Plea Bargaining In Bar Discipline

A recent consent disposition approved by the Arizona Presiding Disciplinary Judge demonstrates the value of plea bargaining in bar discipline matters.

The case involved a wide array of charges and complainants. The State Bar and the attorney agreed to resolve the plethora of cases with a one-year suspension and reinstatement conditioned on proof of present fitness to practice law.

The attorney is required to make restitution to nine clients and arbitrate with 23 others.

Judge O’Neil eloquently explained why the disposition serves the interests of both the public and the attorney

In the 114 page consent agreement, thirty five separate counts outline a consistent pattern of misconduct. Mr. Bornmann admits he, or those under his supervision within his office, consistently failed to attend scheduled court hearings, failed to adhere to court orders, failed to respond to his clients, failed to do the work he was contracted to do, which often caused his clients injury, misled his clients, failed to include ER 1.5(d)(3) language in his fee agreements, failed to issue promised refunds to clients, failed to respond to the requests of substitute attorneys for information and frequently blamed others whom he supervised for these shortcomings.

The admissions here are conditioned on the acceptance of this agreement by this judge. Agreements resolve the controversy existent in each discipline matter. If true, the counts here call for a presumptive multi-year, lengthy period of suspension, if not disbarment. Left unsaid, but inherent in any such agreement, is Mr. Bornmann may well have defenses to one or all of the counts. The State Bar must prove its case in each count by clear and convincing evidence. There may be issues regarding the evidence available to the State Bar. There may be credibility issues or unavailability of witnesses. An agreement balances multiple opposing concerns, as this agreement has, by reducing the suspension while resolving all counts. Mr. Bornmann’s failure to respond to the State Bar’s screening investigation letters or furnish to the State Bar a copy of his client files, if any existed, would likely be a significant aggravating factor for a hearing panel. That issue is also resolved by the Agreement.

All trials are uncertain. Hearing panels issue rulings based on the evidence brought before them, not what one believes or even hopes may be presented. A hearing panel could issue a significantly longer suspension. A hearing panel could dismiss one or more or all of the counts. Regardless, the one year suspension is not insignificant and resolves all charges. The agreement for one year suspension is not unreasonable.

So, we have certainty and a prompt resolution as a result. The fitness requirement and the other provisions to satisfy obligations to injured clients serve to protect the public interest. Bar Counsel can apply the saved resources to cases that need to be tried.

A win-win all around.

It is possible that plea bargaining can be abused as a disciplinary tool.

In my view, Virginia is a good example of the overuse of consent dispositions.

There the system is run by lawyers with a hands-off attitude by the Commonwealth’s high court and that system is seriously underfunded. As a result, Bar Counsel often agrees to a public reprimand where (in my cursory review) it appears that a suspension may well have been appropriate.

I’m surprised that there has not been a greater outcry for reform of the Virginia disciplinary system.

Of course, for plea bargaining to work, you have to have adjudicators who (1) care about efficiency and (2) trust the Bar Counsel, with appropriate review, to do the right thing.

I guess that it why consent dispositions have fared so poorly in the District of Columbia.

My view: If your adjudicators don’t care about efficiency, find some that do. If you don’t trust your Bar Counsel, replace that person with someone you do trust. Then, give that person at least some authority to pursue consent dispositions that recognize the uncertainty of litigation and the value of prompt resolution of contested charges.

Just a thought. Not a sermon. (Mike Frisch)