No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia

Can lawyers be trusted to police themselves? Self-governance is a cherished and well-entrenched prerogative of the legal profession. In the main, lawyers promulgate the ethical rules that govern their conduct in connection both with the practice of law and their personal lives. When questions are raised concerning the application of these ethical standards, lawyers dominate the decisions (i) whether or not to file charges, (ii) how disputed facts should be resolved, and (iii) with respect to the appropriate sanction. The preamble to the American Bar Association ("ABA") Model Rules of Professional Conduct posits that selfregulation, with ultimate regulatory authority vested in the courts, is necessary to "maintain the legal profession's independence from government domination" as "abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice."1

The ABA's concern about governmental, as opposed to judicial, authority over the legal profession may be well-founded. When there is an issue of an ethical violation, courts adopt one of several models to determine if there has been misconduct and to impose sanction: sitting judges, specialized administrative law judges, volunteers, or a combination of the three. Serious concerns about self-regulation exist when courts delegate substantial authority for fact-finding and sanction decision to volunteer lawyers rather than independent judicial or quasi-judicial officers. Volunteer systems use lawyers and laypersons to consider ethical violations, with the lawyers always having the majority vote. The District of Columbia has operated under such a volunteer system for over thirty years.

Unfortunately, the volunteer system has not worked. Cases are kept alive and pending for years. When the volunteer work is done, it far too frequently reflects the interests of the profession to the detriment of the public interest. This Article seeks to evaluate the District of Columbia attorney discipline system. As the title suggests, this Article concludes that the system is deeply flawed and in need of fundamental change.

The overarching purpose of any attorney disciplinary system is to protect the public and the courts from lawyers who have demonstrated by their conduct that they are unfit to fulfill the responsibilities of the legal profession. As Rule XI, section 2(a) states:

The license to practice law in the District of Columbia is a continuing proclamation . . . that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.

The potential danger encountered in achieving this purpose in the real world is well-expressed in the Preamble to the Model Rules of Professional Conduct: "The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."2

I. THE DISTRICT OF COLUMBIA DISCIPLINARY SYSTEM

The present District of Columbia Bar was established by the District of Columbia Court of Appeals (the "Court"), an entity created by the District of Columbia Court Reform and Criminal Procedure Act of 1970.3 Prior to that time, admission to and removal from the practice of law in the nation's capital was the responsibility of the United States District Court for the District of Columbia.4 Recognizing that it could not conduct original proceedings to adjudicate charges of misconduct against its members, the Court promulgated Rule XI, which created a disciplinary system and set out procedures by which such allegations are investigated, prosecuted, and resolved.5 While Rule XI has been amended several times since its initial adoption, the basic disciplinary structure has remained intact.6

The Office of Bar Counsel ("Bar Counsel") receives all complaints concerning allegations of ethical misconduct against members of the District of Columbia Bar.7 Bar Counsel makes an initial determination as to whether the allegations, if true, may warrant sanction. If the complaint is either unfounded on its face or outside the Court's disciplinary jurisdiction, no investigation is undertaken.8 If Bar Counsel decides to investigate, the accused attorney must be "afforded an opportunity to respond to the allegations."9 Bar Counsel may, subject to a process of review described more fully below, either dismiss the complaint, offer the attorney a confidential program of diversion, issue an informal admonition, or file formal charges of ethical misconduct.10 The Bar Counsel and its staff are appointed by and serve at the pleasure of an entity known as the Board on Professional Responsibility (the "BPR" or "Board")." The Board sets the compensation for all Bar Counsel personnel.12