No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia
![handle is hein.journals/geojlege18 and id is 333 raw text is: No Stone Left Unturned: The Failure of Attorney
Self-Regulation in the District of Columbia
MICHAEL S. FRISCH*
Can lawyers be trusted to police themselves? Self-governance is a cherished
and well-entrenched prerogative of the legal profession. In the main, lawyers
promulgate the ethical rules that govern their conduct in connection both with the
practice of law and their personal lives. When questions are raised concerning the
application of these ethical standards, lawyers dominate the decisions (i) whether
or not to file charges, (ii) how disputed facts should be resolved, and (iii) with
respect to the appropriate sanction. The preamble to the American Bar
Association (ABA) Model Rules of Professional Conduct posits that self-
regulation, with ultimate regulatory authority vested in the courts, is necessary to
maintain the legal profession's independence from government domination as
abuse of legal authority is more readily challenged by a profession whose
members are not dependent on government for the right to practice.1
The ABA's concern about governmental, as opposed to judicial, authority over
the legal profession may be well-founded. When there is an issue of an ethical
violation, courts adopt one of several models to determine if there has been
misconduct and to impose sanction: sitting judges, specialized administrative law
judges, volunteers, or a combination of the three. Serious concerns about
self-regulation exist when courts delegate substantial authority for fact-finding
and sanction decision to volunteer lawyers rather than independent judicial or
quasi-judicial officers. Volunteer systems use lawyers and laypersons to consider
ethical violations, with the lawyers always having the majority vote. The District
of Columbia has operated under such a volunteer system for over thirty years.
* B.A., Case Western Reserve University, 1971; J.D., Georgetown University Law Center, 1974. Ethics
Counsel and Adjunct Professor of Law, Georgetown University Law Center; Assistant and Senior Assistant Bar
Counsel, District of Columbia Office of Bar Counsel, 1984-2001. This Article is dedicated to my former
colleagues at the Office of Bar Counsel, who labor to serve the public interest and promote the integrity of the
legal profession. I wish to recognize the public-spirited work of many of the lawyers and laypersons who have
devoted their efforts to the disciplinary system. I also wish to acknowledge my debt of gratitude to the late
Professor Samuel Dash, who inspired generations of students to seek social justice. Sam personified the ideal of
a lawyer as public servant and defender of freedom. He was also a beloved mentor and colleague.
The reader should be aware that I was the disciplinary prosecutor of the cases discussed in Section III with the
exception of the Velasquez case, as well as for portions of the Hutchinson, Miller, and Romansky cases and
throughout the Bewig case discussed in Section VIII. I also had a minor role in the early stages of the Midlen
case discussed in Section V.
All authorities cited in this Article are on file with the author.
1. MODEL RULES OF PROFESSIONAL CONDUCT pmbl. [11] (2003) [hereinafter MODEL RULES].](ViewImageLocal?handle=hein.journals/geojlege18&div=18&collection=journals&method=preview&ext=.png&size=3)
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No Stone Left Unturned: The Failure of Attorney Self-Regulation in the District of Columbia
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