A proposal to give the District of Columbia Bar’s Board of Governors more control over the budget of the bar’s disciplinary arm has sparked a backlash, with officials on the disciplinary side warning that the changes could threaten the bar’s ability to police its members.
The changes to the bar’s rules, spelled out in a June 18 letter from the bar to the District of Columbia Court of Appeals, would give the bar new authority to approve the disciplinary arm’s contracts. The bar already funds the disciplinary system and approves its overall budget; the proposed changes would expand the bar’s oversight of how that money is spent.
Bar leaders say the proposal is about making sure there’s accountability for what amounts to about 30 percent of the bar’s more than $20 million budget funded by dues. But officials with the disciplinary arm, which includes the Board on Professional Responsibility and the Office of Bar Counsel, say they fear the changes would chip away at their independence and hurt public confidence in the bar’s ability to go after lawyers accused of misconduct.
Leaders of the professional responsibility board — the body responsible for administering attorney discipline — sent a June 1 letter to then-bar President Darrell Mottley saying that they planned to “vigorously” oppose the changes. “These proposals would work a fundamental change in the relationship between the Board on Professional Responsibility…and the [D.C. Bar Board of Governors],” wrote board chair Ray Bolze and vice chair Deborah Jeffrey. “[T]hey pose a substantial threat to the independence of the disciplinary system.”
At the heart of the letter is a fear that elected bar leaders would suddenly have leeway to interfere with the disciplinary arm’s operations and with the bar counsel and its longtime chief, Wallace “Gene” Shipp Jr. Shipp, who declined to comment, oversees misconduct investigations and prosecutions involving members of the bar.
Bar leaders say they have no interest in meddling in the disciplinary arm’s day-to-day affairs. Mottley, an attorney at Banner & Witcoff whose one-year term as president ended in June, said that as the bar membership grows, bar leaders have a responsibility “to ensure accountability” for the budget.
Newly sworn-in bar President Thomas Williamson Jr., a senior counsel to Covington & Burling, said the changes are mostly aimed at large-dollar capital expenditures and multiyear contracts. For instance, he said that as the disciplinary arm plans for office renovations that he estimated could cost anywhere from several hundred thousand dollars to $1 million, “our view is it’s appropriate for the bar to review such a project.
“We would continue to be deferential to their autonomy and independence in making decisions about discipline,” Williamson said. “But we think we have a responsibility when it comes to expenditures, particularly when it comes to large amounts of money.”
The D.C. Court of Appeals has the final say. The board, through Executive Attorney Elizabeth Branda, declined to comment, but both sides will have an opportunity to weigh in as the court considers the bar’s proposal.
CONFLICT OF INTEREST
The majority of states and the District of Columbia have a mandatory bar, according to information provided by the American Bar Association Center for Professional Responsibility. The data show that of the 32 states and D.C. with a mandatory bar, about two-thirds exercised direct oversight of the attorney discipline system. In the remaining states and states with a voluntary bar, attorney discipline was administered and funded by the state’s highest court.
In Washington, the D.C. Court of Appeals oversees the rules governing attorney discipline, but the bar funds the disciplinary system.
The ABA’s model rules for lawyer disciplinary enforcement recommend that attorney discipline operate separately from the bar. “You don’t want elected bar officers, who have had to campaign for office…to have to regulate the people they solicited for votes,” said Myles Lynk, a former D.C. Bar president and chair of the ABA’s standing committee on professional discipline.
Lynk said that for bars that do oversee the attorney disciplinary system, the question is then how much day-to-day oversight the bar exercises. “If you control the purse strings of the disciplinary office, you can effectively influence how that office operates,” he said.
The Board on Professional Responsibility’s budget, which includes funding for the Office of Bar Counsel, makes up about 30 percent of the bar’s dues-funded budget. In the budget for the 2012-2013 fiscal year, the disciplinary system’s budget is $7.8 million.
The bar’s proposal didn’t offer specific reasons for the changes, except to say that the Board of Governors wanted to “ensure accountability for expenditures of Bar funds by the disciplinary system.” Williamson and Mottley declined to discuss individual past expenditures.
Williamson said bar leaders are still considering what the changes, if approved, would mean in practice. He said he expected the bar would still delegate much of the disciplinary system’s day-to-day financial operations to the Board on Professional Responsibility, but perhaps formalize the guidelines for seeking requests for proposals and pay closer attention to expenditures over time.
Under the proposed changes, he said, the bar couldn’t “unreasonably” diminish the Board on Professional Responsibility and bar counsel’s authority to carry out their core disciplinary functions. He added that in the event of a dispute, the proposed rules also state that either side can ask the appeals court to step in, as is already the case for disputes over the budget as a whole.
The board, in its June 1 letter, maintained that it had historically stuck to its budget, “absent extraordinary circumstances that are unlikely to recur.” They argued that the proposal “infuses the entire decisional process with a concern about satisfying those with control of the purse.” The board is made up of seven attorneys and two nonattorney members of the public nominated by bar leaders and appointed by the appeals court.
The board said the bar had already departed from the ABA’s recommendations by recently assuming responsibility for its information-technology support. The June 1 letter implied that this change created “friction” that would worsen with the new changes. “No crystal ball is needed to foresee that these disagreements would inevitably require more time and attention from the Court of Appeals, taxing the patience of the Chief Judge and any Associate Judges whom he chooses to involve,” they wrote.
Michael Frisch, a former senior assistant bar counsel who wrote an online column on June 22 calling the proposal “the most dangerous idea” in the bar’s history, said the proposed changes heightened the risk of future abuses. Frisch, a professor and ethics counsel at Georgetown University Law Center, said he could envision scenarios where bar leaders used the budget to hamstring attorney discipline cases “they may well not want prosecuted.”
Frisch also said he thought the bar should have sought comment from members before submitting the proposal to the court. “What got my attention is there’s no commentary here, and that, to me, is a marked departure from the way the bar has done business,” he said.
The bar announced the proposal on its Web site on June 25. Williamson said the bar asked for comment from the disciplinary arm, but didn’t give broader public notice because “from our vantage point, this is an internal governance issue that doesn’t directly impact or regulate the conduct of individual members.”
Lynk said that if the rules are approved, it could be possible for the bar to exercise its new authority in a responsible way. But he said he would like to see more details about why these changes are needed and which expenditures would need bar approval.
“When you’re dealing with financial issues, policy decisions often get made in the way in which you resolve your disputes over budgets and fiscal policy,” he said. “This does raise questions that need to be addressed. I do hope that there’s a request by the court of appeals for public comment.”
Contact Zoe Tillman at email@example.com.