Unconscionable Part II

A recent post took the District of Columbia Board on Professional Responsibility to task for responding to a court referral for a reciprocal discipline recommendation by reducing a California disbarment to a career-saving informal admonition.

A bit of history is worth discussing in that regard.

When I was at Bar (now Disciplinary) Counsel, the court rules provided that every reciprocal case be referred to the board for a recommendation. A significant amount of my time was devoted to staking out Bar Counsel’s position in such matters.

I venture to say that the District of Columbia is the leader in having members admitted elsewhere. Reciprocal discipline was and remains brisk business. 

When the National Lawyer Regulatory Data Bank was created, we discovered literally hundreds of unreported matters involving D.C.- admitted attorneys. It took me several years to triage the cases. 

For some reason, I remember the last of the triaged cases, one involving reciprocal probation from California. It was among the last cases I argued prior to my departure.

The board had a habit of second-guessing the disciplining court’s actions, re-litigating the case to find favorably (or, far more rarely, unfavorably) toward the attorney and proposing a significantly reduced sanction that offered the public less protection than that accorded by the disciplining court. 

A sampling of cases where the court rejected the board recommendation and imposed identical discipline may be found here (two consolidated but otherwise unrelated cases) and here.   

Perhaps the most significant D.C. discipline case that one one has ever heard of is In re Arthur J. Reid, decided in 1988. The case came to D.C. right after the court had ruled on the impact of recovery from alcoholism on sanction. 

The court ruled that the board could propose a sanction increase or reduction without conducting a de novo hearing. 

I discuss the then-problem of reciprocal discipline at length (some might say ad nauseum) in No Stone Left Unturned.

In In re Spann, the court noted

We add a few words about the procedures followed here, which, in our judgment, unnecessarily complicated a simple reciprocal matter. Despite the absence of an objection to the proposed discipline, the Board engaged in the near-equivalent of a de novo review of the Florida proceeding, not unlike the review it would conduct on a hearing committee’s recommendation in an original discipline proceeding, but without the participation of counsel and the advantage of access to exhibits, transcripts, and other records.

It should be remembered that the attorney in the usual reciprocal discipline case has already had an opportunity for a full hearing in the originating jurisdiction. That certainly was true for this Respondent. More significantly, there is a strong presumption this jurisdiction will impose discipline identical to that imposed by another. The rule itself states that “reciprocal discipline shall be imposed unless the attorney demonstrates by clear and convincing evidence” that one of the five exceptions applies. Here, Respondent did not object to the imposition of identical reciprocal discipline — indeed, he took no part in the proceedings.

Given this posture, we think the role of the Board should be a limited one. The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline — a situation that we anticipate would rarely, if ever, present itself. Cf. In re Goldsborough, 654 A.2d 1285, 1288 (D.C. 1995) (court’s deference to Board recommendation becomes even greater when unopposed by attorney). We recognize that the Board’s review of the instant case was likely prompted by our observation in Gardner, supra, 650 A.2d at 696, that it is “appropriate” for the Board to consider whether any of the exceptions apply. But such an “appropriate” review in an uncontested case need not exceed that which we have described above.

In the California matter, it appears that the board found an exception (“substantially different” discipline) that the attorney did not argue. Spann strongly counsels against that approach.

After years of wasting limited time and resources on these reciprocal matters, the Court of Appeals amended Rule XI to essentially stop referring such matters to the board when the attorney did not promptly respond to a show cause order. 

The rule change had a most positive effect in treating the vast majority of reciprocal matters in the summary fashion that should attend reciprocal matters. It should have allowed Disciplinary Counsel and the board to focus on other matters more efficiently and expeditiously. 

That it did not is another story we frequently tell in evaluating systemic inefficiency and delay in the D.C. system.

If the court needed a reminder as to why it largely and wisely removed the board from the reciprocal discipline process, this California case should suffice as a reminder. (Mike Frisch)