Washington Lawyer

Q&A With Eric Yaffe: Chair of the Board on Professional Responsibility

From Washington Lawyer, January 2015

By David O'Boyle

Eric Yaffe, photo by Patrice GilbertThe Board on Professional Responsibility (the board) administers the disciplinary system of the District of Columbia Court of Appeals. Established by the Court of Appeals pursuant to Rule XI of the D.C. Court of Appeals Rules Governing the D.C. Bar, the Board on Professional Responsibility adjudicates cases of attorney misconduct and disability. The nine-member board is comprised of seven attorneys and two members of the public; all are unpaid volunteers nominated by the D.C. Bar Board of Governors and appointed by the D.C. Court of Appeals. Board members are eligible to serve two three-year terms. The board appoints members of the hearing committees, which serve as the trial level of the disciplinary system. The board, together with the Office of Bar Counsel and the Office of the Executive Attorney, make up the lawyer disciplinary system in the District of Columbia, which is funded through D.C. Bar member dues.

Washington Lawyer recently sat down with Eric L. Yaffe, chair of the board and managing officer of the Washington, D.C., office of Gray Plant Mooty, to talk about the Board on Professional Responsibility and its work within the disciplinary system.

What is the Board on Professional Responsibility’s central mission?
The board’s central mission is to protect the public, the courts, and the legal profession by ensuring that the rules that govern all lawyers are abided by in the District of Columbia. We are trying to make sure that there is a fair process, that attorneys and complainants have an opportunity to be heard, and that a fair decision is ultimately rendered.

How would you describe the Board on Professional Responsibility’s role within the larger disciplinary system?
The Board on Professional Responsibility’s role is really twofold: There is both an administrative role and there is what I would call more of a legal role.

As to the administrative role, the board is responsible for running the disciplinary system as an arm of the Court of Appeals. So we will review and prepare a budget, which is ultimately approved by the Bar. We are involved in setting rules that govern the disciplinary system and the disciplinary process.

We are involved in the recruitment of hearing committee and board members and the training of hearing committee members as well. We manage the board and the Executive Attorney’s Office as well as the Office of Bar Counsel and oversee those two offices, including ensuring that they have the resources that they need.

Of course, our role also includes adjudicating cases, including the review of recommendations from the hearing committees, hearing oral arguments, and drafting reports and recommendations for review by the Court of Appeals. That is our legal role.

How would you describe the Board on Professional Responsibility’s relationship with the Court of Appeals?
The Board on Professional Responsibility has an excellent relationship with the Court of Appeals. The board looks to the court, which provides the board guidance and support through its case law, and interacts with the court on a regular basis on matters of importance to the disciplinary system.

The court also supports and takes part in the board’s training program for hearing committee members. The court provides the board with crucial guidance and support in both our administrative and adjudicative functions.

When did you begin to get involved with the Board on Professional Responsibility?
I started with the Board on Professional Responsibility in 2004. I had always been interested in public service. Early in my career, when I was an associate at Goulston & Storrs in Boston, I was chair of the Young Lawyers Division of the Boston Bar Association, and we were involved in a number of public interest projects.

When I moved to the District of Columbia in the early ’90s, I was a federal prosecutor with the U.S. Department of Justice. When I left the government in 2000, in addition to doing pro bono work at my firm, I was looking for something else to get involved with. I happened to notice an advertisement for hearing committee members for the disciplinary system, and I applied to become a hearing committee member. That’s where I started.

So you worked your way up from the hearing committees?
Yes. I started as a lawyer alternate hearing committee member. Then I became a member of a hearing committee and then chair of a hearing committee. I was a member of hearing committees for five or six years, and then I was appointed to the Board on Professional Responsibility. I have two years left as a board member—this year and next.

What interested you in the disciplinary system?
I was interested in public service, generally. I thought the disciplinary system would be a good way of giving back to the D.C. community.

It seemed like a natural transition for me to go from being involved with the Department of Justice to getting involved with the disciplinary system. As a prosecutor, you are prosecuting cases that involve wrongdoing and are enforcing criminal laws, and the disciplinary system, in some respects, is a prosecutorial-type system where there is the enforcement of rules and regulations governing attorneys.

How does the disciplinary system work?
There are really four levels in the disciplinary system. It starts with the Office of Bar Counsel, which is the investigative and prosecutorial arm of the disciplinary system.

So when a matter first comes in, the Office of Bar Counsel conducts an investigation and makes a determination as to whether the matter should be dismissed or should proceed. In some instances, there might be an early resolution to matters that aren’t dismissed by way of an informal admonition or diversion.

The Office of Bar Counsel makes that initial determination, which is reviewed by a hearing committee member who will take a look at the file to make sure that Bar Counsel’s determination is reasonable and consistent with Rule XI. If Bar Counsel seeks diversion, a member of the Board on Professional Responsibility is required to review and approve the diversion agreement.

If Bar Counsel decides to go forward with what we call a specification of charges, then the matter goes to a hearing committee for review. The hearing committee will have a limited hearing if it is a negotiated discipline matter. But if the respondent contests the charges, then the hearing committee will hear the case and a trial will take place.

The hearing committee is comprised of two lawyer members and one public member, all of whom are volunteers. There is an examination of witnesses by Bar Counsel and the respondent or the respondent’s lawyer, exhibits that are submitted into evidence, and then the hearing committee will make an initial determination and consider the appropriate sanction. The hearing committee’s findings of fact, conclusions of law, and any sanction that it recommends, are reduced to writing and reported up to the Board on Professional Responsibility.

If the hearing committee’s decision is contested by either party, that is, if either party appeals the hearing committee’s findings, then the Board on Professional Responsibility will hear oral arguments on the matter. The Board on Professional Responsibility will review the hearing committee’s findings, hear oral arguments, and make its report and recommendations to the D.C. Court of Appeals, which is the ultimate decision-maker in the process.

The D.C. Court of Appeals will either agree or disagree with the board, or remand the case for further consideration. The court may disagree as to the findings of fact, the board’s findings of violations, and/or the sanction that we have recommended.

Is there often agreement between the Board on Professional Responsibility and the court?
The standards that govern the court’s review of the Board on Professional Responsibility’s recommendations are found in Rule XI. Generally, the court defers to the hearing committee’s findings of fact, considers the board’s conclusions of law de novo, and defers to the board’s recommended sanction if it is consistent with other sanctions imposed for comparable misconduct and not otherwise unwarranted. Thus, the court will often agree with the board, but certainly will exercise its independent judgment if it disagrees with our findings and recommendations.

What forms of discipline can be taken against attorneys who have broken the rules?
Initially, in many cases, there will be a determination made at an early stage that the matter should simply be dismissed, for a variety of reasons. There are also instances where the Office of Bar Counsel will determine that there should be diversion—that certain conditions should be imposed on the attorney if the violation is minor and the misconduct otherwise qualifies for diversion under Rule XI. If the diversion conditions are met, then the attorney will have no record of misconduct. In that case, the Board on Professional Responsibility will look at the diversion agreement and make sure that we agree that that is an appropriate determination.

Bar Counsel may also write a letter of informal admonition, which is the lowest level of sanction and is public. The informal admonition is published in Washington Lawyer and on the D.C. Bar’s Web site, and only used for generally minor violations. There can also be a board reprimand, which is a slightly higher level of discipline than an informal admonition.

There can also be a public censure, which is imposed by the D.C. Court of Appeals. These first few sanctions are all for relatively minor violations of the rules. Again, these are all forms of public discipline—the informal admonition, board reprimand, and the public censure—but the individual can still practice law and has not been suspended. 

In some cases, an individual receives a suspension from the practice of law. That can be for a short period of time, like 30 days, or it can be for up to three years. Suspensions can be imposed with conditions, including placement on probation with practice or other forms of monitoring. Suspensions also can be imposed with or without what we call a fitness requirement. That is, where there is no fitness requirement, the attorney can go back to practicing law upon the expiration of the period of suspension. Where the attorney is required to prove fitness to practice as a condition of reinstatement, the attorney must prove by clear and convincing evidence that the attorney is fully rehabilitated and that the attorney’s reinstatement is not inconsistent with the protection of the courts, the profession, and the public. Disbarment, which is the equivalent of a five-year suspension with a fitness requirement, is imposed for the most serious instances of misconduct.

What kind of evidence do individuals need to provide to prove fitness?
They need to establish by clear and convincing evidence that they have the moral qualifications to be members of the Bar, that they have the character to be members of the Bar, that they are currently competent to be members of the Bar and have the requisite skills, and that they appreciate the seriousness of their misconduct. There are specific factors that the court will look at, including the ones that I just mentioned, in determining whether someone is in fact fit to be reinstated and to practice law again in the District of Columbia.

Where do proceedings originate?
When we talk about an original case, we are really talking about something that originates with the Office of Bar Counsel. But the Office of Bar Counsel can receive a complaint from any source. It could be from a third party. It could be from a judge. It could be from the attorney’s client who is complaining about the work that the lawyer did. It could also be through a newspaper article or something that the Office of Bar Counsel otherwise becomes aware of.

Of course, in other cases, the matter doesn't originate with Bar Counsel. It could be what we call a reciprocal discipline matter, which comes from another jurisdiction. If D.C. Bar members have been subject to discipline in another jurisdiction, they actually have an obligation to let the Office of Bar Counsel in the District of Columbia know about that. Reciprocal discipline is imposed only where an attorney has been disbarred, suspended, or placed on probation. If the discipline from the other jurisdiction does not include suspension or probation, the court orders publication of the fact of that discipline in this jurisdiction. Sometimes attorneys will not let D.C. Bar Counsel know that they have been disciplined in other jurisdictions and we find out through other means, either by a court in another jurisdiction, perhaps a bar in another jurisdiction, or through an article or some other means. Those cases are typically opened as reciprocal discipline matters, as opposed to the ordinary process that begins with an investigation by Bar Counsel.

In addition, formal disciplinary proceedings are opened when an attorney is found guilty of a crime or pleads guilty or nolo contendere to a criminal charge. Attorneys must report guilty findings or pleas to the Board on Professional Responsibility and the Court of Appeals. If the crime is found to involve moral turpitude, disbarment is mandatory.

What is the ratio of reciprocal proceedings to proceedings originating in the District of Columbia?
I think that perhaps 5 percent to 10 percent of the matters that we see in the system are reciprocal discipline proceedings, and the other 90 percent to 95 percent are original matters. But that is still very high relative to what you see in other jurisdictions. We tend to get a lot more reciprocal cases than other jurisdictions do.

Why does the District of Columbia see a relatively higher number of reciprocal proceedings?
There are a lot of practitioners in the District of Columbia who have D.C. Bar licenses but primarily practice in other jurisdictions. I think that is largely because there are so many people who temporarily, or for particular matters, join the D.C. Bar, especially if they do a lot of work with the government.

I do not think that is the case as much in other jurisdictions. We tend to have a lot more practitioners who are also barred in other jurisdictions.

The Disciplinary System Study Committee studied the issue of reciprocal discipline, among other issues. What were the recommendations from that committee?
The committee’s recommendations ultimately resulted in the 2008 amendments to Rule XI, which included changes to the reciprocal discipline process. Before then, the Board on Professional Responsibility would weigh in on each reciprocal discipline case. As a result of that, it clearly slowed down reciprocal discipline matters and it took longer to resolve those cases.

Because of the nature of reciprocal discipline cases—since someone has already gone through the process in another jurisdiction, presumably the case has been brought by Bar Counsel or investigators in a different jurisdiction, and there has been appropriate due process throughout—the notion was that perhaps we could have a more expedited process at that point since the case has already been heard elsewhere.

Today, the Board on Professional Responsibility only gets involved in reciprocal matters if the court wants our input. It’s not automatic. As a result, reciprocal discipline cases are able to move through the system more quickly.

How long, beginning to end, do the proceedings usually last?
I would say there is really no typical length to the proceedings. There are so many factors that determine whether a proceeding takes a long or a short period of time. The length of proceedings typically depends on the complexity of a case and of the legal issues presented, including the number of violations and the number of complainants—perhaps it is only a single person who is complaining, in other instances, we could have five or 10 complainants in a case. 

There are many checks and balances in the system, and there is a lot of due process, and with that the possibility of delay. We want to make sure that every party involved is treated fairly, and the important thing is that we get it right. Certainly, we always try to move the cases along as quickly as possible, but sometimes they can take more time than we would like because of the nature of the process.

Can attorneys still practice during an ongoing investigation?
In most cases, an attorney can continue to practice while the investigation is ongoing, but there are exceptions where removing the attorney from practice is necessary to protect the public. If an attorney has committed what is considered a serious crime, then the Court of Appeals will issue an order of temporary suspension pending the conclusion of the proceeding, because the court wants to ensure that the public is adequately protected. If there is a reciprocal matter and the person has been suspended or disbarred, then the court will automatically suspend or disbar that person pending the determination as to whether there should be identical reciprocal discipline; that is, the same discipline that the other jurisdiction imposed.

The court will also impose a temporary suspension where the attorney appears to pose a substantial threat of serious harm to the public or has failed to respond to an order of the Board on Professional Responsibility in a matter where Bar Counsel’s investigation involves allegations of serious misconduct. 

So there are some instances where an attorney will be temporarily suspended pending the outcome of the case, but that attorney can petition for reinstatement if there are reasons for the suspension to be lifted.

What must an attorney do to apply for reinstatement?
An attorney must file a petition for reinstatement, and if Bar Counsel does not contest the reinstatement, but actually believes that the person is fit to go back to practice, then Bar Counsel will draft its report to the court and make that recommendation, providing support for why Bar Counsel believes reinstatement is appropriate. The court will then make a decision as to whether the person should be reinstated.

If it is a contested matter, then it will go to a hearing committee to determine whether there is clear and convincing evidence proving that the person is fit and qualified to practice law in the District of Columbia. The hearing committee’s report will go directly to the D.C. Court of Appeals. The court, in some instances, will send the matter to the Board on Professional Responsibility for our recommendation, but if it does not, it will simply decide whether the individual should be reinstated.

Tell me a little about the Mandatory Course on the D.C. Rules of Professional Conduct and District of Columbia Practice. What is its role in the disciplinary system?
The Mandatory Course itself is not a part of the disciplinary system. It’s a part of the education of all new attorneys in the District of Columbia, but we see it as important because the ethical component of the course is obviously a major component of the course as a whole.

Gene Shipp, who is Bar Counsel, provides a real world perspective through actual discipline cases on violations of the ethics rules and ethical pitfalls that land lawyers in the disciplinary process. His presentation actually happens to be a very popular part of the course, and I think that it is important to ensure that newer attorneys are fully familiar with the rules—not only the rules themselves and the specifics of the rules, but the nuances and things that might not be readily apparent. That’s where Gene Shipp comes in; he does a great job in teaching that segment of the course.

How do people get involved with the Board on Professional Responsibility?
The best way to get involved is to apply for appointment to serve as a member of a hearing committee. The board looks for potential candidates from wherever we can find good people. We are looking for people who are thoughtful, who are good writers, who are analytical, and who have the right judicial temperament for these positions. We also seek candidates from a variety of legal practices and who reflect the broad diversity of our bar and the public. 

We welcome recommendations from any source. We advertise in Washington Lawyer, on the Bar’s Web site, and also find attorneys through word of mouth. Of course, we want people who are really passionate and interested in the disciplinary system and who are interested in serving the community in the way that we do.

At the board level, recommendations are generally made from among the pool of members of the hearing committees. We believe that experience as a hearing committee member, which allows a candidate to master our disciplinary law and procedure, is a key qualification for membership on the board. It is the people who have shown a passion for the work and an interest in it, and who have served well at the hearing committee level, who are elevated to the board. The D.C. Bar Board of Governors makes recommendations to the Court of Appeals, and the court appoints members to be on the Board on Professional Responsibility.

What is the time and work commitment for a Board on Professional Responsibility member?
Substantial. We meet every other week and those meetings tend to be two to three hours or so in length. We hear a number of oral arguments throughout the year. The members of the board each take on a number of reports to draft. We deliberate over each matter and have discussions as to what the appropriate result should be.

In some instances, if someone disagrees with the board’s determination or its reasoning, they will draft a dissenting or a concurring statement. The reports can take quite a bit of time to draft and research, so it is a fairly substantial commitment, and that is why we want people who are really interested and passionate about doing this work.

Is training provided?
Training is provided to all hearing committee members. There is a substantial training session, and materials are provided so that each hearing committee member has a sense of what their role is in the process, what the rules are, and how other cases have been decided that might be similar to the ones they will be hearing. There is also training of all hearing committee members that the court is involved with.

Also, the board’s Executive Attorney’s Office is a tremendous resource for everybody involved in the system. There is Executive Attorney Betty Branda, Deputy Executive Attorney Jim Phalen, as well as other attorneys who really do a very good job in providing support to board members. They are there as a resource and are always quite helpful.

What is the significance of the public members in the disciplinary system?
The system’s mission, in part, is to protect the public and to protect the citizens of the District of Columbia. It seems fitting that as part of that process, at least some members of the public are involved. In addition, though, these people bring a fresh perspective as nonlawyers to the process, and they tend to bring with them a lot of common sense. 

Sometimes lawyers get mired in the particulars of a case and the nuances of the law, and perhaps we tend to, on occasion, miss the forest for the trees. That is where public members can be extraordinarily helpful in seeing through that and giving their gut and their common-sense reactions to the cases. We all find, as lawyers, that public members are quite helpful to the process.

Are public member volunteers difficult to find? Is it hard to advertise a need for them?
Overall we are able to find good people who are really interested in the work we do. We have a lot of interesting people in this area with a variety of backgrounds. A lot of them are excited about getting involved in the legal process because it is something different that they have not experienced before. Most, when they get involved, find it to be a very rewarding and enriching experience.

So overall, we tend to be able to find some very good people with interesting backgrounds. They come from medicine and business and government. They are writers; they are economists. They really have had rich lives and that is another reason why they bring to the process a lot of good insights that we would not otherwise have.

What is the most rewarding part of being involved with the Board on Professional Responsibility?
The feeling that I am helping to benefit the community and individuals whose voices might not otherwise be heard if we did not have this process. There are people who get involved in this process who find themselves in problematic situations with their lawyers who really cannot afford to take the matter to court or to arbitration. This is a system that permits them to have an opportunity to be heard, and I believe we fairly and even-handedly try to resolve all matters in a thoughtful and deliberate manner, and that is a good feeling.

Reach staff writer David O’Boyle at [email protected].