Making Bar Counsel’s Job Harder

The District of Board on Professional Responsibility has recommended that an attorney who had misappropriated entrusted funds and failed to participate in the disciplinary proceedings be disbarred.

Nothing remarkable about that result but my attention was drawn to the following footnote

We note that Bar Counsel charged Respondent with violating Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation) in both the Mills and Anderson Matters. The Court has held that each of the four terms encompassed by Rule 8.4(c) “should be understood as separate categories, denoting differences in meaning or degree.” Each category of misconduct under Rule 8.4(c) thus requires different elements of proof. See In re Romansky, 825 A.2d 311, 315 (D.C. 2003). Notwithstanding the clear holding of Shorter, Bar Counsel declined to identify the element or elements of Rule 8.4(c) on which it relied to establish a violation, when the Hearing Committee invited it to do so at the conclusion of the hearing. Tr. 263-64. In its post-hearing brief, Bar Counsel explained that “classifying which type of dishonesty occurred [] would not change the fact that Respondent violated Rule 8.4(c), or affect the appropriate sanction,” because Respondent had committed each of the four types of misconduct “[a]t some point.” See Bar Counsel’s Post-Hearing Brief at 46 (emphasis in original). Yet, Bar Counsel still failed to specify the facts that supported each of the elements of Rule 8.4(c). As a result, the Hearing Committee was left to sift through the evidence on its own, concluding that Bar Counsel proved that Respondent committed dishonesty, deceit and misrepresentation, but not fraud, in the Anderson Matter, and that Respondent committee all four types of misconduct in the Mills Matter. See H.C. Rpt. at 39-43; 59-62. Bar Counsel’s reluctance at the outset to specify the elements underlying the Rule 8.4(c) charges, and its eventual failure to identify the facts underlying each element of a violation in its brief, raises potential due process concerns for respondents, although we find none here; Respondent made no attempt to participate in this disciplinary proceeding and should be disbarred under Addams in any event, regardless of any violation of Rule 8.4(c). At the least, Bar Counsel’s failure to clarify its theory of prosecution created a burden for the Hearing Committee, which diligently matched the facts to the Rule 8.4(c) elements.

Pardon my broken record, but this is nonsense.

These are not criminal proceedings. If it was a criminal proceeding, crimes can be charged in the alternative and are subject to lesser-included offense provisions. 

As the Court of Appeals explained years ago in rejecting a board order of dismissal on speedy trial grounds

A disciplinary sanction differs from a criminal conviction. Although both protect the public, they do so in different ways. Most importantly, an attorney is in a continuing position of trust toward clients, the courts, and society in general. A member of the bar has accepted the onerous responsibility of participating in the administration of justice. We grant the license to practice law as a privilege, not as a right, and we do so only on the strict condition that the attorney aspire to the highest standards of ethical conduct. 

Simply out, the board wants to enforce a procedure that forces Bar Counsel to do something unheard of in disciplinary law – elect the subsection of a rule that clearly describes gradations of the same type of misconduct.

If the attorney violates the rule in any respect, sanction follows. That is what the Shorter case holds.

And if Bar Counsel gets it wrong (something the board treats as the rule, not the exception), does the lawyer go free because the misconduct involved dishonesty but not misrepresentation?

Poppycock!

Romansky (which I handled for several of the many years it took to decide) and Shorter do not remotely stand for this pleading proposition.

The only thing driving this assault on commonsense is a desire to make Bar Counsel’s job harder and create rights for lawyers that no one else has in any adjudicatory forum. These proceedings exist to protect the public and the integrity of the profession.

Creating procedures to make enforcement a hide-the-ball game is directly contrary to the reason the board is supposed to exist.

As the Connecticut Supreme Court aptly held

In attorney disciplinary proceedings, two interests are of paramount importance. On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct. On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood.

This is just the kind of “procedural requirement” that Connecticut justly condemned. 

Because neither the attorney or Bar Counsel will likely appeal the recommendation, going forward the board will cite this footnote as authority for requiring Bar Counsel to engage in all sorts of “elections” in dishonesty, conflicts and misappropriation cases.

 The case is In re Jerome Clair. (Mike Frisch)