The Final Say

Last Thursday was a great day to be a member of the District of Columbia Bar. The D. C. Court of Appeals, in an opinion authored by Senior Judge Schwelb and joined by Associate Judges Ruiz and Blackburne-Rigsby, decided a case in a manner that is informed by something often lacking in the court’s disciplinary board: common sense. The case involved a lawyer with a record of prior discipline who had engaged in misconduct in the representation (or lack thereof) of five clients in immigration matters.

The court found that the board had erred in rejecting charges of dishonesty where the attorney or his unlicensed assistant had sent a false letter to the INS verifying the client’s employment: “Rule 8.4(c) is not to be accorded a hyper-technical or unduly restrictive construction.” Further, in considering whether the attorney’s conduct involved intentional failure to seek the client’s lawful objectives, the court rejected the board’s approach to consider intent in each case in isolation from the other four cases. Rather, each of the cases were part of a mosaic that required a finding that the misconduct was intentional as to all five clients. Because the board had conceded that its one year suspension with fitness recommendation was inadequate, the court suspended the lawyer for two years with fitness as proposed by the board’s counsel at oral argument.

Cases like these show why it is necessary for judges, rather than volunteer lawyers, to have the final say in bar discipline matters. The point is underscored by the board’s report, which is appended to the opinion. In recent years, the hallmark of this board has been a hyper-technical approach to everything, which usually (but not always) seems to work in the accused lawyer’s favor. (Mike Frisch)