Formal Disciplinary Proceedings

Formal Charges

Unless the complaint is dismissed or otherwise resolved by agreement of the parties, Disciplinary Counsel institutes more formal proceedings by filing a petition under oath with the Board's Executive Attorney. Like other types of lawsuits, this petition must be sufficiently clear and specific to inform the attorney of the alleged misconduct. Unlike the investigation phase which can take an inordinately long time, the filing of a petition initiates a much faster process. In fact, even before the attorney has filed an answer to the petition, the Board's Executive Attorney will schedule a hearing and assign the matter to a Hearing Committee to preside over discovery and an evidentiary hearing.

Discovery

After the petition is filed, the responding attorney is entitled to review all non-privileged material in the files of Disciplinary Counsel regarding the pending charges. The attorney may also request discovery from witnesses by taking depositions or by issuing subpoenas for relevant documents. The right to such discovery is not automatic. Lawyers must file written motions which demonstrate a "compelling need for the additional discovery in the preparation of respondent's defense and that such discovery will not be an undue burden on the complainant or other persons."

Hearing Committee Proceedings

Unlike the confidential "peer review meeting" in Maryland, Hearing Committee proceedings are open to the public. This is an adversarial trial before a three-member panel, consisting of two attorneys (one of whom will serve as the chairperson) and a layperson. Each side may call witnesses, introduce documents, and object to the introduction of his adversary's evidence. Although the chairperson may consult the rules of evidence for guidance, rules of court practice, procedure, pleading, or evidence are not binding at this hearing. In general, evidence that is "relevant, not privileged, and not merely cumulative shall be
received, and the Hearing Committee shall determine the weight and significance to be accorded all items of evidence upon which it relies."

Within 120 days after finishing this hearing, the Committee must report its findings and recommendation to the Board on Professional Responsibility, together with a record of its proceedings, a transcript of the hearing, and any briefs filed by the parties.

Proceedings before the Board on Professional Responsibility

After getting the Committee's report, either side may take exception to its findings and recommendation. If no exceptions are filed, the Board will decide the case on the basis of the Hearing Committee record. Otherwise, it will review briefs by each party and entertain oral argument. After that, the Board may adopt the Committee's recommendation, modify it, remand the case to the Committee for further proceedings, direct Disciplinary Counsel to issue an informal admonition, or dismiss the petition altogether. Unless the Board dismisses the petition or remands the case, or unless the matter is resolved by a reprimand or a direction for an informal admonition, the Board must prepare its own report of findings and recommendations to the Court of Appeals of the District of Columbia.

D.C. Court of Appeals Proceedings

Once the Board releases its report, the parties only have 20 days to file exceptions with the Court of Appeals. If not, the Court will simply adopt the Board's recommendation and issue an order to that effect.

In ruling upon any exceptions, the Court gives great deference toward the Board's findings and recommendation. "In determining the appropriate order, the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." Unlike the Maryland Court of Appeals, the D.C. Court of Appeals does not issue published opinions in every disciplinary case and its unpublished decisions are of limited value.

Discouraging lawyers from extending their careers by taking exception to the Board's recommendation, the Court may suspend the attorney even before rendering a final decision. If the Board recommends the disbarment or suspension of a lawyer, the Court will order that attorney to show cause within 30 days as to why it should not enter an order of suspension pending final action on the Board's recommendation. To avoid such a suspension, the attorney must demonstrate a substantial likelihood of success on her exceptions the Board's report.

Ultimately, the Court of Appeals may resolve the case by ordering the respondent attorney’s disbarment, by suspending his privilege to practice law indefinitely or for a specified period, by censuring the attorney, by placing an incapacitated attorney on inactive status, by dismissing the case or by remanding it for further proceedings. See List of Sanctions & Dismissals in D.C. Bar Grievance Cases.