“Fitness Requirement” Doesn’t Always Fit

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Lawyers sometimes make mistakes. They may violate rules of professional conduct. Does public protection always require the imposition of the heaviest sanctions – those that require showings of fitness to return to practice? The Legal Profession Blog recently asserted as much, but the case discussed doesn’t support such a hard-line approach.

LPB describes the District of Columbia Board on Professional Responsibility as a “protector of accused attorneys rather than the public” based on the Board’s recent recommendation in In re Green, 11 BD 087 (available by searching for “John Green” on the D.C. Bar’s website).The Board recommended a 90-day suspension, with the final 30 days of the suspension stayed by a one-year period of probation, for a lawyer who had neglected a client’s personal injury matter, resulting in the client’s claims becoming time-barred. The Board rejected the request of counsel for the D.C. Bar that the lawyer be required to prove his fitness to resume practicing at the conclusion of the suspension, i.e., that the suspension continue until the lawyer could clearly and convincingly prove that he was fit to practice.

In Illinois, ordinary disciplinary suspensions extend for a finite period of time, and the suspended lawyer is not required to demonstrate fitness to return, or otherwise to take action to be reinstated (other than to register and meet MCLE requirements). In more serious cases, or cases involving lawyers who are experiencing unresolved or untreated impairments, the Illinois Supreme Court has imposed a “suspension until further order of court.” Lawyers subject to such suspensions are required to file petitions to be reinstated to the practice of law pursuant to Supreme Court Rule 767 and ARDC Rules 400 et seq., and are required to prove their fitness according to several factors set forth in the applicable rules. Full evidentiary hearings are often held on those petitions. The procedure in Washington, D.C. by which suspended lawyers can demonstrate their fitness to return may differ from Illinois reinstatement proceedings; the particular similarities and differences are beyond the scope of this article.

In any event, the sanction sought by Bar Counsel in Green, and championed by LPB, was harsh, particularly where only one client matter was involved. But Green is no ordinary offender, LPB protests: he had been previously reprimanded for similar conduct in Maryland. Surely as a recidivist, Green needs further punishment. He’s harmed before, and again, and will in the future unless shut down indefinitely. Not only that, he was inconsistent in providing information to Bar Counsel in its investigation. Is dilatory cooperation in disciplinary proceedings not an aggravating factor requiring a harsher sanction? LPB criticizes the Board, and anyone who would agree with its more lenient recommendation (including the D.C. Court of Appeals, which, LPB asserts, “hates to hurt the feelings of the volunteer lawyers on the board”) for failing to balance the equities here properly.

But the Board’s opinion reveals additional important facts about Green’s case:

Green admitted his misconduct. The Board’s opinion does not describe specifically the ways in which Green’s participation in the matter was “inconsistent.” The Report and Recommendation of the Hearing Committee (also available on the D.C. Bar site) does, though, and it amounts to Green’s failure to file an answer to the disciplinary charges, and his failure to appear at a pre-hearing conference. Failure to answer resulted in the curtailing of Green’s right to contest the allegations against him; it was, in effect, a form of admission. Green also appeared for his disciplinary hearing, and there he “entered into stipulations of fact and violations,” i.e., he admitted not only what happened, but that his conduct violated the applicable Rules.

That is a substantially cooperative posture, as the Board recognized. It narrows the focus of the proceeding, and it represents a willingness to take responsibility for the misconduct. That Green later failed to appear before the Board for oral argument may be less important than LPB makes it out to be. It was not his appeal, but Bar Counsel’s. Green’s failure to show up could have harmed no one but himself (if, for example, the Board chose to adopt Bar Counsel’s recommendation without hearing from Green), as the Board tacitly acknowledged.

Information about the prior misconduct is lacking. The Maryland reprimand Green previously received was in the form of a November 30, 2010 letter. It refers to conduct Green (again admittedly) engaged in during his representation of a debtor in a bankruptcy case. He had been asked to help a friend of an attorney with whom he shared space by filing the bankruptcy, with a view to halting a foreclosure sale. He achieved that goal. But Green filed the petition without catching or correcting several errors; did not adequately communicate with the client; and did not clearly articulate the basis of his fee. Green’s failures came in the rushed context of trying to file a case under a tight deadline.

As the Board points out in Green’s second case, the reprimand letter does not say when this all happened relative to the more recent case. That makes it harder to give heavier weight to the reprimand as an aggravating factor. A lawyer who transgresses twice in rapid succession presents a different disciplinary problem than one who transgresses twice in 15 years.

Green was found to be credible. The Hearing Committee before whom Green made his admissions of misconduct found that Green was credible, “not over-reach[ing] with respect to his memory of events that occurred approximately five years ago, conceding when necessary that he simply does not remember. Respondent appeared to be very sincere.” Hrg.Cmte.Rpt. at 12. That is not a finding at which anyone should scoff. Not all lawyers are found to appear credible even as they admit misconduct; positive credibility findings are therefore significant.

Green’s sanction was found to be supported by precedent. LPB frames the discussion as though the Hearing Committee and the Board just wanted to give Green a break baselessly. But they both cited D.C. case law that supported imposing just exactly the sanction they recommended for Green (see, e.g., Hrg.Cmte.Rpt. at 23-24). They also cited other cases that imposed the additional requirement of a fitness showing; but that only serves to emphasize that the decision to impose a “fitness requirement” – or its analogue in other disciplinary jurisdictions – is a highly case-specific determination in any disciplinary case. It rests chiefly on the immediate observations of the trier of fact. In Green, those observations had positive elements for the lawyer. That is not per se wrong or harmful to the public.

LPB derides as “laughably legalistic” the standard applicable in D.C. for making that determination, in which Bar Counsel is required to show, clearly and convincingly, that there is “serious doubt” about the attorney’s ability to meet professional standards in the future. As a former disciplinary prosecutor, I can see it as somewhat daunting to have to prove that there is doubt about something. Especially when phrased abstractly like that, it sounds a bit like being required to put a cloud in a box.

But it is equally difficult to conceive of a standard that places the burden elsewhere; should the respondent-attorney be required to prove – prior to the imposition of discipline – that there is no serious doubt of her future conformance to the Rules?

Burden-shifting of that kind should not occur in disciplinary cases. Courts and state bar authorities should be free to decide that some errant lawyers – who have shown appropriate mitigating facts – do not need to expend additional time, money, and judicial resources proving their rehabilitation. Contrary to LPB’s assertions, those determinations are not overly lenient, but rather appropriately mindful of all relevant factors; they are thus in the best interests of the profession and the public.

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