Disciplinary System Study Committee

Report to the Board of Governors of the District of Columbia Bar on Changes in the Disciplinary System

Executive Summary
Recommendations

  • Authorize the Office of Bar Counsel (“OBC”) to enter into a consent to discipline agreement in any matter in which OBC and a Respondent agree as to facts, violations and the appropriate discipline in matters that do not present an issue of first impression. The consent to discipline agreement would not represent a plea bargain. The consent to discipline agreement would be presented to a Board on Professional Responsibility (“BPR”) Contact Member and then to a BPR Hearing Committee at which Respondent and OBC would be present. The Complainant would have the opportunity to attend the hearing. Final approval of the consent to discipline agreement would be by the BPR, except in cases where the sanction is disbarment or a suspension with proof of fitness in which case the final approval remains with the District of Columbia Court of Appeals (“Court”).
  • Reciprocal discipline cases should be disposed of by a Show Cause process issued by the Court rather than by referral to the BPR.
  • Permit the Court to suspend a Respondent for failure to answer a pre-petition order of the BPR about an OBC investigation of alleged serious misconduct. The suspension would be vacated automatically upon the Respondent fulfilling his/her obligation pursuant to the BPR order.
  • Permit a finding of violation to be made by a default judgment if a Respondent fails to answer an OBC Petition after notice, provided that OBC presents properly sworn testimony or evidence in support of the allegations of misconduct charged in the petition. The order of default would be set aside on a motion filed by the Respondent which sets forth good cause within 90 days of the Report and Recommendation by the Hearing Committee.
  • Eliminate the role of the Hearing Committee and the BPR in uncontested reinstatement cases which would be considered directly by the Court. Contested reinstatement cases would still be heard by a Hearing Committee but then submitted directly to the Court for decision. The BPR is eliminated from the process.
  • Empower the BPR to impose final discipline in disciplinary cases that do not involve disbarment or suspensions requiring a Respondent to demonstrate proof of fitness to practice law before reinstatement. All final discipline imposed by the BPR would be subject to discretionary review by the Court.
  • Change the investigative confidentiality rules to permit OBC, with the permission of the Chairperson of the BPR, to cooperate with other disciplinary agencies, law enforcement officials, and other attorney disciplinary bodies and related organizations.
  • Provide immunity for practice monitors except in cases in which the monitor engages in intentional misconduct or criminal activity.
  • Broaden the category of cases eligible for diversion.