Washington Lawyer - January/February 2022 - 14

FEATURE
just those who can pay our fees, but [also] those who are unable
to because they are destitute but still need legal assistance.
JK: Yes. And I would also say that's not only an individual obligation.
I think that's a firm obligation, and an obligation of the corporate
employer. This is something that needs to be done. The encouragement
should come not only from the bottom up - from the individual
lawyers - but [also] from the top down.
ML: Jack, let me ask you a couple of general questions about the ethics
rules and the disciplinary system. Attorney discipline depends primarily
on voluntary compliance and peer pressure to ensure compliance. In
those instances where that doesn't work, an attorney can receive assistance
from the D.C. Bar Lawyer Practice Assistance Committee [now
Practice Management Advisory Service] to address deficiencies in their
practice, and clients can seek help from the Bar's Attorney/Client
Arbitration Board when there is a fee dispute with an attorney, or from
the Clients' Security Trust Fund to recover funds a lawyer has improperly
taken from a client.
Finally, if a complaint is filed against an attorney, the D.C. Office of
Disciplinary Counsel will investigate the allegations and prosecute the
attorney in appropriate cases. A Hearing Committee of the D.C. Board
on Professional Responsibility, then the Board itself and the D.C. Court
of Appeals, will be called upon to adjudicate the case. Looking at this
system as a whole, how well do you think it serves the public and the
Bar today? Are there changes you would make to improve the system?
JK: Well, I'd break it down into parts. First, the Clients' Security Fund is
essential. We have too many lawyers who are stealing client funds, and
you're not able to recover the funds from the lawyer. Therefore, we need
that fund. The trustees do a good job. I am not that familiar with the
[Practice Management Advisory Service], but with respect to the disciplinary
system, the big problem is delay.
I really appreciate the good work done by you and your colleagues in
the Office of Disciplinary Counsel essentially prosecuting misconduct by
lawyers, and the really good work done by the volunteers on the Hearing
Committees and on the Board on Professional Responsibility. . . . But
there was often a long delay in getting decisions from a Hearing Committee,
or from the Board, or from the Court of Appeals. So, there's
a real problem, I think, that some attorney misconduct just continues
and continues. Now, court delay is not a new problem, and I don't have
a solution to that. I think more use of summary procedures by the Court
of Appeals is something that should be considered.
I don't know how the Board can speed things up. If you're going to have
hearings before Hearing Committees made up of two busy lawyers and
a busy nonlawyer, and you need to coordinate the schedules of the
lawyers who are appearing before that committee, you're going to have
inevitable delay. When you have volunteer lawyers who then must write
often lengthy reports of their decision, even though they do get staff
help, it just adds to the delay. I think innovative ways to try to speed
things up, with perhaps more effective use of interim relief such as a preliminary
injunction, may be appropriate.
ML: Excellent points, Jack. Based on my current experience working
at the Office of Disciplinary Counsel for two and a half years, I agree that
delay is probably the biggest problem in our system. As you know,
I chaired the ABA's Standing Committee on Professional Regulation,
14 WASHINGTON LAWYER * JANUARY/FEBRUARY 2022
''
Delay is probably the biggest
problem in our system ...
the only beneficiary of such a
system is the bad lawyer.
and in that role I got to observe disciplinary systems around the country.
The District of Columbia system probably has more delay built into its
process than any other system I have seen.
The only beneficiary of such a system is the bad lawyer who can continue
to practice until there's a final decision in their case. The lawyer's
clients and the public are adversely affected by delay because the bad
lawyer can still practice until suspended or disbarred. So, I agree with
you. That is a big problem in our system. Hopefully, the Court of Appeals
will address it.
ML: You now are general counsel of an association of independent
member organizations. Like you, many D.C. Bar members are in-house
counsel for organizations, associations, nonprofits, and corporations. Do
the Rules of Professional Conduct address issues faced by lawyers in
these practice environments? Are there changes you'd like to see that
would make the rules more relevant to your practice environment today?
JK: I think the rules are relevant right now to in-house counsel, particularly
the pro bono rules. You'll be delighted to know that there are organizations
doing their best to have in-house corporate counsel be as
actively mobilized to accept pro bono work as are many of our large law
firms. The Association of Corporate Counsel sponsors numerous in-house
counsel events for those lawyers. One of the things that I have been
doing not only through ACC but [also] through the Washington Council
of Lawyers, where I'm the only in-house lawyer on its board, is to insist
that we advise in-house counsel how to set up in-house pro bono
programs. More and more corporations in the Washington, D.C., area
are moving in this direction. So, yes, the rules do apply.
continued on page 19
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