Public Enemy, Flavor Flav, and a very strange disciplinary case.

In 1990, Public Enemy released Fear of a Black Planet.  I doubt anyone ever expected that, 29 years later, two singles from the album would play somewhat prominent roles in a blog post on the nuances of the attorney discipline process.

Image result for public enemy images

One of the songs is “Can’t Do Nuttin’ For Ya Man.”  It includes the lyrics:

“It was you that chose your doom
You built the maze you can’t get through
I tried to help you all I can
Now I can’t do nuttin’ for you man.”

Last week, the District of Columbia Court of Appeals Board on Professional Responsibility said pretty much exactly that to a lawyer.  Strangely, the case was one in which the lawyer not only asked to be disbarred, but invoked Public Enemy (and Flavor Flav) in making the request.  More on that in a moment.

I first learned of the story via Professor Bernabe’s blog.  It was also reported by the ABA Journal, the Legal Profession Blog, and Above the Law.  Here are the opening sentences from the Board’s Report and Recommendation:

  • “In this extraordinary matter, Disciplinary Counsel seeks to have Respondent
    disbarred. Respondent has also unequivocally, and colorfully, sought to be disbarred.”

Intuition likely tells you “end of story.”  Not so fast my friends.

In 2017, D.C.’s Office of Disciplinary Counsel (“ODC”) served the respondent with four separate complaints.  The respondent did not answer, appear in any of the subsequent proceedings, or otherwise present a defense.  Rather, in March 2018, the respondent sent the following email to the disciplinary prosecutor:

“Please don’t kill trees, waste taxpayer resources and ODC personnel on
me.
ODC has no credibility or legitimacy to me. Or the drivel you generate.
You are simply dishonest lawyers who do nothing to regulate dishonest
lawyers.
And racists to boot.
Rather than wasting time, money, and paper on your sophistries, please
disbar me.
Disbarment by ODC would be an honor.
To date, aside from competing in the triathlon world championships,
my greatest honors are my PhD from UCLA and my law degree from
Boalt.
But a disbarment letter from ODC will be framed and go up right
alongside those diplomas.
Please do me the honor of disbarring me.
I will be so very very proud.”

Nevertheless, as required by D.C.’s rules of disciplinary procedure, ODC puts on its case.

Now, you might ask, “why?”  Well, “because.”

Like many jurisdictions, a lawyer under investigation by D.C. disciplinary authorities cannot simply resign their license.  Rather, there are specific steps that must be followed in order to consent to disbarment.

Vermont is similar.  Rule 19 of Administrative Order 9 sets out the process by which a lawyer under disciplinary investigation can consent to disbarment.  While the issue has never been litigated here, I doubt that an email to Disciplinary Counsel asking for “the honor” of disbarment would be deemed to comply with Rule 19.

Which brings me back to the D.C. case.

As I mentioned, ODC puts on its case.  It took four days and resulted in a hearing committee issuing a 252-page decision in which it recommend a 3-year suspension of the respondent’s law license.  ODC appealed, asking the Board to disbar the respondent.

In July, the Board ordered the respondent to show cause why it “should not recommend . . . that [he] be disbarred forthwith, based on his consent to be disbarred, without further consideration of the proceedings against him.”  ODC responded that the respondent should be “disbarred on the merits, and not on the basis of his email alone.”  In other words, ODC argued that the respondent had not complied with the D.C. rule on consent disbarment, but should be disbarred based on the conduct that was the subject of the underlying disciplinary charges.

The respondent did not respond to the Show Cause order.  Per the Report & Recommendation:

  • “Instead, he sent a mailing to the Office of Disciplinary Counsel. In that mailing, he enclosed a number of copies of a color image of Flavor Flav from the hip-hop group Public Enemy with the text ‘ODC is a joke’ in all caps at the top of the page in what one can only assume was a reference to Public Enemy’s 1990 song ‘911 is a joke.'”

And there you have it: this post’s second reference to a song from Fear of a Black Planet.

The Board obliged, essentially concluding that while the committee hadn’t recommended disbarment, the respondent had chosen his own doom.  That is, “in light of the Respondent’s unambiguous expression that he seeks to be disbarred, and his response to the Show Cause Order, we conclude that his response is the functional equivalent of meeting the requirements of” D.C.’s rule on consent disbarment.  As such, the Board recommended that the D.C. Court of Appeal “enter an order disbarring Respondent on consent, forthwith and without further consideration of the evidence in the case.”

Two Board members dissented.  While conceding that the respondent’s conduct was “inexplicable,” they argued that his email did not comply with the rule on disbarment by consent.  As such, they dissented “from the Board’s decision to decline to provide the Court with a report and recommendation based on the Board’s review of the Hearing Committee’s findings and recommendations.”

I’m interested in how the Court responds.  Having prosecuted more than one case in which a lawyer failed to respond or defend, I understand the desire to cut to the chase.  But rules are rules and, unless or until it’s changed, the process is the process.  Thus, I think I’d have found myself in the dissent.

I’ll track this and update this post once the Court rules.

Image result for public enemy rock hall of fame