No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia
by Frisch, Michael S.

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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 apples with reciprocal case oranges and imposed identical discipline." The point is that one simply never knows how the Board will react to a reciprocal case except to note that the approach will often be idiosyncratic and will result in the draining of limited disciplinary resources.100

The case of Robert Rehberger demonstrates both the glacial pace of D.C. bar discipline and the Board's institutional hostility to the better informed views of lawyer misconduct of the court that actually conducts the proceeding that results in discipline. Rehberger practiced law in Georgia. He was convicted by a jury of felony false imprisonment, misdemeanor sexual battery, and simple battery. The victim was his client, who had sought his assistance to obtain an uncontested divorce. During a meeting, Rehberger had closed his office door and forced his attentions on his young and vulnerable client. She promptly reported the assault to the police. The evidence at trial revealed that two other women clients had been subjected to similar mistreatment.101 The trial judge who heard the testimony of the witnesses ordered the attorney disbarred. The order of disbarment was affirmed by the Supreme Court of Georgia.102 Similarly, other jurisdictions where the attorney was admitted also ordered reciprocal disbarment.103

The Board, concerned that disbarment might be too harsh for a criminal convicted of false imprisonment and sexual assault of a vulnerable client, declined to recommend reciprocal discipline, ordering an evidentiary hearing before the sanction was imposed.104 A hearing committee conducted such a proceeding and recommended disbarment, but the Board has yet to make a decision.105 Now, seven years after conviction, final action remains a distant prospect. The matter has been pending in the D.C. bar disciplinary system for over six years.

IV. PLEA BARGAINING FETISHISM

An adjudicative body charged with protection of the public, if slow and cumbersome, would logically look for ways to streamline its operations and creatively seek to resolve disputed matters through agreement and stipulation. Bar Counsel's attempts to remove unethical lawyers by such means have met with unwavering resistance from the Board. The cases described below show an institutional distrust of the exercise of discretion by Bar Counsel that is particularly inexplicable in light of the fact that all Bar Counsel personnel are appointed with the Board's approval and serve at the Board's pleasure.

In re Roxborough106 arose out of a series of ethical violations committed by an attorney who was retained to review a custody and child support order. He was found by a hearing committee to have seriously disregarding his obligations to the client. The Board recommended a thirty-day suspension for the misconduct. Neither party noted an exception to the recommendation. While the matter was awaiting final Court action, Bar Counsel and the attorney (who was represented by counsel) filed a joint motion asking that the sanction be increased to add a fitness requirement. The attorney filed a statement reciting that he "recognizefd] that he can not handle his obligation to continue to practice."107 The joint motion did not bind Bar Counsel to dispose of any cases or affect any other pending proceeding.108 In other words, the attorney advised the Court that he could not competently represent clients and asked for a sanction that would ensure he would not resume practice until his competence was established. Bar Counsel agreed that the public interest would be served by such an order. No pending cases were compromised. It is hard to imagine any legitimate objection to the proposal.

The Board objected. It filed a unanimous statement with the Court characterizing the joint motion as an "unprecedented plea agreement" that "deprived the Board and the Court of a full opportunity to address the grounds that would support a fitness requirement" and "contravenefd] the fundamental system of review."109 The Board further asserted that "[m]aintaining the integrity of disciplinary proceedings counsels against permitting this eleventh-hour privately arranged deal to suspend or outflank the Board's ordinary reviewing jurisdiction."110 The fact that the attorney conceded he could not ethically practice and that no charges were dismissed as a result were of less importance to the Board than the assertion of its prerogatives.

Fortunately, the Court rejected the Board's proposal to ignore the joint motion. Noting that "the primary purpose of the disciplinary system is protection of the interest of the public"111 and while expressing sympathy with the Board's concerns, the Court imposed the fitness requirement without further proceedings because "the public interest will be best served by an immediate imposition of sanction without further delay."112

The issue resurfaced with even greater rancor on the part of the Board toward Bar Counsel in In re Kitchings.113 The allegations of misconduct related to the attorney's failure to act diligently on behalf of four separate clients who had retained the attorney to prosecute claims of personal injuries. Bar Counsel and the attorney entered into two stipulations of fact and a memorandum of understanding which the hearing committee accepted as evidence. Part of the stipulations related to uncharged allegations of misconduct in twelve other pending complaints and investigations. The hearing committee found that the full record showed a pattern of misconduct demonstrating the inability of the attorney to manage his practice.114 The hearing committee recommended that the attorney be subject to a six-month suspension with fitness and neither party noted an objection.

Alarm bells of concern went off at the Board. The Board characterized the hearing committee proceeding as a "negotiated disposition for which the hearing committee was completely unprepared."115 Despite the inconvenient facts that the accused lawyer was represented by counsel and had not claimed that the stipulation as to the uncharged misconduct was involuntary on his part, the Board concluded that "the danger is real that [the attorney's] agreement to the bargain and his stipulations to the misconduct on which the bargain was based were not knowingly and voluntarily entered."116 The Board's unanimous view was that the disciplinary system should ignore the stipulations as to the uncharged conduct and the pattern of unethical behavior that was set out by the stipulation.117 The Board was of the view that Bar Counsel and the attorney must be compelled to proceed to a full-blown hearing of the uncharged cases, a prospect that served no interest except the vindication of the Board's own prerogatives. Rejecting efficiency and public protection as goals of the disciplinary system, the Board opined that "there is a danger that pushing forward on this record will undermine confidence in the fairness of the system."118

Whose confidence? Bar Counsel was satisfied with a result that removed the attorney from practice, thereby diminishing the prospect of future victims. The clients who complained to Bar Counsel had concessions of misconduct for each complaint and, in any event, got nothing from the disciplinary system but the satisfaction of having helped remove a bad lawyer. Restitution does not involve consequential damages and could be made part of an agreed disposition.119 The attorney was satisfied because he was freed from an endless litigation cycle that would only result in the fitness sanction at the end of the process. The only aggrieved party was the Board.

Fortunately, the Court restored a measure of common sense to the process. The Court rejected the fundamental position of the Board that the procedural posture of the case was a "plea bargain."120

[W]e perceive no true dismissal or plea bargain in Bar Counsel's actions. Bar Counsel presented all fifteen counts to the hearing committee, the Board and this court, and included them in his recommended sanction. If any of the counts were not taken into account in the sanction imposed as part of this proceeding, Bar Counsel retained the authority to prosecute them separately . . . [t]he purpose of the memorandum was not to reduce Kitchings's penalties, but, by its terms to allow him to avoid the cost of litigation.121

The Court found that the Board had erred in its conclusion that the stipulation was not entered into voluntarily. The Court further held that the Board erred in its refusal to consider the stipulations and remanded the matter for a fresh recommendation that considered the full record of misconduct.122

V. DEFENDING THE INDEFENSIBLE: ARNEJA AND AUSTIN

The purposes of sanction in attorney discipline cases are to uphold the integrity of the legal profession and protect the public from those attorneys who by their conduct have forfeited the confidence of the Court. The ultimate sanction is disbarment, which in functional effect is a five-year suspension with fitness.123 The Board's institutional reluctance to impose disbarment in cases where the client has been subjected to gross mistreatment is best illustrated in two cases of particularly ugly and protracted client abuse. One of the cases also demonstrates how a hearing committee's findings against the weight of evidence and common sense were reached with a view toward saving a thoroughly undeserving lawyer from the ultimate sanction. The first case this Article examines is In re Arneja.124

Harnan Arneja was a lawyer with a solo practice in which he represented low-income clients in a variety of matters including personal injury cases.125 His clients in this disciplinary case were Arcadio Gonzalez and Reyna Castillo. He also represented the estate of Mr. Gonzalez's wife. The clients were refugees from El Salvador who spoke no English. Reyna Castillo was twenty-two years old and had just arrived in the United States at the time of the accident.126 Arneja spoke no Spanish and communicated with the clients through an interpreter.127

The underlying claim arose from an automobile accident in which a tree fell on the car that Mr. Gonzalez was driving. Both Mr. Gonzalez and Ms. Castillo were injured. Ana Edith Rodriguez, the wife of Mr. Gonzalez, was killed.128 The tree was on property under United States Park Service control. The primary motivation of the clients in seeking legal representation was to secure compensation to pay the medical bills incurred as a result of the accident.129 The clients had the misfortune to place their trust in Arneja. As a result, the insurance payments earmarked to pay their bills pursuant to the Personal Injury Protection ("PIP") program were used to pay Arneja's personal expenses. When the clients discharged him, he engaged in serious dishonesty to the detriment of his former clients. He was saved from disbarment only by a hearing committee finding and a system apparently incapable of evaluating the misconduct from the point of view of the victim.

The facts underlying the disciplinary action are as follows: Arneja received the initial PIP payments in two checks totaling $5,000. He placed the funds in his escrow account, as required when holding funds on behalf of clients.130 Shortly thereafter, he transferred the funds to his operating account to pay his own business and personal debts. Many of the escrow checks that he wrote were payable to "cash."131 The clients got nothing and Arneja made no payments to the medical providers from the PIP funds on their behalf. The only money the clients received was a $1,000 "loan" that Arneja made to Mr. Gonzalez.132 Arneja also treated a third PIP check as his own money.133 Throughout the period, Arneja's trust account balance stood well below the amounts he had received on his clients' behalf.134

Mr. Gonzalez came to realize that he could not rely on Arneja. He hired another lawyer as his counsel. Arneja received a letter from Gonzalez terminating his representation and directing Arneja to send the file to his new lawyer. Arneja refused to turn the file over to successor counsel until his "investment of time and money" was resolved. He later turned over some documents (but not until after the events discussed below) but never delivered any of the PIP funds.135

After the clients fired him, Arneja filed a complaint in federal district court against the United States Park Service in which he falsely named himself as attorney for Gonzalez.136 He then made a token payment to Castillo in an attempt to secure her authority to proceed as her counsel.137 He never told the clients that a lawsuit had been filed on their behalf.138 With respect to the medical bills, the Court stated: "contrary to Mr. Gonzalez's expectation that PIP money would be used to pay his medical bills, Arneja did not pay those bills, and Mr. Gonzalez's wages ended up being garnished by the Washington Medical Center where he had received treatment."139

Quite a tale of lawyer abuse: inexperienced, unsophisticated, and trusting clients fleeced by a predatory member of a supposedly learned profession. The lawyer used the meager payments that he had received in trust to pay his own creditors rather than the clients' medical bills. His failure to apply the funds as his clients had wished resulted in one client having his wages garnished by the hospital where he had been treated for the injuries sustained in the accident. In order to advance his claim of entitlement to fees, the lawyer filed a lawsuit in which he falsely claimed authority to proceed and failed to advise the client of the lawsuit. Given these proven facts, it is hard to imagine a basis on which to sympathize with Arneja. The hearing committee and the Board apparently felt that a measure of such sympathy was appropriate. One might fairly doubt that the public would be quite so professionally forgiving.

The fighting issue at the hearing was whether the clients had consented to Arneja's use of the PIP funds as his own. If not, the use of the funds amounted to misappropriation, for which disbarment would be a virtual certainty. Under the peculiar former version of D.C. Rule 1.15, funds advanced to a lawyer for litigation costs were treated as the property of the lawyer.140 Notwithstanding (i) the testimony of the clients that the money was earmarked to pay their medical bills and was their motivation in hiring counsel; (ii) the implausibility of a knowing consent in light of the language barrier; (iii) the serious dishonesty in connection with the filing of the lawsuit after discharge; (iv) language in the retainer agreement that specifically provided that the PIP funds would be used to pay medical bills; and (v) the fact that Arneja deposited the funds in escrow and never used the PIP funds as litigation expenses, the hearing committee concluded that the clients had consented to his use of the PIP payments for litigation expenses.141 The hearing committee clearly understood that a finding of misappropriation meant disbarment, and its apparent sympathies lay with the lawyer.142

The hearing committee recommended a one-year suspension without a requirement that Arneja demonstrate fitness, a sanction in turn recommended by the Board, which stated that "[Arneja] was fortunate indeed to have the 'technical' defense to misappropriation afforded by the application here of Rule 1.15(d); but for the wording of the rule, this would be a clear case of misappropriation requiring disbarment."143 The Court adopted the Board's proposed sanction, the functional effect of which was to allow the attorney to resume practice after a year without any showing of rehabilitation.144 After serving his period of suspension, Arneja is now free to practice with no restrictions or disclaimers. Let the next client beware.

The reader might wonder what an attorney must do-beyond taking the clients' money, causing the client's wages to be garnished, and filing a fraudulent lawsuit after being fired-in order to get the Board to recommend that the attorney be disbarred. Even without misappropriation, the client abuse in the Arneja case would warrant a far more severe sanction than that imposed. The lamentable case of Eugene Austin underscores the lenient approach of the Board to gross abuse of vulnerable clients.

Eugene Austin was introduced to Ms. Lettie Saunders by relatives of hers that were Austin's neighbors. Saunders sought legal assistance in connection with a probate claim involving her brother's estate. She was seventy-three years old at the time and had a fifth-grade education. She had worked as a domestic employee until her retirement. Her income was limited to Social Security benefits that amounted to less than $6,000 in the year she met Austin.145 The hearing committee concluded that Austin's misconduct involved "not only dishonesty, but dishonesty designed to harm one of society's most vulnerable individuals, an elderly, uneducated woman who had placed her trust in her lawyer."146

As the preceding quote suggests, this was a case where the hearing committee fairly found the facts. Having secured his clients' trust, Austin bilked Ms. Saunders out of her life savings through a series of ten "loans" for which he provided no collateral or security. In order to fund the "loans," he induced her to mortgage her home, causing her to pay 20% interest on the mortgage while agreeing to repay her at a rate of 10%. He was aware of her limited resources and vulnerability, yet he failed to inform her of the advisability of independent counsel for the transactions, as required by ethics rules.147 He also failed to make any repayments, either when due or otherwise.148

Ms. Saunders then hired another lawyer as counsel to assist in recovering the funds. In response, Austin "drafted, typed and sent" a letter stating that Ms. Saunders was satisfied with Austin and purporting to discharge successor counsel.149 On the same day that the letter was prepared, Austin filed a petition for voluntary bankruptcy that failed to list Ms. Saunders as a creditor or otherwise provide her with notice of the proceeding.150 The attempts to secure any repayment were ignored by Austin.151

Austin then closed his law practice and moved to Georgia. He made a few token payments to Ms. Saunders, leaving a balance owed of over $25,000. He rebuffed the new lawyer's attempts to resolve the matter. Frustrated and without resources to pursue the matter, Ms. Saunders sought the help of her nephew, who filed an ethical complaint on her behalf.152 Bar Counsel opened an investigation and directed Austin to respond within ten days, which he failed to do.153 Bar Counsel moved the Board for an order compelling a response, which was granted. Austin then responded, falsely accusing Ms. Saunders of perjury in the probate matter.154 He failed to appear at or participate in the hearing. The hearing committee found that he engaged in a pattern of predatory misconduct, found no mitigating factors, and recommended disbarment:

In this case, disbarment is necessary to protect the public, the courts and the legal profession from lawyers who would hold themselves out as trusted advisors and then utterly betray that trust by preying upon the very individuals who need their help most. . . [Austin] is morally unfit to be an attorney. Given the terms of the loan[s] and [Austin's] financial condition, the taking of Ms. Saunders' funds on ten separate occasions was tantamount to theft as there was virtually no prospect [he] would repay her.155

Austin did not note any exception to the hearing committee's findings with respect to the facts and the ethical violations, and did not challenge the disbarment recommendation. Without notice to Bar Counsel of any concerns about the findings or recommendation, the Board issued a recommendation that fairly reeks of sympathy for the poor attorney without a shred of recognition of the depredations perpetrated on this vulnerable victim.156 The Board majority rejected the hearing committee's conclusion that the conduct was tantamount to theft, credited Austin's good faith in intending to repay although he never had followed through on his promises and had fraudulently omitted the indebtedness in his bankruptcy petition, and went so far as to suggest that Ms. Saunders may have perjured herself in the probate matter despite the hearing committee's square rejection of that claim.157 The Board scoured the record for supposed mitigating evidence in spite of the hearing committee's finding of no mitigation, crediting assertions in Austin's initial response that had been not been subject to cross-examination or found by the hearing committee.158 Shockingly, the Board called the case a close one for a short suspension and recommended an eighteen month suspension with fitness and restitution.159 A dissent was filed by a single Board member that aptly characterized the proposed sanction as a gift.160

Fortunately, the Court rejected the Board's attempt to minimize the ethical misconduct of the lawyer and imposed disbarment.161 The case remains a lesson of the Board's tendency toward unwarranted leniency that should negate any suggestion that it be given greater authority to determine sanctions for attorney misconduct.

In the Board's view, one form of dishonest conduct is regarded as far more serious than the conduct found in Arneja and Austin-cases where the victim is not an unsophisticated client but a major law firm. Such cases are uniformly regarded as worthy of the ultimate sanction.162 Even where disbarment is not imposed, the Board has demonstrated a persistent and consistent point of view that vindicates the rights of law firms as complaining parties as a special category meriting severe sanction.163

A recent Board report and recommendation may be fairly regarded as a hopeful sign that the attitude of institutional sympathy for accused lawyers that drives decisions such as Arneja and Austin may be waning. The Board report involves an attorney named John Midlen.164

Midlen was an attorney in private practice with a specialization in telecommunications law.165 He was retained to represent Revs. Jimmy Swaggert and Jerry Falwell in connection with royalty payments paid to and distributed by the Library of Congress to a group of televangelists known as the Devotional Group Claimants.166 Midlen received and escrowed a series of payments on behalf of both clients over a period of years.167 During the course of a dispute with Rev. Swaggert over payment of fees, Midlen paid himself out of the escrowed royalty payments on a number of occasions. He failed to advise Swaggert of either the receipt of the funds or his self-help to the fee payments. He failed to provide representatives of Rev. Swaggert with a requested accounting of several years of his service, which if provided would have disclosed his payments of fees from the escrowed funds. He also signed a settlement agreement over the client's expressed objection and concealed that he had done so. Bar Counsel charged, inter alia, misappropriation of entrusted funds, failure to provide a requested accounting, and dishonesty in connection with the execution of the settlement agreement.168

The hearing committee rejected all the charges except for the failure to provide an accounting and recommended an informal admonition-the most lenient form of public discipline available in the District of Columbia. A significant portion of the committee's report was devoted to a diatribe against the Swaggert witnesses and an attack on the motives and professionalism of Bar Counsel. The act of signing the settlement agreement contrary to client's instruction was deemed "ministerial." For reasons unknown, the committee declined to even address the most serious charge of misappropriation, finding that such misconduct had not been charged.169

The Board correctly rejected the approach of the hearing committee. The Board found that misappropriation had been properly charged and proven.170 The Board further found that Midlen had engaged in dishonest conduct in connection with the settlement agreement and in failing to inform Swaggert of material facts.171 The Board recommended that the attorney be disbarred.172

VI. THE RIGHTS OF THE DISBARRED

The Board is empowered with the authority to "adopt rules, procedures, and policies not inconsistent with [Rule XI] or any other rules of [the] Court."173 An examination of the rule promulgated by the Board to protect the supposed rights of attorneys who have been either disbarred or suspended with a fitness requirement is instructive in terms of understanding the agenda of the District of Columbia's volunteer lawyer system. Board Rule 9.9, which applies to reinstatement petitions, styled "evidence of unadjudicated acts of misconduct" can only be characterized as an elaborate procedure designed out of a wellspring of concern for the rights of the disbarred. The Rule reflects the Board's fixation on its view of due process and its utter lack of concern for the protection of the public from attorneys who have by their adjudicated misconduct demonstrated their unfitness to practice law.

Disciplinary proceedings, as has been previously noted, exist to promote confidence in the competence and integrity of the legal profession. The rules of evidence are not strictly applied, as any evidence relevant to the fitness of the attorney must be considered.174 There is no statute of limitations for any disciplinary offense, as the focus of all such proceedings is on the present fitness of the accused attorney.175 Criminal concepts such as venue also are not applied to these matters.176 One would think that the open consideration of all relevant evidence would apply with particular force to a reinstatement proceeding, involving as it does the present fitness of a disciplined attorney whose past conduct has shown a serious inability to adhere to minimum standards of ethical behavior. The Board's rule, motivated by an apparent desire to protect such lawyers, is the work of an entity "drunk on due process."177

Board Rule 9.9 prohibits Bar Counsel from introducing evidence at a hearing on a petition for reinstatement of any acts of misconduct that occurred prior to the order of disbarment or suspension with fitness unless Bar Counsel (i) proves that the attorney received notice that Bar Counsel reserved the right to present the facts and circumstances of the unadjudicated acts of misconduct and (ii) gives notice of its intent to raise the misconduct at reinstatement in the Answer to the Petition. Then, Bar Counsel is required to make a written proffer of its evidence to support admissibility of the evidence and satisfy the hearing committee chair that the misconduct can be established by a preponderance of the evidence. Because the rule, by its terms, applies to allegations about which Bar Counsel is aware at the time the attorney is disciplined, undiscovered misconduct that occurred before disbarment but later comes to light apparently is inadmissible.

This rule simply makes no sense, unless one is inclined to view the disbarred as a class worthy of special consideration and treatment. When an attorney has engaged in misconduct meriting lengthy suspension or disbarment, there often is a pattern of behavior that is undiscovered for years. Bar Counsel's limited resources do not permit the luxury of continuing to prosecute cases working their way through the system that are unresolved when the attorney is suspended or disbarred.178 Any act or omission by a Bar applicant that reflects adversely on the applicant's present character and fitness to practice law is considered in the determination whether or not to grant the license. Any rule that operates to place technical hurdles in front of the disciplinary prosecutor in the process of evaluating the present fitness of a previously disciplined attorney frustrates the fundamental purpose of regulation. The Court has never had occasion to review this rule and presumably would invalidate it if relevant evidence is ever excluded by its operation. Its mere existence signals a misunderstanding on the part of the Board of its role in the disciplinary system.179

VII. THE DUTY TO SUPERVISE: THE ROZAN CATER CASE

The adoption of D.C. Rules of Professional Conduct 5.1, 5.2, and 5.3 reflects the Court's recognition of the ethical obligations of lawyers to make reasonable efforts to ensure that their colleagues and employees adhere to standards of professional conduct. Rule 5.1 sets out the duties of lawyers who have supervisory authority over other lawyers. Rule 5.2 provides that supervised lawyers are bound by ethical rules, but do not violate such rules when acting at the direction of a supervisory lawyer, whose direction is a "reasonable resolution of an arguable question of professional duty."180 Rule 5.3 requires, inter alia, lawyers who have direct supervisory authority over non-lawyer assistants to make reasonable efforts to ensure that the conduct of an employee is compatible with the professional obligations of the lawyer.181 The interpretation of Rule 5.3 is at issue in the current case of In re Cater.182 The Board majority's resolution of the question of law presented by the undisputed facts in this case is testament to an agenda that elevates the interests of law firms as the be-all and end-all of discipline. An informed public would be shocked at the result.

In May 1995, Rozan Cater was appointed by the District of Columbia Superior Court as guardian and conservator of Charlie Mae Morton.183 Ms. Morton was an incapacitated adult who could not manage her financial affairs.184 The court-appointed guardian or conservator is vested with significant power to act on behalf of the incapacitated ward. Applicable statutes and the Court's rules impose certain duties that must be adhered to in order to ensure that this extraordinary authority, particularly with respect to the finances of the ward, is not abused.185 The guardian is responsible for the care, custody, and control of the ward.186 The guardian is required to file periodic reports with the Court that set forth the financial condition of the ward's estate, including expenses incurred by the estate. In sum, the guardian owes to the ward the highest fiduciary duty to act in the ward's best interests, based on the court's determination that the ward is incapable of doing so. The issue in the Cater disciplinary proceeding involves whether the clear disregard of these duties violated the charged ethical rules.

Bar Counsel charged that Ms. Cater had failed to provide competent representation and to adequately supervise a non-lawyer employee in violation of D.C. Rule 5.3(b).187 Ms. Cater also was charged with the same violations in connection with her performance as conservator for Mary Virginia Hinton.188 Although aware of the charges, Cater did not file an answer to the allegations and failed to appear at or participate in the hearing.189 Fortunately for her, her interests were, and presently are, being vigorously defended by the Board.

In discussing the facts found by the hearing committee and adopted by the Board, a point must be emphasized: Cater failed to appear at the hearing despite notice and an opportunity, if not an obligation, to respond to the charges. While Bar Counsel put into evidence her written responses to the allegations, her assertions were never subject to cross-examination. The hearing committee simply had no basis to accept her assertions as credible because no supporting testimony was presented under oath or otherwise. Thus, the findings described below that reflect favorably on Cater's conduct and motivations are, to put it charitably, highly suspect.