"The Most Dangerous Idea In The History Of The District of Columbia Bar"

Mike Frisch, at Legal Profession Blog, opposes a proposal to shift control of the DC Bar's prosecutorial function to the Board of Governors.

Comments

[Rick Underwood]

John, this is very interesting. Most of us (PR teachers) are Bar members, practiced law in the "private sector," and may have served as Ethics Committee members or served on other committees as unpaid volunteers. Most of us have not been Bar Counsel. I always refer to Bar Counsel as "The Dark Side of the Force." That's probably just me (in my opinion, authority sucks, more or less, although it usually wins).

We have some issues in Kentucky about who Bar Counsel reports too. Does Bar Counsel have a client? Who governs the police? In an integrated Bar the Court has the ultimate authority, but can the employees who serve as Bar Counsel report to nobody - not the Board of Governors, the Director of the Bar, and thumb their noses at everybody ......??

I guess I do not understand how this is supposed to work. I do know that while it is important for prosecutors to have some independence, surely they must be accountable to someone. Perhaps your readers can help me out. At another level isn't this the problem we have with so-called independent prosecutors?

[Mike Frisch]

In The District of Columbia, the Bar Counsel cannot make any decision concerning a complaint without the approval of the court-appointed Board on Professional Responsibility or its designee. In no way do I advocate for an unaccountable system.

This is something different. The sought control comes from the organized Bar. The ABA Model Rules warn about just this sort of thing -- the primacy of the parochial and self-interested concerns of the profession.

My own view is that a Bar Counsel should be hired by and responsible to the state's high court. As a bar prosecutor, I thought that my "client" was the public and my obligation was to uphold the integrity of the profession.

[Stephen R. Diamond]

Mike,

So the Board on Professional Responsibility or its designee checks the Bar Counsel on specific cases, but that doesn't clarify: who does the Bar Counsel report to? Who hires the Bar Counsel?

Someone should write an article comparing and contrasting the various state-bar organizations.

[David Cameron Carr]

Mike raises a good point but the distortion of the system inherent in even the appearance of control by the bar can cut both ways, sometimes simultaneously. The State Bar of California has spent 30 years fighting the "fox guarding the henhouse" perception by advocating and enacting ever more punitive statutory and rule changes in the discipline system. At the same time, commonsense measures that would truly protect the public like requiring advanced unearned fees to be deposited into trust have never been enacted. The latest chapter in this institutional schizophrenia was the so-called "governance" debate that led last year to a change of name of the former Board of Governors to Board of Trustees and . The legislation that led the change recited in its legislative analysis such a weak bill of particulars as to the grounds for the alleged State Bar infirmity on public protection as to be laughable. Clearly the conclusion that lawyers could no longer be trusted to run the State Bar came first and the evidence came later. But the whole debate was meaningless because our State legislature had been effectively in charge of the discipline system for many years. It was just the an installment in the long running soap opera Discipline Theater (http://kafkaesq.com/2012/06/06/now-playing-discipline-theater/)

[Rick Underwood]

Thanks for the comments. This would make for a good study or article. There is a feeling here in Kentucky that some reform may be in order, but I must admit that I don't have a very good handle on the issues.

[Mike Frisch]

D.C.Bar Counsel is hired by, and serves at the pleasure of, the Board on Professional Responsibility("BPR"). I called for a change in favor of the Court of Appeals having this responsibility in my article on the D.C. system, but the plea fell on deaf ears.

The BPR consists of seven attorneys and two laypersons that the Court of Appeals selects from lists submitted by the Bar's Board of Governors("BOG"). So, even if you are willing to accept the proposition that the BPR is independent of the Bar, the BOG gets basically to choose the members of the BPR.

The Court, with infrequent exception, picks the candidate endorsed by the BOG. In my day, this was done by placing an asterisk next to the name when the list of candidates was transmitted to the Court.