They’ve Got A Secret

The District of Columbia Court of Appeals entered a rather unusual order suspending an attorney based on an asserted disability.

Upon consideration of the petition of the Board on Professional Responsibility’s (the “Board”) pursuant to D.C. Bar R. XI, § 13(c), to suspend respondent indefinitely based on disability, and the Board’s motion to file under seal, and it appearing that neither respondent nor Disciplinary Counsel has interposed any objection thereto, it is hereby

ORDERED that the Board’s motion to file under seal is granted…

Notably, the court kept the attorney’s identity confidential using only the initials DLR.

I believe that this is the first confidential order of suspension from the court in decades and would welcome a correction if I am in error in that regard.

Rule XI, section 17 (c) provides

All proceedings involving allegations of disability on the part of an attorney shall be kept confidential unless and until the Court enters an order suspending the attorney under section 13 of this rule.

In In re Dunietz, the court emphasized the importance of public disclosure where the Board on Professional Responsibility had proposed a “confidential” censure

The Board, however, has gone an important step further and recommended that the censure be made confidential, conditioned upon respondent’s compliance with the terms of his probation. We cannot accept that recommendation. A private censure would be contrary to the public interest, and it would be inconsistent with our recent amendment to Rule XI, § 17(a). Formerly, the only form of discipline that was required to “be kept confidential” was an informal admonition, which all agree would be an inadequate sanction in this case. Even as to the informal admonition, however, we have since changed the rule on confidentially…The [omitted] italicized language [of the Rule] reflects a judgment by the court in favor of general openness of disciplinary proceedings, and of public disclosure of the sanction imposed, that is quite inconsistent with the private censure recommended by the Board. Protection of the public and promoting confidence in the disciplinary system counsels against confidential discipline except to the limited extent provided in revised section 17(a). 

Seems to me that today’s order may have overlooked that rather significant point. (Mike Frisch)