and suggest that the Board's attack on the adequacy of criminal discovery is "ironic . . . in the context of a case that arises out of the murder of a prosecution witness, allegedly to prevent him from testifying."60 Such a technical pleading standard was particularly inappropriate given the lack of response from the attorney.61 Indeed, Bar Counsel had withdrawn a conflict of interest charge after learning the underlying facts.62
As to the charge of dishonesty, the dissent reflects an understanding of the need to consider the public interest and perception of self-regulation that is notably absent from the Board order dismissing the charges. The attorney, who was on notice of a charge of dishonesty in his statements to the deputy, was found to have engaged in such dishonesty but was absolved because surplusage in the charging document was not proven.63 In other words, the evidence demonstrated that the accused attorney had made false representations to the deputy in a somewhat different manner than had been charged.64 An informed public would indeed wonder about the efficacy of self-regulation when technicalities are discovered and applied by volunteer lawyer adjudicators to excuse lies. The acceptance of a "general denial" as an adequate response
sets an unreasonably low standard as to what a[n attorney] must do to comply with [the pertinent Board Rule], [and] can only encourage inadequate responses, which will result in further delay while Bar Counsel requests additional information or invokes formal tools of discovery or in unnecessary petitions being brought. Neither result is desirable . . . .65
The dissent captures the essence of the overarching problem. The Board order does not read as the decision of a neutral arbitrator resolving a disputed question of fact or law. Rather, the order reflects the concerns of the practicing lawyer who views the misconduct from the perspective of a criminal defense attorney. The focus is on the motives of the prosecutor rather than the conduct of the accused attorney.
It is noteworthy that, other than the power to subpoena documents, Bar Counsel has no discovery tools such as interrogatories or requests for admissions to aid in its investigations. There is no disciplinary equivalent to the grand jury to take evidence prior to the institution of formal charges. By contrast, many jurisdictions not only give such tools to their disciplinary prosecutors, but allow for default judgments in attorney discipline matters where the attorney does not timely respond to the process.66 Given that the only method of obtaining information is through the voluntary cooperation of accused lawyers and other witnesses, the precedent of In re Confidential, which the Court did not review,67 hamstrings the ability of Bar Counsel to investigate allegations of misconduct.
One can search the disciplinary law of every other American jurisdiction and not find a comparable precedent.68
III. DUE DEFERENCE: RECIPROCAL DISCIPLINE
The District of Columbia disciplinary system's approach to reciprocal discipline cases well illustrates its institutional tendency toward misapplication of the limited resources that exist to protect the public from the worst the legal profession has to offer. Bar Counsel employs approximately ten line attorneys who are responsible for the investigation and resolution of a wide array of matters involving allegations of misconduct in virtually every area of substantive law. There are well over five hundred cases opened for investigation every year.69 The efficient operation of the regulatory regime depends upon focusing Bar Counsel on the most serious cases of alleged misconduct.
Reciprocal discipline cases are instituted when an attorney admitted in the District of Columbia who is admitted to or is practicing before another court is sanctioned by another tribunal.70 If the order of discipline is from a "disciplining court," the Court enters an interim order that suspends the attorney if the disciplining court has imposed suspension and refers the matter to the Board for a prompt recommendation as to final discipline. While Rule XI, section 11(d) provides that the attorney must promptly show cause as to why identical discipline shall not be imposed, the Board has adopted rules of procedure requiring Bar Counsel to file an elaborate statement in every case analyzing the misconduct, the rule violations, and the sanction.71 The Board's rules and its interpretation of the Court's rules turn these matters away from Rule XI's contemplated summary procedures into a significant part of the workload of Bar Counsel. However, the far more pernicious aspect of the Board's approach to these matters is its unquenchable appetite to treat these matters de novo, often to the detriment of the public interest in protection from lawyers who have been determined to have engaged in serious ethical misconduct.
In 1986, the Court decided the Velasquez case in which it succinctly and accurately captured the nature of reciprocal discipline cases:
The rationale behind the use of [a deferential] standard in reciprocal discipline cases is plain. First, another jurisdiction has already afforded the attorney a disciplinary procedure that includes notice, an opportunity to be heard, sufficient proof of misconduct, and a determined sanction. There is no need for a de novo repetition of the entire process, and the burden of persuasion is reversed. second, there is merit in the idea of granting due deference-for its sake alone-to the opinions and actions of a sister jurisdiction with respect to attorneys over whom we share supervisory authority.72
At or about the same time the Court decided Velasquez, the Board began to embark on a path that has wasted significant resources by regularly recommending non-identical discipline, often in circumstances where the disciplined attorney did not respond to the show cause order. Where the recommended sanction is more lenient than that imposed by the disciplining court, Bar Counsel must determine whether the public interest requires it to file a brief challenging the downward departure. The Court must hear and decide the matter as it would an original case.
It must be understood from the outset of this discussion that the tribunal that holds evidentiary hearings, decides the facts, and determines the necessary sanction is the disciplining court. The Board has only whatever record is compiled by that court. Notwithstanding its lack of an original record, the Board frequently imposes its own views as to the nature and severity of the misconduct and the appropriate sanction.
The unfortunate impulse to treat these summary matters in a de novo fashion took root with the Board's recommendation and its subsequent adoption by the Court in In re Reid.73 The Reid case involved a Maryland attorney who had engaged in misappropriation and conversion of client funds. The Maryland Court of Appeals had indefinitely suspended the attorney with the right to seek reinstatement after thirty days. The attorney proved in the Maryland disciplinary proceeding that the misconduct was caused by his alcoholism and that he had been rehabilitated from his alcoholic condition. After he had served a suspension of sixty-three days, the Maryland Court had reinstated him with the additional sanction of supervised probation for a period of two years, subject to specified conditions.74
When the Reid case came to the District of Columbia as a reciprocal matter, the Court had recently decided In re Kersey.75 Kersey had engaged in twenty-four violations of the professional conduct rules, including three instances of misappropriation. The Court concluded that the violations were caused by alcoholism and that Kersey was substantially rehabilitated. The Court ordered disbarment, stayed the order, and placed Kersey on probation for five years.76 As to sanctions in cases involving alcoholism, the Court wisely noted: "We decline the opportunity in this opinion to write rules encompassing all future disciplinary case involving alcoholism. These cases are necessarily decided on an individual basis."77 The Board promptly failed to heed this statement in its treatment of the Reid case, recommending a sanction identical to that imposed in Kersey, i.e., disbarment stayed with the imposition of a five-year probation on terms that were in all respects identical to the Kersey probation order. The Board's mistaken view that the Kersey sanction was the only permissible one for cases of serious misconduct caused by alcoholism was approved by the Court, perhaps inspiring the Board to the more dangerous precedents that followed in the wake of Reid.
In re Garner78 is an illustrative example of inappropriate second-guessing of an order of discipline imposed by a sister jurisdiction. Garner had been suspended in New York for one year and was required to affirmatively demonstrate his fitness to practice law prior to reinstatement. His misconduct involved serious dishonesty in "supplying and notarizing alias names of the adoptive parents in connection with a California adoption."79 The Court, apparently persuaded by the Board's view that dishonesty is treated less seriously and deserves more lenient treatment in the District of Columbia than in New York, adopted the Board's recommendation of a six-month suspension without fitness.80 As a practical matter, the result was to welcome Garner to practice in the District of Columbia with no showing of rehabilitation notwithstanding that such a requirement had been imposed by the New York court. Empowered by the Court's approval, the Board extended the principle of de novo treatment of reciprocal cases to an extreme degree that the Court was unwilling to countenance.81
In In re Spann,82 the attorney had been disbarred in Florida for a woeful litany of serious violations in five separate matters. The misconduct included forgery and notarization of documents filed in court, breaches of trust, charging illegal fees, aiding unauthorized practice, and revealing confidential information. Spann had a prior history of discipline, had shown no remorse or recognition of his misconduct, and had not responded to the Court's show cause order directing him to advise the Court if he had any basis to object to the identical reciprocal discipline of disbarment.83 The Board concluded that the Florida Supreme Court's disbarment was primarily based on the forgery, and because the Board viewed forgery as less serious in D.C. than in Florida, recommended a two-year suspension. The Court chastised the Board for its "near-equivalent of a de novo review of the Florida proceeding . . . without the participation of counsel and the advantage of access to exhibits, transcripts, and other records."84 The Court ordered disbarment and cautioned the Board that, in circumstances where Bar Counsel and the attorney do not object to identical discipline, the Board's review should be limited to ensuring that such identical discipline does not result in a miscarriage of justice.85
Undeterred, the Board moved on to In re Berger,86 a case in which the New Jersey Supreme Court had suspended the attorney for two years and required that he show fitness for reinstatement. Berger had "committed a series of fraudulent transactions with various insurers on behalf of himself and his firm."87 He had filed an insurance claim on behalf of his firm for damage caused in a fire. He submitted a document in support of the claim that contained a forged signature with intent to defraud the insurance company.88 In addition, he executed a false jurat for personal gain.89 The Board recommended that Berger be automatically reinstated in the District of Columbia after two years regardless of whether he obtained reinstatement in New Jersey. The Court, after full briefing and argument, rejected the Board's recommendation and imposed identical discipline.90 The Court chided the Board that it "should not have questioned the factual conclusions reached in New Jersey, particularly where the Board did not have the benefit, as did the New Jersey Board, of being able to hear live testimony from witnesses and observe their demeanor."91
In re Shieh92 presents yet another striking example of the Board's predilection to engage in precisely the sort of inappropriate second-guessing of a tribunal with superior knowledge of the misconduct condemned in In re Spann and In re Berger. In In re Shieh, the Board rejected as unduly harsh the disbarment imposed by the Supreme Court of California in favor of a recommended two-year suspension. The Court summarized the ethical violations committed by the attorney and rejected the Board's inexplicably lenient view of the misconduct and imposed disbarment. The Court's summary stated
[the opinion of the California State Bar Court] reveals a history of lawsuits (many duplicative), frivolous motions (including for removal of cases to federal court and recusal of judges), meritless appeals, and disobedience of court orders, resulting at one point in [Shieh's] conviction on three counts of criminal contempt for which he escaped punishment by fleeing to his native Taiwan, where he remains a fugitive from justice in California.93
The Board's inclination towards a de novo approach to reciprocal discipline cases does not always result in a downward departure from the presumptively correct identical or functionally-equivalent discipline imposed by the disciplining court. In In re Zelloe,94 the attorney had entered into an agreed-upon disposition in Virginia for only a public reprimand for dishonesty, failure to act promptly, and conflicts of interest in connection with the payoff of a bank loan. Zelloe had an ownership interest and was an officer of the title company that had issued title insurance for a loan to his client.95 He had failed to timely record the bank's lien. The bank suffered substantial losses as a result. The Court adopted the Board's recommendation of the greater sanction of a ninety-day suspension in the District of Columbia.96 Likewise, in In re Zilberberg,97 the attorney had been suspended for three years in Virginia for misappropriation. The sanction for intentional or reckless misappropriation in the District of Columbia is disbarment unless the attorney can establish mitigation based on proof that (i) a condition such as alcoholism caused the misconduct and (ii) the attorney underwent substantial rehabilitation.98 The Board attempted to apply the D.C. law relating to misappropriation in a foreign case. The Court rejected the Board's mixing of domestic case