Overdue Study Of D.C. Bar Discipline Regulatory Failures

Law360 has a recent report on a possible study of the District of Columbia bar discipline system.

If this is actually taking place and is conducted with a modicum of objectivity, it will reveal a longstanding scandal of inefficiency and intermidable delay contrary to the public interest.

This is not a problem of recent vintage.

I conducted a three year study of delay that was published in 2005 in the Georgetown Journal of Legal Ethics.  Michael S. Frisch, No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia, 18 Geo. J. Legal Ethics 325-363 (2005).  [HEIN] [W] [L]

And delay is not the only issue worthy of examination.

From Law360

Law360 Pulse has learned that the local Washington, D.C., court system is in talks with the American Bar Association about a study to examine its attorney disciplinary process, which has been marked by lengthy delays.

A court spokesperson confirmed to Law360 Pulse this week that officials “are in active discussions with the ABA” about looking at possible changes to the disciplinary system after reaching out to the organization earlier this year. The courts have not reached an agreement with the ABA, the spokesperson said.

The ABA’s Standing Committee on Professional Regulation conducts reviews of disciplinary systems at the request of courts. The committee works confidentially on such studies, and when asked for information about D.C., the ABA referred Law360 Pulse to the courts.

In a May report, Law360 Pulse highlighted delays in the D.C. attorney discipline system. Cases against Washington lawyers accused of misconduct can take years to be adjudicated. One case examined by Law360 Pulse took 15 years to be resolved.

The D.C. Court of Appeals has authority over the discipline of lawyers in the nation’s capital. The court’s disciplinary arm is the Board on Professional Responsibility, which administers the system.

The court’s move to review the disciplinary system was revealed at a recent prehearing conference for former U.S. Department of Justice official Jeffrey Clark, whom the D.C. Office of Disciplinary Counsel charged in July 2022 with professional misconduct for his role in former President Donald Trump’s efforts to overturn the 2020 election results.

The conference dealt with Clark’s request to defer his disciplinary matter pending the outcome of his criminal case in Georgia. Disciplinary Counsel Hamilton P. “Phil” Fox III argued against deferring Clark’s case. Fox said the D.C. process is already “extraordinarily slow” and mentioned that the court wanted to study it.

“I am continually frustrated by it,” Fox said at that proceeding. “And indeed, I think the court is frustrated by it and … has commissioned an ABA study to look at our system to see whether there’s ways of speeding it up. And the reason it’s frustrating is that unethical lawyers continue to practice law for years while their cases are being resolved.”

Attorneys for Clark said at the conference that Clark and others facing ethics charges are innocent until proven guilty. Harry W. MacDougald of Caldwell Carlson Elliott & DeLoach said that Fox’s assertion that the public is harmed by delays “is not a valid argument, because it presumes the guilt of the lawyer on the ethical charge before it’s been determined.”

Replying to MacDougald, hearing committee Chairman Merril Hirsh said the goals of attorney discipline include deterring misconduct and protecting the public’s “right to have faith in the integrity of the legal process.”

“If we have a process [in which] cases routinely get delayed for a decade, it defeats both of those purposes, doesn’t it?” Hirsh said.

Hirsh on Oct. 25 issued a report and recommendation to deny Clark’s request for a deferral, and Clark’s ethics proceeding is tentatively scheduled for January.

The District of Columbia Bar conducted a “study” in 2006 (linked here) that was populated by insiders heavily invested in the status quo.

The only thing of any value that came out of it was a consent disposition process that only became useful after the Court of Appeals substantially modified the proposed process.

They also succeeded in steamlining the process to reinstate disbarred and suspended with fitness lawyers, which eventually benefitted convicted felons like Scooter Libby and David Safavian.

Priorities. (Mike Frisch)