Cases Against Accused Attorneys Drag On
Discipline System Criticized as Being Too Slow and Padded With Protections
By Lena H. Sun
Washington Post Staff Writer
Monday, June 16, 2003; Page A12
Wayward probate lawyers are rarely punished by the District's attorney discipline system, even when they have broken the law, violated ethical standards or failed their clients. When it does punish, the system is inconsistent and slow, giving accused lawyers so many protections that cases can drag on for as long as nine years, according to court records and interviews.
"You get more due process in the disciplinary system than a first-degree murder defendant," said Mark Foster, a former chairman of the Board on Professional Responsibility, which is appointed by the D.C. Court of Appeals. "The system is created by lawyers for lawyers."
Prosecutors recommended in 2000 that Eugene Austin be disbarred after they said he duped an elderly woman out of nearly $27,000. A hearing committee agreed with the disbarment. Austin did not object by the deadline. But the board -- seven lawyers and two non-lawyers who rule on attorney misconduct -- refused to disbar him. Instead, it recommended an 18-month suspension.
Stunned, the D.C. Office of Bar Counsel, which prosecutes ethical violations, appealed.
"If . . . clear and convincing evidence that a lawyer engaged in fraudulent and predatory acts directed at an elderly, uneducated and vulnerable client is not enough to place a lawyer's moral fitness to practice law at issue, Bar Counsel is at a loss to understand what would," wrote Assistant Bar Counsel Julia Porter in her appeal this past October, now pending before the D.C. Court of Appeals.
Austin said he thought he was acting lawfully and has asked the appeals court for lenient treatment.
Attorney discipline systems nationwide have long been criticized for being too slow, too secretive and too insular. Last year, a D.C.-based legal reform advocacy group, HALT, surveyed disciplinary systems nationwide and found a "wide pattern of delay, secrecy and toothless sanctions that amount to a national disgrace," according to its report. Thirty-nine jurisdictions received grades below C, including the District, Maryland and Virginia.
Last year, the D.C. Office of Bar Counsel received 1,393 complaints about attorneys in all types of cases. Typically, more than half are dismissed without a formal investigation, officials said, because they do not allege ethical violations. The office investigated 41 percent of the complaints last year, or 575 cases. Of those, 41 were probate cases.
Among those formally investigated in an average year, fewer than 10 percent will go through the entire disciplinary process, with charges, referral to a hearing committee and review by the board. Discipline ranges from an informal letter admonishing the lawyer to disbarment.
Over the past decade, 12 probate attorneys have been disbarred.
Carrie Fair, who was appointed to handle an estate and distribute about $44,000 among 13 heirs, was recommended for disbarment in 1999. Disciplinary documents indicate that she paid herself $6,600 in fees from the estate without seeking court permission.
It was not until nearly 11 years after her 1987 appointment that Fair distributed the funds. She later told a hearing committee that bureaucratic delays in the probate court were partly to blame. The heirs, mostly elderly and some in dire financial need, wrote Fair more than 30 letters asking about their money.
"I need oil to burn & a top on my house & I get nothing but a little S.S. check & I would surly thank you if you get the checks out this month because I am in need badly," wrote one elderly cousin, Marie Bryant of Ahoskie, N.C. She and several other heirs died before receiving any money.
One business day before her disciplinary hearing in 1998, Fair sent out the first checks -- for $3,800 each.
Fair did not respond to telephone calls or a letter delivered to her Silver Spring home.
The hearing committee concluded that she had not misappropriated money, noting it was accepted at that time for attorneys to pay themselves and request permission later. It recommended that she be suspended for 60 days. The disciplinary board, however, found that she had misappropriated funds and urged that she be disbarred. But the D.C. Court of Appeals rejected disbarment, instead suspending her for 14 months. The court said the D.C. Council had later eliminated the need for trustees to get prior court approval to pay themselves.
Under court rules, the disciplinary board has five weeks to hold a hearing, but lawyers say it often takes as long as three months. The hearing committee has 60 days to issue a report, but that can take up to two years. Of 24 cases awaiting hearing committee reports this spring, 14 were overdue, the board said.
"The disciplinary system is very slow to work," said Leonard Becker, a former bar counsel. "The delays don't do anybody any good -- not the lawyer nor the complaining party nor the court system."
Board Chairman Joanne Doddy Fort blamed the delays on understaffing, lack of resources and a system that relies on lawyers to volunteer their time.
It took nearly two years for a hearing committee to issue its report on lawyer Eugene Austin.
His client, Lettie Saunders, was a 73-year-old retired cleaning woman with a fifth-grade education, living on an annual Social Security income of less than $6,000. She hired Austin to help her get reimbursed $26,709 for payments she had made on her late brother's mortgage.
Austin, whose law practice was failing, knew Saunders had limited assets because he persuaded her to take out a second loan on her home and had filled out the financial papers. Then, over a two-year period, he took most of her life savings through 10 "loans" he sought from her, totaling about $27,000, hearing committee records show.
In 1997, before closing his law practice and moving to Georgia, Austin repaid Saunders just $1,700. The D.C. Bar's Client Security Fund later reimbursed Saunders about $29,000.
"He kind of took advantage of me because I told him I wasn't educated so I would have to trust him to do right by me," Saunders said. "I don't think he should be able to do things and get away with it."
Austin said in a telephone interview that he had planned to repay her but didn't have the cash and had to care for ailing relatives. He borrowed the money, he said, "in the mistaken belief that it was legit."
The board said he engaged in "morally reprehensible conduct" and "enriched himself at his client's expense." But it overruled the hearing committee, which wanted Austin disbarred, saying that because he had intended to repay Saunders, there wasn't enough evidence to disbar him. It also pointed out that the misconduct involved "the mistreatment of a single client by an experienced attorney with no prior history of discipline."
In a blistering dissent, board member Paul Knight, a former federal prosecutor, said, "I see no reason why the Board should bestow on [Austin] the gift of an 18-month suspension when [Austin] himself does not object to his disbarment."
The case is pending before the appeals court.
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