No Obvious Miscarriage of Justice

The District of Columbia Court of Appeals found that there was not an obvious miscarriage of justice in imposing reciprocal discipline based on an attorney’s disbarment in Alabama.

The court concluded that her failure to participate in the proceedings waived her rights and disbarred her.

When neither the respondent nor Bar Counsel opposes identical reciprocal discipline, “the imposition of identical discipline should be close to automatic, with minimum review by both the Board and this court.” In re Childress, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002). At most, the reviewing body should examine “the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result [from] the imposition of identical discipline—a situation that we anticipate would rarely, if ever, present itself.” In re Spann, 711 A.2d 1262, 1265 (D.C. 1998).

Although we have often repeated these words, we have yet to provide much guidance for assessing whether an obvious miscarriage of justice will result. We do so here and conclude that this is not one of those very rare cases where an obvious miscarriage of justice will result from imposing identical reciprocal discipline.

The court rejected the Board on Professional Responsibility’s call for a short suspension

the Board found that disbarment is substantially different from the sanction that would have been imposed had Caffey’s misconduct occurred in the District. It therefore recommends that we impose a ninety-day suspension but require Caffey to demonstrate her fitness to practice law before she may be reinstated. Bar Counsel takes exception to that recommendation, arguing that the Board failed to accord appropriate deference to Alabama’s decision and unnecessarily complicated its review in an uncontested case “by applying the typical exceptions to reciprocal discipline” available to attorneys who contest identical discipline. Although we appreciate the Board’s assistance, we agree that it erred by analyzing this case as if it were a contested proceeding.

Further

The facts of this case readily demonstrate that this is not the “rare” case where such an obvious miscarriage of justice will result. Caffey received notice and was given an opportunity to be heard in the Alabama disciplinary proceeding. The Board does not dispute that if it had occurred in the District of Columbia, Caffey’s behavior would have violated our Rules of Professional Conduct, including Rule 1.1 (b) (duty to serve a client with skill and care); Rule 3.5 (impartiality and decorum of the tribunal); and Rule 8.4 (d) (serious interference with the administration of justice). Caffey’s misconduct has been deemed contemptuous and prejudicial to her client by forcing a mistrial. She was found to have acted dishonestly and with selfish motive…

We do not act unfairly by assigning such significant weight to Caffey’s failure to oppose identical reciprocal discipline. There is no doubt that she had notice of the instant proceedings. She requested, and was granted, additional time to file a brief with the court.9 We recognize that, in some circumstances, physical or other forms of incapacitation may prevent an attorney who has received notice from participating in disciplinary proceedings. But Caffey has never claimed that she was hampered by incapacity.

As I blogged when the board filed its recommendation, I find disbarment based on the Alabama proceeding deeply troubling and quite likely an obvious miscarriage of justice. I think the board got this one right.

The disbarment involved her conduct during a single state court criminal trial.

The Alabama order (which I have been unable to find on line) quotes from the transcript extensively. The attorney may well have crossed the often difficult to discern line from zealousness to argumentative, but no more so than I have frequently seen in hotly-contested criminal and civil trials.

The trial court found the attorney in contempt and declared a mistrial.

After the trial, the attorney made a comment to a television station “that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial.”

The prosecutor filed the bar complaint.

After the Alabama disbarment, the attorney sued a host of defendants including the Alabama Supreme Court.

The suit was dismissed on immunity grounds.

…as a blogger who surfs state court and bar web pages for disciplinary orders, I would rank Alabama as the very worst jurisdiction  in terms of online transparency. Lack of transparency (which is not limited to Alabama) makes me wary of any disciplinary regime. If anyone knows how to find Alabama disciplinary orders on line, please educate me.

District of Columbia Bar Counsel supports disbarment.

As an assistant bar counsel, I argued many times in opposition to a downward departure from identical discipline recommendation by the BPR. My position was premised in the idea that the Board often inappropriately either minimized the misconduct found or second-guessed the disciplining tribunal’s sanction.

Here, the Alabama proceedings just give me pause that I rarely, if ever, have felt in a reciprocal matter.

I predict that the Court of Appeals will not impose such a harsh sanction. 

If you are keeping score, that would be a wrong prediction.

I think the court correctly was concerned by the attorney’s lack of interest in these proceedings.  This may have led here to a subtle miscarriage of justice. (Mike Frisch)