Murdter They Argued

I attended a very interesting argument in the District of Columbia Court of Appeals this morning in the disciplinary case of In re Charles P. Murdter.

The case was unusual in that Disciplinary (no longer Bar) Counsel argued that the Board on Professional Responsibility’s proposed 60-day suspension was unduly harsh for an attorney who had seriously neglected five appointed criminal appeals and was twice held in contempt for failing to respond to court orders.

Disciplinary Counsel so passionately pleaded for leniency that, when counsel for the Respondent rose for rebuttal, he was immediately asked by Senior Judge Farrell whether there was anything to rebut.

Cue the laughter.

Only twice in my 17 plus years at Bar (now Disciplinary) Counsel did I argue that the BPR’s sanction recommendation was too severe – one instance involved the inappropriate influence of national politics (In re Elliott AbramsIn re Thajuana Miller).

On the other hand, I argued a boatload of cases (see here, here,  here, here, here and here, for example) where I took the position that the BPR was too lenient and forgiving.

The BPR’s sanction recommendations are presumptively correct. I heard little in the arguments to persuade me that such presumption was overcome given the nature and extent of this misconduct.

Perhaps Disciplinary (nee Bar) Counsel should choose more carefully in taking exception to what it perceives as an unduly harsh proposed sanction.

The BPR report can be accessed at this link.

Update: Professor Bernabe poses a question that I will try to answer.

The argument was that there are a number of similar cases in the pipeline and they want to encourage cooperation in those cases. Deputy Bar (oops Disciplinary) Counsel also insisted that there was virtually no chance of future misconduct and that conclusion should weigh heavily on sanction.

A final note: These five matters were sent to the Office of Bar Counsel by the Court of Appeals in 2010. Charges were served in October 2013. The Hearing Committee filed its report on September 29, 2014.

While I strongly suspect that a healthy chunk of this time was devoted to a failed effort to achieve a consent agreement, the case took over five years to get back to the Court of Appeals.

Does anyone care about a dysfunctional system that takes half a decade or more to resolve a straightforward and conceded case of multiple instances of client neglect and contempt of the Court itself?

I fear that I know the answer.  (Mike Frisch)