Tinkering With A Broken Process

The District of Columbia Board on Professional Responsibility has amended its rules governing negotiated dispositions.

As there is near unanimous agreement amongst interested observers ( i.e. me) that the consent discipline process has been an abject and lamentable failure in a system characterized by a glacial pace of proceedings, I wonder whether the intent of the additional language to the pertinent board rules is  to help or hinder the process. 

I think I know the answer.

The BPR intends that there be more hoops to jump through and reasons to burden and discourage the process. As it was, so shall it be.

New language in Board Rule 17.3 in italics

The petition for negotiated discipline shall be prepared by Disciplinary Counsel and signed by Disciplinary Counsel, respondent and, if applicable, respondent’s counsel. It shall contain: (i) a statement of the nature of the matter that was brought to Disciplinary Counsel’s attention; (ii) a stipulation of facts and charges, including citation to the Rules of Professional Conduct that respondent has violated; (iii) a statement of any promises or inducements that have been made by Disciplinary Counsel to respondent, including, but not limited to, any agreement not to pursue specific charges or investigations of possible misconduct, whether in the present proceedings or in future proceedings, including an agreement not to present evidence of unadjudicated acts of misconduct under Board Rule 9.8(a) if the respondent seeks reinstatement; (iv) an agreed upon sanction, with an explanation of the basis for the proposed sanction, a statement of relevant precedent and any circumstances in aggravation or mitigation of sanction that the parties agree should be considered and any other factors that are relevant to whether the proposed sanction is justified

The most significant portions of the new Board Rule  17.5 are also in italics

(iii) the agreed upon sanction is justified, and not unduly lenient, taking into consideration the record as a whole, including the nature of the misconduct, any charges or investigations that Disciplinary Counsel has agreed not to pursue, the strengths or weaknesses of Disciplinary Counsel’s evidence, any circumstances in aggravation and mitigation (including respondent’s cooperation with Disciplinary Counsel and acceptance of responsibility), and relevant precedent. A justified sanction does not have to comply with the sanction appropriate under the comparability standard set forth in D.C. Bar R. XI, § 9(h).

I have long said that in order for consent discipline to work, you have to trust your disciplinary counsel to exercise discretion in a responsible manner.

Lack of mutual trust and respect between the players in D.C. has led to most unfortunate consequences where use of negotiated discipline is concerned.  (Mike Frisch)