Election Time In D.C.

I recently commented on a footnote in a District of Columbia Board on Professional Responsibility report suggesting that Bar Counsel must elect in its charges the subsection of Rule 8.4(c) that it alleges was violated.

The title of the post is “Making Bar Counsel’s Job Harder.”

As we all know, the rule broadly prohibits an attorney from “conduct involving dishonesty, fraud, deceit or misrepresentation.” 

The board cited the case of In re Shorter, 570 A2d. 760 (1990) as support.

I suggested that Shorter did not remotely stand as precedent for the board’s “election” directive.

As I teach the Shorter case, I re-read it this  morning to prepare for class.

Here’s the operative language

We agree with the Hearing Committee and the Board that these four terms should be understood as four separate categories, denoting differences in meaning or degree. Thus, to the extent possible, each term should be read narrowly, so as  to not engulf any of the remaining three. Moreover, if any term proves more general than the others, or encompasses another, only the more general term need be applied: we will find only one violation of the disciplinary rule upon a single set of facts.

 No mandate there for mindless proceduralism. Seems pretty clear to me that Bar Counsel may and should charge the rule violation in the alternative. (Mike Frisch)