Shining A Spotlight On Systemic Dysfunction

Excerpts from a  recent article from Law360 (subscription required)

DC Ethics Case Delays Threaten Bar And Public, Experts Say

By Alison Knezevich Law360 (May 18, 2023, 4:35 PM EDT) —

After victims of an investment fraud complained about the Washington, D.C., attorney they hired to help recover their money, the district’s disciplinary counsel filed professional ethics charges against the lawyer in 2016. Seven years later, the case is still open.

A disciplinary hearing committee in 2018 and then the D.C. Board on Professional Responsibility in 2019 recommended the lawyer, William E. Wallace, be suspended. But the D.C. Court of Appeals, which makes final decisions on attorney discipline in the nation’s capital, has still not ruled after hearing the case in 2020.

It’s a longtime issue in one of the country’s largest bar associations: Complaints against Washington attorneys accused of professional misconduct can take years to resolve.

“It promotes disrespect for the process from soup to nuts,” Georgetown University Law Center ethics counsel and former senior assistant D.C. bar counsel Michael Frisch said of delays in the system. “And I think it fuels a public perception that lawyer discipline is too lawyer-friendly and too lenient.”

Lawyer disciplinary system structures vary across the United States. In many jurisdictions, delays are not unusual, especially in complex cases, experts say.

But professional responsibility attorneys who work in D.C. and the neighboring jurisdictions of Virginia and Maryland told Law360 Pulse that cases take significantly longer in Washington. The D.C. disciplinary system does not publish statistics on how long cases take.

There is no nationwide standard for how long it should take to resolve professional ethics cases against attorneys. In commentary to its model rules for lawyer disciplinary enforcement, however, the American Bar Association has advised that the process shouldn’t last more than 18 months for routine matters and 24 months for complicated ones.

In stark contrast, a recently decided case against Evan J. Krame, an attorney specializing in administering special needs trusts, stretched on for 15 years from the time a complaint was filed until the D.C. Court of Appeals issued a ruling this past fall.

“The process took so long that the bookkeeper upon whom I relied for skilled preparation of invoices and accountings died in 2014,” Krame said in an email to Law360 Pulse, adding that the attorney who represented him from 2011 to 2019 had also died. “These deaths are indicative of the prejudice caused by the extreme delay in this case.”

The disciplinary case largely focused on Krame’s efforts to continue to be paid based on a percentage of trust assets, which was once fairly standard, rather than on an hourly basis as directed by judges.

Now-retired D.C. Superior Court Judge Peter H. Wolf told Law360 Pulse he filed a bar complaint against Krame in 2007, saying he was obligated to do so under judicial ethics canons. After years of investigation, disciplinary counsel filed charges against Krame in 2016.

This past November, the court found Krame violated ethics rules by misleading the court, recklessly submitting altered time entries and engaging in negligent misappropriation.

While Judge Wolf told Law360 Pulse that he understands complex cases take time, he said the delays put the public at risk because they can allow attorneys who may have engaged in misconduct to continue practicing law as their cases drag out.

“The public is not being protected while these cases are pending,” he said.

While Krame’s case is an outlier, it is not unusual for D.C. cases to take several years to be adjudicated, with lengthy gaps between decisions from hearing committees, the D.C. Board on Professional Responsibility and the court.

Both the D.C. Court of Appeals, which is ultimately responsible for regulating attorneys in Washington, and the D.C. Board on Professional Responsibility, the disciplinary arm of the court, declined to comment for this story.

‘A Very Cumbersome’ System

The system in D.C. dates back to the early 1970s, when it was borne out of the District of Columbia Court Reorganization Act, which created the D.C. Court of Appeals. The court appoints the members of the professional responsibility board.

Today, the D.C. court regulates roughly 87,000 active lawyers. They include some of the country’s most powerful and elite lawyers.

There is no statute of limitations for prosecuting a D.C. ethics case. The Office of Disciplinary Counsel, which investigates and prosecutes disciplinary cases, receives an average of about 1,000 complaints per year, according to statistics the office provided to Law360 Pulse. The office first must determine whether, if true, the complaint would constitute a violation of professional rules. Most complaints are dismissed.

For complaints that do proceed to be docketed for investigation, the office strives to decide whether to charge the attorney within 90 days, said disciplinary counsel Hamilton P. Fox III, who has been the district’s top bar prosecutor since 2017. In recent years, the office has worked to cut down on the number of cases taking longer than that.

“We’re not yet … where I think we should be,” Fox told Law360 Pulse.

Before contested cases get to the appeals court for final disposition, they are heard by both a three-member ad hoc hearing committee and then the nine- member Board on Professional Responsibility. All members are volunteers.

It’s “a very cumbersome three-level system,” with the process also involving rounds of post-hearing briefings and preparation of transcripts, Fox said. In one case, a hearing committee’s report was issued five years after the hearing.

Attorney Gregory L. Lattimer, whom the D.C. Court of Appeals ultimately suspended in 2020 and ordered to repay a client $4,500, first faced professional ethics charges in the matter in 2011.

After a hearing in 2012, it wasn’t until 2017 that a committee report was issued. Meanwhile, disciplinary counsel filed more ethics charges against Lattimer in 2015. Lattimer could not be reached for comment.

Georgetown University’s Frisch has long argued the D.C. system protects the interests of powerful law firms in the nation’s capital. In a paper published 18 years ago in the Georgetown Journal of Legal Ethics, he wrote: “Routine cases drag on for years with little indication that interminable delay is in any manner frowned upon.”

“You have an establishment in D.C. that likes the way things are now — which is slow and very hard to prosecute prominent lawyers,” Frisch told Law360 Pulse.

Fox and Frisch both said the situation warrants a look from the American Bar Association, which conducts in-depth reviews of attorney discipline systems at the request of courts as part of a consultation program.

A spokesperson for the D.C. courts declined to say whether the Court of Appeals has ever asked the ABA to review its system.

The disciplinary system’s work is funded by bar dues. Fox said he has no complaints about the resources given to his office, which has about 40 staff members and a roughly $9 million budget for the upcoming fiscal year, but believes the process itself needs to be reexamined.

“I think the biggest problem is this system was created 50 years ago,” he said. “There have been tweaks to the system from time to time, but I think we’ve simply outgrown it.”

Many factors contribute to delays, according to attorneys who spoke to Law360 Pulse.

Before disciplinary counsel can file charges or dismiss a docketed complaint, the action must be approved by a lawyer member of a hearing committee, called a “contact member.”

Washington, D.C., also uses negotiated discipline — akin to a plea deal — less frequently than in neighboring jurisdictions.

And while board rules call for the hearing committees to issue reports within 120 days of completing a hearing, there is no enforcement mechanism, and it doesn’t always happen.

The hearing committee and board members, who write lengthy reports, are unpaid volunteers with busy professional schedules, which can make scheduling hard to juggle.

Longtime issues with D.C. judicial vacancies also “can’t help,” Fox said.

“The judges in this court are very good judges,” he said. “They are completely prepared and they write excellent opinions. But it takes a long time.”

…Frisch, the Georgetown ethics counsel, says the system is failing to fulfill its responsibilities.

“It’s not fair to anybody,” Frisch said. “But most of all, it’s not fair to the public.”

One disagreement – Krame is not an outlier. Rather, it’s par for the course.

Also, the article focuses on the Court of Appeals and there is plenty of blame that should go to the other component parts of the system. 

Further, after forty years of close observation, I am confident that nothing will change or improve the process in my lifetime.

A note of irony.

The case that held that delay was no problem was mine — In re Dudley Williams.  (Mike Frisch)