Washington Lawyer - June 2019 - 22

Providing oversight of the ODC is the court's disciplinary arm, the ninemember Board on Professional Responsibility, which adjudicates all cases
of attorney misconduct and disability and administers the D.C. disciplinary
system.

involved. We don't want to be a political tool for the Democrats or
Republicans. If there is a clear violation of conduct, we will investigate
and pursue it.

Every year the ODC receives hundreds of complaints against Bar members
for alleged violations of the D.C. Rules of Professional Conduct, although
the majority of cases are ultimately dismissed, according to Disciplinary
Counsel Hamilton P. "Phil" Fox III. Fox assumed the role of chief prosecutor
of attorney misconduct cases against members of the Bar in 2017 after
serving as assistant disciplinary counsel for six years.

We have had a slight uptick in the past 14 months. We usually have fewer
than 1,000 cases a year. I don't see a pattern. The mix of cases seems to
be about the same. We have more political issues, but I don't think that
amounts to the difference. We see a lot of immigration cases, and I think
it's because immigrants are very vulnerable. If you're going to be an unscrupulous lawyer, immigrants are a good target.

Here, Fox explains the disciplinary process, the impact of judicial shortages
on the attorney discipline system, and why finding practice help is important for attorneys to avoid getting into disciplinary hot water.

We also get a lot of complaints from small firms and solo practitioners.
Often, it's because they don't have the infrastructure for asking advice. They
don't have a staff person or committee to spot troublesome conduct. Those
are the areas [where] we see most of our work.

How does the D.C. disciplinary system work, and what is the ODC's
typical caseload?
In the last 12 months, the Office of Disciplinary Counsel received 1,165
complaints. Of those, 749 were not docketed because we determined that
they did not allege a violation of the Rules of Professional Conduct. The rest
were investigated by our intake group to determine if they warranted full
investigation. After some preliminary investigation, which might include
subpoenaing documents or checking court records, more of the cases were
dismissed because there was in fact no violation of the Rules, or we could
not establish a violation by clear and convincing evidence.
Cases that warrant further investigation are transferred to our litigation
unit, which completes the investigation. Some of those cases are ultimately
dismissed, but if we decide that there is clear and convincing evidence of
a Rule violation, we file a specification of charges, the formal charging
document.
Minor misconduct can be diverted. Some lawyers consent to disbarment.
We can negotiate discipline if the lawyer agrees, although in the past 12
months we've only negotiated six cases. The rest are tried before a hearing
committee made up of three volunteers, one of whom is not a lawyer.
Following a hearing, at which evidence is taken and a written record is
made, we have a round of post-hearing briefing. The committee then issues
a report and recommendation. This report is then reviewed by the Board
on Professional Responsibility, another volunteer group that serves as a sort
of intermediate appellate court. It also writes a report and recommendation,
which is then reviewed by the D.C. Court of Appeals, following another
round of briefing. Ultimately, the court writes an opinion, which is published
in the Atlantic Reporter.

Has there been an uptick or decline in certain types of cases?

What advice would you give Bar members on the verge of getting
in trouble?
Well, they have to recognize they're in trouble. And if they do, the D.C. Bar
has several resources. The Practice Management Advisory Service (PMAS)
can assist a lawyer in managing his or her practice. We use the service often
to help lawyers we've diverted. The PMAS will audit their practice and give
them advice.
The Lawyer Assistance Program is designed for lawyers experiencing
substance abuse or mental health problems that interfere with their
practice. These are professionals paid by the Bar to help other lawyers
out.
Lastly, the Legal Ethics Committee can steer a lawyer toward the appropriate Rule of Conduct, and it's all confidential. In addition, attorneys can
call the D.C. Bar Legal Ethics Helpline.
Ultimately, they ought to consult with counsel who may help them for free.
Unfortunately, they can't come to us for legal advice. But if they spot the
issue early enough, there is help for them.
What about those who've already crossed the line?
Hire a lawyer and consult with counsel. That can be expensive, so sometimes they'll defend themselves.
Understand that we lose very few cases. We have lost two since I started
here in 2011. We don't win every single count, but by and large, if we bring a
disciplinary case, we're going to win it. My point is, don't make the situation
worse. Don't cover up. Don't lie. If you do that, those are two things the
court looks at when imposing sanctions.

If the court disbars or suspends a lawyer, the lawyer must petition for reinstatement. This requires that the lawyer prove his or her fitness to practice
before being readmitted, after serving a specified period of suspension or at
least five years of a disbarment. Some lawyers seek reinstatement, although
many do not satisfy their burden of proving they are fit to practice. Many do
not even make the attempt.

What you really need to do is take responsibility. The court will look at that
favorably. It doesn't always result in a prosecution. We have the ability to
divert a lawyer. They end up in a better situation as opposed to denying
what they've done, then losing the case.

With many high-profile attorneys in the headlines lately over ethical
troubles, discuss the importance of legal ethics in today's political
climate.

Recognize that it's not always going to be suspension or disbarment. The
Board on Professional Responsibility can reprimand a lawyer and censure
a lawyer. A number of lawyers are suspended sometimes for 30 days, and
they can practice once it's over.

You have to start by distinguishing ethics from professional responsibility.
The federal government has restrictions on employees that apply to
everyone, not just lawyers. I try to make sure our office is not used as a
political tool. Complaints are all confidential until we bring charges. If I
see complaints that look like part of the political process, I try not to get
22 WASHINGTON LAWYER

JUNE 2019

Is there life after discipline? Can lawyers take action to make
themselves whole again?

The lawyer has the burden of proving they are fit to practice again. Have
they kept current with the law? Accepted responsibility for their conduct?
Have they made the client whole? Have they put into place procedures
that will give the court assurance that it won't occur again?

https://www.dcbar.org/

Washington Lawyer - June 2019

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