The District of Columbia Bar has issued an unsually harsh statement criticizing the city's federal judges, but only after a four-month wait to make some the judges themselves did not mind the document being made public.
The critisim concerns the handling of a case in which a disciplinary panel of the city's federal judges suspended two attorneys from practice in federal court for one month this year because of a remark that appeared in an appellate brief signed by the attorneys seven years ago.
The incident is a prime example of the great deference paid to lifetime-tenured U.S. judges by members of the bor according to several attorneys who practice regularly in federal court here.
The bar's board of governors sent copies of the critical document to the federal judges, sources said, and the judges reportedly discussed the statement at an executive session and decided not to reply to it.
Only after U.S. District Chief Judge William B. Bryant informed the bar of the no-reply decision did the bar feel the judges were "prepared" for the statement to be made public, a bar official said yesterday.
The statement, adopted by the board of governors on July 12 said the bar viewed the 30-day suspension of the two attorneys as "vastly dispportionate to the offense" they committed.
The two attorneys, Leroy Nesbitt and Donald J. Chaikin, originally were suspended by the U.S. panel because they signed a brief containing an erroneous statement about a federal judge, a statement the lawyers claimed was not in the brief when they signed it. Nesbitt and Chaikin initially were suspension later was reduced to one month.
The bar's statement said the suspension "was so excessive as to suggest a tendency to over-react to that which personally affronts judges. It cannot help but have a chilling effect on even well-founded criticism."
Although critical of the judges' action, the bar's statement was still cautiously worded for the most part and concluded: "We express these views, not to earn, but to join the court in its effort to enforce high standards of professional performance."
They suspensions grow out of a statement that appeared in the appellate brief filed by Chaikin and Nesbitt in a 1971 criminal case.
The 41-page brief included the following comment: "The trial judge sought to dissuade counsel from representing the appelliant with the statements that no future political backing would be accorded counsel and that he would not be paid by the defendants (see minutes)."
There was no further discussion of that point in the brief, and the reference to "see minutes" did not appear elsewhere. The convictions of the three defendants on fraud charges was affirmed by the U.S. Court of Appeals.
The statement apparently went unnoticed until the defendants filed a request for a new trial on constitutional grounds in 1974 and won a new hearing that occurred last year in federal court here.
During that hearing, Chaikin and Nesbitt were called to the witness stand and questioned about the statement. When they said the comment was untrue and they could not explain it further, U.S. District Judge George L. Hart Jr., referred it to the court's grievance committee.
Although both attorneys have stated under that the statement was untrue and they could not explain it, they pointed out during the various hearings that one of the defendants whom they were representing was a disbarred lawyer who had access to the brief before it was filed.
The suspension order was signed by U.S. District Judges Barrington D. Parker, Thomas A. Flannery and Charles R. Richey after a brief trial in which attorneys for the two lawyers pleaded for leniency for their clients.
The original suspension order found Chaikin and Nesbitt "were careless and negligent and demonstrated an indifference to the importance of maintaing the integrity of the legal profession," and that their conduct was "unprofessional, improper and prejudicial to the administration of justice."
The Judges later reduced their suspension to one-month without further explanation. The two attorneys were reinstated to the rolls of the federal court on Sept. 26.
Ralph J. Temple, a member of the board of governors of the D.C. Bar. said he felt the bar's handling of the suspension incident set a bad precedent. "I don't think we need permission from judges to make a statement," Temple said yesterday.
Temple said he feels that lawyers have a duty to defend courts when they are subject to unfair attacks, and criticize courts when that may be necessary. But, he said, he also understands why attorneys are reluctant to make such criticism.
In addition to being able to retaliate against lawyers in specific cases that might come before them, judges have an enormous influence on an attorney's career, Temple said.
Saying se felt the one-month suspension was due to the fact that the erroneous statement concerned a judge. Temple said the suspension showed that judges overract "to anything that smacks of treading on the toes of a judge. Judges are much to sensitive to things that offend judges."