A new report on how D.C. lawyers police themselves calls for opening now-secret disciplinary hearings to the public and for giving the Board of Professional Responsibility increased powers to mete out punishment--two of many recommendations sure to trigger heated debate within the bar.
The long-awaited 139-page report, three years in the making, was prepared by a bar committee under the direction of White & Case partner Paul L. Friedman and was released on New Year's Eve.
The wide-ranging report has 71 detailed recommendations aimed at improving the disciplinary system. Many of them--such as introducing a conciliation option between lawyer and complainant, improved screening of complaints to weed out the frivolous or having prehearing conferences to reduce the number of complaints that actually go to the hearing process--may not prove controversial.
But the notion of opening the hearings, which are conducted before appointed panels composed of two lawyers and a non-lawyer, triggered dissent even within the group drafting the report. And the idea of increasing the board's powers to discipline by, in effect, reducing the role of the D.C. Court of Appeals in that area is certain to meet resistance.
"The discipline of lawyers is public business," the committee argues, and opening the 75 or so hearings held each year to the public will enhance "public confidence in the ability of the legal profession to discipline itself."
The committee says that public hearings will also encourage prompt resolution of disputes and may encourage disciplinary system staff members to screen cases more closely. The proposal would not go into effect until improved screening and prehearing conferences and other reforms are in place to make sure complaints are valid, the committee notes.
Even so, some solo and small-firm practitioners are sure to object that public hearings discriminate against them. A solo practitioner loses his business when his reputation is tarnished, those lawyers argue. Lawyers at large firms are covered because, if nothing else, other partners are bringing in business while the complaint is reviewed.
Whenever the Board of Professional Responsibility imposes sanctions, those decisions have to be reviewed and approved by the D.C. Court of Appeals, which appoints the nine-member board.
That process is unduly cumbersome and time-consuming, the committee says, and leads to situations in which lawyers who have been recommended for disbarment (about five to 10 lawyers a year in Washington) can continue to take clients and practice until the court gets around to reviewing the board's recommendations.
The committee recommends that board sanctions less severe than disbarment, such as 90-day suspensions, go into effect pending appeals to the court, which would have the option of reviewing the cases, much as the U.S. Supreme Court can choose whether or not to review a particular case.
When the board votes to disbar a lawyer, the committee says, the action should continue to have automatic court review, but the lawyer should be suspended from practice pending that review. he committee also found proof once again for the old saying that a lawyer who represents himself has a fool for a client.
The committee found that lawyers who represent themselves before the hearing panels fare less well than those who hire lawyers to represent them.