A D.C. Hearing Committee Speaks Truth To Power
An Ad Hoc District of Columbia Hearing Committee correctly decried the sorry state of default procedures in bar discipline matters and, in my view, articulated a truth about a defective process that does nothing but delay proceedings and fails to protect the public from unethical (and absent) attorneys.
The three members of the committee – Chair Matthew Herrington, Public Member Octave Ellis, and Attorney Member Esther Yong McGraw – should all be promoted to the Board on Professional Responsibility.
Soon, as I can’t recall when a committee saw things so clearly.
The casual reader may not understand the courage of these observations
Default proceedings, as their name suggests, occur only where, after substantial notice and outreach procedures have been carried through, a disciplinary action goes forward as to a Bar member who has failed to appear. By our Rule, once default has occurred, the facts alleged by Disciplinary Counsel are admitted. This Rule should afford substantial efficiencies; however, that has not proved the case.
An informal practice has emerged, in the absence of definitive guidance and for the generally laudable reason of erring on the side of more rather than less process, of conducting essentially a full (one-sided) hearing and preparing a Report and Recommendation of the same character as is prepared in contested proceedings. Given the volume of important work before the Board, the Board’s limited staff resources, the Board’s reliance on the volunteer efforts of members of the Bar and the public, and the value of maintaining an orderly and efficient docket, we respectfully suggest that this practice should be revisited.
We do not question here that where the proposed penalty is disbarment a hearing should be held. However, where, as in the case at hand, a hearing allows the Hearing Committee to confirm the findings of fact proposed by Disciplinary Counsel, we see little value in the transformation of Disciplinary Counsel’s submission into a written opinion. Just the same where, as in the case at hand, the conclusions of law proposed by Disciplinary Counsel present no novel issues and reflect nothing more than the application of settled law, we likewise see little value in the transformation of Disciplinary Counsel’s submission into a written opinion. So, given our druthers, we would have resolved this matter several months ago with a one-paragraph Report and Recommendation. The foregoing notwithstanding, we are aware that our suggestions are just that and we have observed that there is great (perhaps appropriate) reluctance to procedural innovation coming from the ground up. Accordingly, we submit herewith a traditional Report and Recommendation. We respectfully seek the guidance of those who review this Report and Recommendation as to whether the above observations are well taken and believe the disciplinary system as a whole would benefit from clarification on this point and a more streamlined process.
There is a long story as to why defaults got so disfavored in D.C.
The Board on Professional Responsibility has had a longstanding hostility to defaults grounded in a preposterously pro-respondent view of due process. This report would have likely been either suppressed or declawed under the last two BPR Executive Attorneys, who were in power over literally the last 40 years.
I applaud the present Executive Attorney for whatever resulted in this speaking of truth to power.
The defaulting attorney was disbarred for misappropriation in In re Edward Matisik. It was docketed for investigation in 2011.
This matter arises out of Respondent Edward N. Matisik’s representation of the American Society for Cell Biology (ASCB), in connection with its annual registration in a number of states where it planned to seek charitable contributions…
Based on the facts as doubly proven – both by admission through default and as found after evidence was taken at the hearing – this Hearing Committee concludes that Respondent acted intentionally in misappropriating funds in violation of our Rules. Had Respondent chosen to participate in these proceedings, perhaps he could have made an argument that his conduct was merely negligent and not intentional. We see no factual basis to support such an argument, and it is not our role to speculate about what facts or arguments might have been made or proved up in an adversarial proceeding.
The BPR should adopt this report in toto and append it to a short approving recommendation. Why do I think that it will not happen? (Mike Frisch)