Washington Lawyer - January/February 2022 - 13

FEATURE
A Disciplinary Counsel's Retrospective: Changing Tools, Unchanging Mission
By H. Clay Smith III
O
n April 1, 1972, I was playing or
enduring practical jokes with classmates
at Alice Deal Junior High
School in Washington, D.C. On that
same date the Office of Bar Counsel (OBC)
became operational by virtue of the Court
Reorganization Act, one of the first steps in
the forging of home rule for District of
Columbia residents. OBC would be the
chief investigator and prosecutor for
attorney disciplinary matters in the District.
Ten years later, as a rising 2L at Howard
University School of Law, I was hired as a law
clerk at OBC. State-of-the-art tools of the
trade such as telephone landlines, pens,
paper, and correctable typewriters were all
the rage. Physical books housed in OBC's
library, such as the Atlantic Reporter and
Shepard's Citations, were essential for legal
research. There were, however, rumors of
word processing machines that would
obviate the need to re-type an entire 50-page
brief if a persnickety editor saw a typo, such
as one comma out of place, throwing off the
pagination. (How I pitied the secretarial staff.)
Such an innovation could not come soon
enough. Anyway, as an OBC law clerk I
learned how to be an attorney, seeing both
the best and worst ways to practice law.
After graduation and several years in private
practice, I returned to OBC in 1991 as an
assistant bar counsel. By then, WordPerfect
was the standard word processing system.
Couriers remained the primary way of efficiently
transporting documents to opposing
counsel and the courts. Historical physical
documents and files were stored on-site or at
a commercial off-site facility. Cell phones the
size of a small child emerged as a great new
communication device, but with it came the
unintended consequences of exorbitant
roaming charges and lawyers becoming more
accessible. (Is that really a good thing? Really?)
Personal computers with large monochrome
monitors were a must, and there were suggestions
of something called the internet.
Notwithstanding these
advances, we were still using
books for legal research, and
bad lawyers were still bad
lawyers. Business was booming
at OBC.
By the turn of the century
(ouch!), electronic communications
had advanced, and the
internet was a real thing. Cell
phones could fit in your pocket,
and roaming charges were
assessed only by the most predatory
of telecommunication
carriers. Personal desktop computers
with reasonably sized
color monitors adorned every
assistant bar counsel's office, so
legal research required just a few mouse
clicks. Reliance on couriers for delivering,
receiving, and filing legal documents became
a relic of the past. Historical documents and
files are stored in the cloud. The office still
has a library, but it is really small. The books
are there for the " senior " attorneys who
prefer books, but mostly just for decoration.
In 2016 OBC's name was changed to the
Office of Disciplinary Counsel (ODC).
Apparently, after more than 40 years of existence,
there were a few lawyers who did not
appreciate that Bar Counsel was a disciplinary
agency, rather than some sort of advisor to
members of the Bar. In all of my years as an
assistant bar counsel, I never crossed paths
with anyone so misinformed. Nonetheless,
our job titles officially changed to assistant
disciplinary counsel.
In March 2020, with COVID-19 declared a
national emergency in the United States, ODC
as well as the courts and the entire profession
became essentially virtual operations. Thanks
to the movers and shakers of technology and
adept office managers, it was a seamless transition.
Video conferencing, automated case
tracking, etc., allowed lawyers to continue
to ply their trade. Judicial proceedings continued
to be conducted, motions filed, and
orders issued. Bravo! Of course, the rise of
information technology and social media has
created a host of new ethical considerations.
But that's another story.
Smith in his office in the mid-1990s.
I retired as an assistant disciplinary counsel
on February 1, 2021. Throughout my 30 years
with the disciplinary system, there was one
constant: the bar's perception of the office
and the attorneys on its staff. In essence, the
Office of Bar/Disciplinary Counsel is feared,
revered, and reviled - not necessarily in
that order. From my experience, and in my
humble opinion, this perception is in many
cases overblown. But I do understand that
those attorneys who have something to fear
should. The reality is that the institution of
OBC/ODC carries out the mission undertaken
in 1972: to investigate allegations of attorney
misconduct and, where appropriate, prosecute
members of the Bar who violate the
District of Columbia Rules of Professional
Conduct.
H. Clay Smith III served as assistant bar counsel/
assistant disciplinary counsel with the D.C. Office
of Bar/Disciplinary Counsel from 1991 to 2021.
A graduate of Howard University School of Law,
cum laude, Smith clerked for D.C. Superior Court
Judge Paul R. Webber from 1984 to 1985 and
served as associate attorney at Steptoe &
Johnson from 1985 to 1991. He was an adjunct
professor of law periodically at both Howard
and American University School of Law as well
as guest lecturer for the D.C. Bar, the National
Bar Association, National Association for the
Advancement of Colored People, National
Institute for Trial Attorneys, and several others.
JANUARY/FEBRUARY 2022
* WASHINGTON LAWYER 13
Washington Lawyer - January/February 2022

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