Horse Races And Dissenting Opinions

I was saddened to learn of the passing of Judge Stanley Harris, who I was privileged to know slightly although (to my recollection) I never appeared before him as a judge.

My story involves a long night of  teaching a CLE class in the huge ceremonial courtroom on the sixth floor of the District of Columbia federal court building. 

The numerous speakers had whittled down to the last two – Judge Harris and then me. The 500 or so attendees were getting restless but no one wanted to walk out on the judge.

When Judge Harris finished, the room began to empty.

I (having learned this trick in a trial against AUSA and later Deputy Attorney General George Terwilliger) waited until every single person who wished to do so had left and I began my talk to the hundred or so who had remained

I’m from the Office of Bar Counsel [long pause] I got the names of everybody who just left.

Maybe the biggest laugh I ever got as a public speaker.

The next day, he called me to chat. I’ll never forget that when he called, he started with

Mike, this is Stan.

The only person I knew as Stan was my college roommate. 

As to his role in D.C. bar discipline, I often cite to his prescient dissent in the seminal case of In re Charles Colson.

Judge Harris decried the delegation of authority to  the Board on Professional Responsibility

I feel strongly and I believe my view is shared by the great majority of persons who are knowledgeable in the field of professional discipline that the basic decisional responsibility for the sanction to be imposed in a disciplinary proceeding should rest upon the judges of a jurisdiction’s highest court, rather than upon the members of a court-created disciplinary body. After all, our Board on Professional Responsibility is not akin to an administrative agency which is presumed to have an expertise which we lack; we should be quite as capable in this area as our appointed Board members, and we should be free of even the hint of potential peer pressures which might make a particular respondent feel that he or she can receive impartial consideration only from judicial officers.

Nonetheless, the majority of my colleagues effectively concluded to the contrary. For reasons which remain inexplicable to me, this court, in adopting the above-quoted provision, has conferred what amounts to a quasi-agency status upon the Board which we have created and whose members we appoint.

While I disagree with the adoption of such a provision, I recognize that differences of opinion make, among other things, horse races and dissenting opinions. However, this case came along soon thereafter, and the majority promptly found itself confronted by its new creation.

To me this is gospel and accurately identifies the original sin in D.C. bar discipline.

Of course, one cannot acknowledge the passing of Judge Harris without noting his connection to championship baseball in the District of Columbia.

I am glad he lived to see the second World Series title after his father played for and managed the 1924 champs. (Mike Frisch)