DISTRICT OF COLUMBIA BOARD ON PROFESSIONAL RESPONSIBILITY 15 Annual Report January 1, 15 - December 31, 15 43 E STREET, N.W., SUITE 138 WASHINGTON, D.C. 1 Telephone: () 638-49 Facsimile: () 638-474 www.dcattorneydiscipline.org
DISTRICT OF COLUMBIA BOARD ON PROFESSIONAL RESPONSIBILITY ANNUAL REPORT January 1, 15 - December 31, 15 Introduction The Board on Professional Responsibility is the adjudicative arm of the District of Columbia Court of Appeals, responsible for the administration of the attorney discipline system and the adjudication of cases of attorney misconduct against members of the District of Columbia Bar and others who fall within the Court s disciplinary jurisdiction. The attorney discipline system enforces the D.C. Rules of Professional Conduct, which were adopted by the Court to protect the public from unethical attorneys and to preserve the integrity of the legal profession. The Board is appointed by the Court and is composed of seven attorneys and two members of the public, who are not attorneys. Members of the Board are eligible to serve two consecutive three-year terms. All serve without compensation. The Board s Office of the Executive Attorney is responsible for supporting the Board in its administrative and adjudicatory functions. The Office of Disciplinary Counsel is charged with the investigation and prosecution of disciplinary complaints. This report summarizes the activities of the Board, the Hearing Committees, and the Office of Disciplinary Counsel in 15. Board Membership The Court appointed Robert C. Bernius, Esquire, the Board s Vice Chair, Jason E. Carter, Esquire, and Mary Lou Soller, Esquire, to second terms on the Board. John Barker completed his Board service in 15. The Board thanks Mr. Barker for his years of dedicated service to the discipline system. The Court appointed David Bernstein to fill this vacancy.
Other members of the Board include the Board s Chair, Eric L. Yaffe, Esquire, Patricia G. Butler, Esquire, Ms. Billie LaVerne Smith, Thomas R. Bundy, III, Esquire, and John C. Peirce, Esquire. The roster of Board members is included in Appendix A to this Report and may be found on the Board s website. The roster of the staff of the Board s Office of the Executive Attorney is also included in Appendix A and on the Board s website. Board Review The Board reviews contested disciplinary cases decided by the Hearing Committees, motions for temporary and disability suspension, and motions to dismiss petitions for reinstatement filed by the Office of Disciplinary Counsel. The Board also considers negotiated discipline, criminal conviction, reciprocal discipline, and reinstatement cases referred by the Court of Appeals. In contested cases, the Board hears oral argument, issues disciplinary orders, and files reports and recommendations with the Court. The Chair of the Board is responsible for ruling on substantive and procedural motions, including motions to compel a response to a disciplinary complaint, for temporary suspension based on the failure to respond to a complaint, for disability suspension, for consent to disbarment, for protective order, and for deferral of disciplinary proceedings, among others. Board Activity in 15 During the period January 1 through December 31, 15, 37 new cases, involving 69 disciplinary complaints, were filed with the Board. 1 These cases included 15 Hearing Committee reports (covering 33 complaints), one remand from the Court of Appeals, one criminal conviction case, eleven motions to accept consent to disbarment (covering 1 complaints), seven motions to 1 Multiple disciplinary complaints may be consolidated in a single case brought by Disciplinary Counsel.
dismiss a petition for reinstatement, one motion filed by Disciplinary Counsel seeking authority to petition the Court for an order of temporary suspension pursuant to D.C. Bar R. XI, 3(c), and one motion for the appointment of an attorney to protect client interests pursuant to D.C. Bar R. XI, 15. Table 1 shows the number of new cases (and the related number of complaints) filed with the Board from 11 through 15. TABLE 1 8 69 7 6 57 New Complaints/Cases Filed with the Board 11-15 69 5 4 3 34 3 43 41 8 9 37 Complaints Cases 1 11 1 13 14 15 During 15, the Board disposed of 7 cases (covering 47 complaints), including 18 recommendations (covering 33 complaints) filed with the Court of Appeals. The recommendations addressed nine contested petitions instituting formal disciplinary proceedings (covering 19 complaints) and nine motions to accept consent to disbarment (covering 14 complaints). The Board dismissed two cases, ordered Disciplinary Counsel to issue an informal admonition in one case, and dismissed three petitions for reinstatement. The Board also filed one petition with the Court to suspend an attorney pursuant to D.C. Bar R. XI, 13(c), denied one 3
motion to accept consent to disbarment and denied a petitioner s request for nunc pro tunc treatment of a period of disbarment. The Chair of the Board decided 99 motions. Board members approved Disciplinary Counsel s recommendations for diversion in two docketed complaints. Table shows the total number of cases (and the related number of complaints) resolved by the Board from 11 through 15. TABLE Complaints/Cases Resolved by the Board 11-15 1 17 1 8 6 4 4 44 5 5 36 46 47 31 7 Complaints Cases 11 1 13 14 15 4
Table 3 shows the number of motions decided by the Chair of the Board from 11 through 15. TABLE 3 1 1 Motions Decided by the Board Chair 11-15 1 99 8 78 77 76 6 4 11 1 13 14 15 11-15. Table 4 shows the number of diversion agreements approved by Board members from TABLE 4 Diversions Approved by Board Members (By Complaint) 11-15 18 16 14 1 1 8 6 4 18 16 15 15 11 1 13 14 15 5
The Hearing Committees The Board maintains a current roster of 94 attorneys and members of the public, who serve on the Board s 1 standing Hearing Committees and as alternate Hearing Committee members. All serve without compensation. Hearing Committees are composed of two attorney members and one public member. The Board has continued its efforts to maintain a broad range of professional experience and diversity on the Hearing Committees. Hearing Committees conduct full evidentiary hearings on Disciplinary Counsel s petitions instituting formal disciplinary proceedings and in contested reinstatement cases. Following the close of the evidentiary hearing in a contested discipline case, the Hearing Committee prepares a report with written findings of fact, conclusions of law, and a recommended sanction, which is filed with the Board. Reports in contested reinstatement cases are filed directly with the Court. Hearing Committees also conduct limited hearings on petitions for negotiated discipline. Before the limited hearing, the Hearing Committee may review Disciplinary Counsel s investigative file in camera and meet with Disciplinary Counsel ex parte to discuss the basis for Disciplinary Counsel s recommendation for negotiated discipline. The Hearing Committee files a report directly with the Court if it recommends the approval of negotiated discipline. Where it does not, it issues an order rejecting the petition for negotiated discipline. The roster of Hearing Committee members is included in Appendix B to this Report and is available on the Board s website. Hearing Committee Activity in 15 During the period January 1 through December 31, 15, Hearing Committee Contact Members approved Disciplinary Counsel s recommendations to dismiss 31 docketed complaints, to defer eight complaints, to issue informal admonitions in 17 complaints, and to file formal 6
disciplinary charges in 51 complaints. Forty-seven docketed complaints were referred back to Disciplinary Counsel for further consideration. Table 5 shows the number of docketed complaints reviewed by Contact Members from 11 through 15. 3 TABLE 5 6 5 4 3 1 Complaints Reviewed by Hearing Committee and Board Contact Members 15 488 374 445 11 1 13 14 15 487 46 Thirty-four new cases were filed with the Hearing Committees in 15, including 4 petitions instituting formal disciplinary proceedings (covering 35 complaints), five petitions for negotiated discipline (covering seven complaints), and five contested petitions for reinstatement. Table 6 shows the total number of cases (and the related number of complaints) filed with the Hearing Committees from 11 through 15. This number includes diversion recommendations reviewed by Board Contact Members and referred back to Disciplinary Counsel. 3 This number includes complaints referred back to Disciplinary Counsel for further consideration. 7
TABLE 6 8 7 Complaints/Cases Filed with Hearing Committees 11-15 73 6 5 4 43 36 43 41 47 34 3 5 6 1 11 1 13 14 15 Complaints Cases In 15, the Hearing Committees conducted 68 pre-hearing conferences, held 71 days of hearings, and completed hearings in 34 cases (covering 54 complaints). The Hearing Committees issued 15 reports (covering 33 complaints) in contested cases, and three reports recommending approval of petitions for negotiated discipline (covering three complaints), two orders rejecting petitions for negotiated discipline (covering six complaints), and one order granting Disciplinary Counsel s motion to dismiss (covering one complaint). The Hearing Committees closed one contested case (covering one complaint) following the Court s approval of a consent to disbarment. Table 7 shows the total number of cases (and the related number of complaints) resolved by the Hearing Committees from 11 through 15. 8
TABLE 7 5 45 4 35 3 5 15 1 5 4 Complaints/Cases Resolved by Hearing Committees 11-15 33 18 5 11 1 13 14 15 16 8 14 45 Complaints Cases 99 orders. Hearing Committees also decide evidentiary and procedural motions. In 15, they issued Table 8 shows the number of orders issued from 1 through 15. TABLE 8 35 3 Orders Issued by Hearing Committees 11-15 99 5 15 1 5 186 146 118 195 11 1 13 14 15 9
Negotiated Discipline Tables 9 and 1 show the number of petitions for negotiated discipline (and related number of complaints) filed and resolved by the Hearing Committees from 11 through 15. TABLE 9 18 17 16 14 Petitions for Negotiated Discipline Filed 11-15 14 1 1 8 6 4 8 4 4 6 7 5 Complaints Cases 11 1 13 14 15 TABLE 1 4 Petitions for Negotiated Discipline Resolved 11-15 1 1 8 6 4 1 6 8 3 7 3 9 5 Complaints Cases 11 1 13 14 15 4 Does not include petitions that were withdrawn. 1
The statistical reports for the Board and the Office of Disciplinary Counsel for the year ending December 31, 15, are included in Appendix C to this Report. The Office of Disciplinary Counsel The District of Columbia Court of Appeals changed the title of Bar Counsel to Disciplinary Counsel, effective December 19, 15. The Office of Disciplinary Counsel investigates all complaints and allegations of ethical misconduct and recommends dispositions ranging from dismissal, diversion, and the issuance of an informal admonition, to a petition for negotiated discipline or the institution of formal charges. The Office of Disciplinary Counsel has a dual function: to protect the public and the courts from unethical conduct by members of the D.C. Bar and to protect members of the D.C. Bar from unfounded complaints. Where formal charges are filed, the Office of Disciplinary Counsel prosecutes the charges before a Hearing Committee, the Board, and ultimately the D.C. Court of Appeals. The roster of the staff for the Office of Disciplinary Counsel is included in Appendix D to this Report and can be found on the Board s website. During the period January 1 through December 31, 15, 99 complaints were filed with the Office of Disciplinary Counsel, a decrease from the 993 complaints filed in 14. When a disciplinary complaint is filed, Disciplinary Counsel conducts a preliminary review or inquiry. Where the complaint does not provide a basis to open a formal investigation or where Disciplinary Counsel does not have jurisdiction, the complaint is treated statistically as an undocketed matter. Of the 99 complaints filed in 15, the Office of Disciplinary Counsel opened 353 docketed complaints for formal investigation. A docketed complaint is sent to the respondent attorney for a response, and the response is sent to the complainant for comment. Disciplinary Counsel also opened 464 undocketed complaints, where it concluded there was no basis for a formal 11
investigation. When Disciplinary Counsel does not formally investigate a complaint, a letter is sent to the complainant explaining Disciplinary Counsel s decision. Disciplinary Counsel also received 11 complaints from criminal defendants, or CJA Complaints. Disciplinary Counsel conducts a preliminary inquiry into CJA Complaints, and any complaints that are not docketed for investigation are handled in the same way as undocketed matters. Table 11 shows the breakdown of complaints received by Disciplinary Counsel in 15. TABLE 11 Complaints Received by Disciplinary Counsel 15 CJA 1% Undocketed 5% Docketed 38% Docketed complaints consist of original investigations, reciprocal discipline cases, cases involving criminal convictions, and petitions for reinstatement filed by a lawyer who was disbarred or suspended and required to demonstrate fitness to practice. Table 1 shows the breakdown of docketed complaints in 15. 1
TABLE 1 Reciprocals 1% Criminal Convictions 3% Reinstatements 4% Docketed Complaints 15 Original Investigations 8% Table 13 shows the breakdown of docketed complaints from 11 through 15. TABLE 13 45 4 35 3 5 15 1 5 45 398 Docketed Complaints 11-15 388 48 51 5 46 8 16 5 16 8 35 7 13 19 13 1 11 1 13 14 15 345 93 Original Investigations Reinstatements Criminal Convictions Reciprocals During the period January 1 through December 31, 15, Disciplinary Counsel disposed of 384 docketed complaints, with 347 complaints pending investigation at the end of the year. Disciplinary Counsel dismissed 31 docketed complaints, issued 17 informal admonitions, deferred eight complaints pending the outcome of other proceedings, filed petitions for negotiated 13
discipline in five complaints, agreed to diversion in two complaints, and filed petitions instituting formal disciplinary proceedings in 51 disciplinary complaints. Offices and Hearing Room Disciplinary hearings before a Hearing Committee and oral arguments before the Board are conducted in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals, at 43 E Street, N.W., Washington, D.C. 1. All hearings are open to the public. The Board s Office of the Executive Attorney is located in Suite 138 of the Historic Courthouse. The Office of Disciplinary Counsel is located in Building A of the Superior Court, at 515 5 th Street, N.W., Suite 117, Washington, D.C. 1. The Forty-Second Annual Disciplinary Conference The Forty-Second Annual Disciplinary Conference was held on April 8, 15. The topic was Building Your Ethical Muscle: Psychological Strategies to Boost Lawyer Compliance. Our panelists included Larry Richard, J.D., Ph.D., an organizational psychologist and former practicing lawyer; Paula Davis-Laack, J.D. MAPP, a stress and resilience expert and former practicing lawyer; and Sgt. 1st Class Daniel Mason, NCOIC, Master Resiliency Trainer in the U.S. Army. Disciplinary Counsel, Wallace E. Shipp, Jr., served as the moderator. The Co-Chairs of the Conference were Board members Thomas R. Bundy, III, Esquire, and John C. Peirce, Esquire. Fiscal Matters The attorney discipline system is funded by Bar dues. Maintaining an effective and efficient disciplinary system at a reasonable cost to Bar members is a primary goal of the Board. Funding for the Board and the Office of Disciplinary Counsel in Fiscal Year 14-15 was 31.77% of the active member dues in the Bar s approved dues funded budget, a percentage that 14
has remained relatively constant. In Fiscal Year 15-16, funding for the disciplinary system will remain at the same level. Click on FY 14-15 or FY 15-16 for additional budget information. Conclusion The Board appreciates the cooperation and support of the District of Columbia Court of Appeals, the Superior Court of the District of Columbia, the District of Columbia Bar, its General Counsel and Employment Counsel, and the staffs of the Office of the Executive Attorney and the Office of Disciplinary Counsel. The Board particularly wishes to acknowledge all those who serve as members of the Hearing Committees, as practice and financial monitors, and as Special Bar Counsel, and especially those former Hearing Committee and Board members who, having already given generously of their time, continue to support the work of the Board. The dedicated service of all of these individuals makes possible the effective functioning of our disciplinary system. May 17, 16 15