If you thought that the last entry vented some spleen, you haven't seen anything yet. I'm really, really offended by the implications of an article in this morning's New York Times that demonstrates quite clearly that the New York bar disciplinary authorities are not asleep at the switch; they've bloody well disconnected the power source.
Those of us who are veterans dread VA hospitals. They have a well-earned reputation for substandard medical care, and most particularly for continuing to employ physicians after repeated instances of malpractice with little if any discipline, let alone suspension or removal of medical licenses. The medical profession, however, while it does have mandatory reporting, gives government agencies a free pass on those requirements: it does not discipline government employees for failure to report misconduct. The legal profession is worse, because our mandatory reporting requirements (and even permissive reporting requirements) are much stiffer—at least on their face.
A review of appellate decisions showed that judges had cited prosecutors for misconduct in 72 cases over a 21-year period, ranging from a prosecutor who invoked the Bible in closing arguments to a prosecutor who knowingly let the sole witness in a murder case lie to the jury, said the lawyer, Joel B. Rudin. While the misconduct was often egregious and contributed to the reversal of 62 of the cases, only one prosecutor involved was disciplined by the district attorney's office, said Mr. Rudin, who examined personnel records that the city turned over to him. All the other prosecutors continued to get merit raises and bonuses, according to the records. Officials in the district attorney's office denied that prosecutorial misconduct was frequent or went unpunished. They said that in the 72 cases that Mr. Rudin highlighted, sanctions might have been issued that were not reflected in the prosecutors' personnel records.
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Others in the legal profession said that misconduct was sometimes a necessary part of the learning curve. "Everybody makes mistakes—if we have a zero-tolerance policy in the legal profession, everyone is going to get disbarred," said Joshua K. Marquis, district attorney of Astoria, Ore., and a member of the board of directors of the National District Attorneys Association.
Andrea Elliott, "Prosecutors Not Penalized, Lawyer Says" (17 Dec 03) (fake paragraphing removed for clarity). The point is that personnel records are not the only place that should show records of misconduct and sanctions—keeping in mind that the 62 cases in which the misconduct was serious enough to require reversal are only the tip of the iceberg, given the standards for reversal of a criminal conviction due to prosecutorial misconduct—and that Mr. Marquis is an ignorant git if he wants to characterize blatant misconduct as a "mistake." Further, even if it is a "mistake," it demonstrates a serious problem with attorney preparation for practice that requires immediate attention from the profession, both prior to admission to the bar and in appropriate supervision of young attorneys. (For what it's worth, most attorneys are shitty managers and supervisors, and wouldn't know effective mentoring and supervision if it slid up their tails and bit them on the pectoral fins.)
Whether Mr. Marquis's statement itself (presuming it was accurately quoted) might implicate Model Rule of Professional Conduct 8.3 is a question for another time. Defending the profession against what is essentially a charge that it is refusing to regulate itself is not just stupid, even if all too typical, in the face of this kind of evidence, but just might call said defender's fitness to practice law into some question. This is not a accusation of any particular attorney; it is an accusation that the disciplinary authorities are not just wearing no clothes—they are naked, painted purple, dancing on top of a harpsichord, and singing "Happy Days Are Here Again." Off key.