Elaine W. Kerr was disbarred as a lawyer after being convicted of stealing money from a client. Patick J. Christmas, another lawyer, was censured for falsely telling clients he was appealing their criminal convictions.
Both argued before the D.C. Court of Appeals that they deserved lighter discipline, citing - in a newly emergeing legacy of Watergate - what they considered the slap-on-the -wrist, one month suspension from law pratice in Washington given to former Attorney General Richard G. Kleindienst. He was disciplined after pleading guilty to charges of refusing to testify completery and accurately to a Senate committee at his confirmation hearing.
The "Kleindienst Defense" has become the major theme of Washington lawyers' agruments to avoid being disciplined by the courts and the District of Columbia Bar.
"It's very common. The Kliendienst decision is raised in pratically every case," said Fred Grabowsky, the D.C. Bar counsel who is in charge of diciplinary procedures.
Claude C. Wild Jr., former chief Washington lobbyist for Gulf oil who pleaded guilty to passing out $100,000 in illegal contributions to the Nixon campaign, used it.
So did Joel I. Keiler, who is fighting a one-month suspension for "wrongful misconduct (that) perpetrated a sham arbitration proceeding."
It does not appear to have been a very successful defense. It was ignored in three of the court cases on file with the D.C. Court of Appeals and the fourth - Keiler's - has not yet been decided. However, the defense has forced the Court of Appeals - the ultimate authority on the disciplining of lawyers - to justify disciplinary actions that are harsher than the one-month suspension handed to Kleindienst.
But the cases on file with the court are just the tip of the iceberg. Lawyers familiar with the multilayered disciplinary procedures of the D.C. Bar - in which few cases ever reach the public domain - say Kleindienst is raised in almost every argument, and often ignored.
The Bar's Disciplinary Board recommended that Kleindienst be suspended from the pratice of law here for one year, but the D.C. Court of Appeals, which has the final say, reduced that penalty to a one month suspension.
In a passage cited often by lawyers seeking reduced penalties, the appeals court said the bar's recommendation "appeared to have been underpinned by punitive consideration."
"Punishment forms no part in the disciplinary process," the appeals court added.
Christmas pointed to Kliendienst's argument before the court that disciplinary proceeding should "not lose sight of the need to avoid losing public confidence in the profession."
Because the appeals court said the bar disciplinary committee appeared to be punishing Kleindienst the Bar is wary about using the word "punish" in any of its disciplinary procedures.
"It is not meant to punish the attormey. It is meant to pretect the public, to instruct the attorney and preserve the integrity of the system from the publics and the attorney's viewpoint," said Grabowsky.
In the case where it has handed down decisions on the Bar committee's recommendations, the appeals court has gone out of its way to explain why the Kleindienst case does not apply.
In the Wild case, for instance, the court specified tsat it agreed with a disciplinary board statement that "We do not read the Kleindienst case as setting the disposition standard for cases involving criminal conduct involving the political process."
Wild's case, the court said later, was not like Kleindienst, who at his Senate confirmation hearing for the job of Attorney General did not tell the full truth about the Nixon White House's relations with ITT.
Istead, the court said, Wild "knowingly engaged in a deliberate and designed course of illegal conduct."
Aside from offering a new line of defense for lawyers trying to avoid bar discipline, the Kleindienst case vividly illustrates the fragmented nature of attempts to keep lawyers honest.
While the D.C. Court of Appeals suspended Kleindienst from practicing law in the city for 30 days. U.S. District Court here - the federal court that has its own disciplinary him.
So, he could appear in that court. He also could appear before federal agencies, other federal courts and courts in other states.
But, said Grabowsky, since the D.C. Bay and the D.C. Court of Appeals control the pratice of law in the city, Kleindienst could not have conterred with clients during his suspension. The Bar counsel acknowledged that Kleindienst probably could have seen clients in Virginia and then driven with them to the courthouse.
"It's a bag of worms," acknowledged Grabowsky.
To avoid the differences between the two major courts here, Grabowsky said the U.S. District Court since the Kleindienst case has followed the lead of the D.C. Bar and the D.C. Court of Appeals in disciplinary cases.
Lawyers, who in the past have shied away from disciplining fellow members of the bar, are just beginning to increase their vigilance. The American Bar Association reported a 172 per cent increase from 1973 to last year in the number of lawyers disciplined.