D.C. Board Says Attorney On Probation Need Not Tell Clients

With uncharacteristic dispatch, the District of Columbia Board on Professional Responsibility adopted a hearing committee recommendation for a 90-day suspension stayed in favor of supervised probation for two years.

The recommendations in In re John L. Machado can be found here. 

The good news: the board acted in less than 60 days from its receipt of the committee report. 

The bad news? 

The last line of the board report

The Board further recommends that Respondent not be required to notify his clients of his probation. See D.C. Bar R. XI, § 3(a)(7).

The cited rule does not require such a result

 Probation may be imposed in lieu of or in addition to any other disciplinary sanction. Any conditions of probation shall be stated in writing in the order imposing probation. The order shall also state whether, and to what extent, the attorney shall be required to notify clients of the probation. The Board by rule shall establish procedures for the supervision of probation. Violation of any condition of probation shall make the attorney subject to revocation of probation and the imposition of any other disciplinary sanction listed in this subsection, but only to the extent stated in the order imposing probation.

The board does not favor us with its analysis of why it views the non-disclosure to clients of probation as in the public interest.

It sure is in the offending attorney’s best interests. 

Way back in the dawn of time, the board proposed a confidential censure and probation and the court was unimpressed

The Board…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 [sic] 

We at Bar Counsel dubbed the Dunietz case the Double Secret Probation recommendation. 

 That was back in the mid 1990s. Same stuff, different day. (Mike Frisch)