A Plea For Transparency

A District of Columbia Hearing Committee has recommended that an attorney be disbarred for misappropriation and other serious misconduct.

However, the committee had some harsh words for the Office of Bar Counsel

Before we address Respondent’s violations of his ethical obligations, we turn to
Respondent’s motion to dismiss based on Bar Counsel’s delay in bringing these charges. First, the delay in bringing this case is significant. The events in question took place eight years before Bar Counsel filed its Specification of Charges. By the time the Board on Professional Responsibility and the Court of Appeals will have an opportunity to act on this case, more than a decade will have passed. Bar Counsel should not wait eight years to bring a Specification of Charges, particularly given the seriousness of the violations; this is simply too long.

The committee notes that the bar complaint was filed in April 2005 and that the last communication in the investigation was in 2007. Nothing happened further until the matter was assigned to a newly-hired assistant bar counsel in 2011.

The case is In re Saint-Louis and can be accessed here.

This lack of diligence by Bar Counsel has become, lamentably, all too common over the past several years.

Equally lamentable is the fact that the Board on Professional Responsibility  (which has its own serious delay problems) and the Court of Appeals seem disinclined to address the issue in any meaningful way.

Recently, the Court of Appeals gently noted Bar Counsel’s concession that it had been “less than diligent” in its handling of the investigation into serious misconduct.

The court accepted a consent to discipline in the case, where Bar Counsel’s investigation had begun in 2003 and was not resolved until 2014. An eight-year investigation in a case that eventually result in a one-year consent suspension, with the court agreeing to treat the delay as a mitigating factor.

Legal Times reported that the conduct occurred in 1999 and that

[Attorney] Saito agreed to the discipline. In an interview, he said that given the amount of time it took the Office of Bar Counsel to prosecute his case, his age (he’s 73) and the difficulties he anticipated in tracking down witnesses so long after the events at issue, he thought it best to reach an agreement.

“It just took too long and took too much of my life,” he said.

The Office of Bar Counsel docketed a complaint against Saito in 2003. Not much happened in the case until 2011, when it was reassigned to a new assistant bar counsel “in an effort to resolve old, pending cases,” according to documents filed in Saito’s disciplinary case.

When a lawyer does little or nothing to advance a case for eight to ten years, we call that neglect and the lawyer/law office where this occurs is subject to bar discipline.

Who investigates and prosecutes such neglect?

The Office of Bar Counsel.

I shudder to think what might have happened to these cases if Phil Fox (the aforementioned new hire) had retired rather than signed up to be an assistant bar counsel.

If it were up to me (and it is not), all components of the D.C. attorney discipline system would be required to report on how long complaints and petitions take to resolve — investigations, dismissals, diversions, informal admonitions and prosecutions.

How expeditious are the hearing committees and the BPR after charges are filed?

Without annual reports (common in many jurisdictions but anathema to D.C.), no one can begin to know.

These statistics would give the public real insight into whether attorney self-regulation works in D.C.

And then, maybe, there would be some long-overdue accountability for a system entrusted with upholding the integrity of the legal profession. (Mike Frisch)