In Re Stanton

¶1separate statement, dissenting:

¶2This case illustrates graphically the concept that law is a specialized language. Mr. Stanton has made impressive progress in the mastery of that language. As a practical matter, no one having evaluated Mr. Stanton’s performance in this present appeal (during which he performed the difficult feat of representing himself in a petition for reinstatement to the Bar) could seriously doubt his competence as a lawyer. Indeed, the issues surfacing as a result of his successive appeals, the conclusion of the present division’s majority that we are bound by the principle of res judi-cata, coupled with the diverse reasoning of the Board and the Hearing Committee, lead me to suggest that the question of Mr. *428Stanton’s reinstatement may indeed necessitate further language, coming not only from petitioner, but from this court. Without extensive treatment, I will express my concerns.

¶31. At oral argument, Bar Counsel expressed an appreciation for the guidance of the Roundtree1 criteria in consideration of requests for reinstatement. Petitioner agreed that Roundtree was indeed instructive. Petitioner recited factors2 which he thought to be relevant to each criterion, but suggested, as did the Hearing Committee,3 the possibility that rigid application of such criteria could result in abuse. With respect to the second criterion (the criterion that a petitioner making a request for reinstatement must recognize the seriousness of his misconduct), I read Mr. Stanton as saying that where the so-called misconduct involves an unresolved question on a litigated issue, the criterion should not require an applicant in every case to express insincere remorse and contrition, but only to represent that “I have given this thoughtful consideration in light of my disciplinary experience” [and hopefully, “I will not repeat this conduct once the question is resolved”]. I find little reason to disagree with petitioner in this respect (nor would, I hope, my colleagues in the final analysis). However, petitioner, in seeking to maintain his position that he has done nothing wrong, has not only led Bar Counsel to repeat, in understandable frustration, that petitioner’s “attitude is still the same,” but has been extremely successful in focusing the attention of this court on the merits and the pitfalls of the plea bargaining process to the exclusion of other issues. Thus, during oral argument petitioner was closely questioned as to what he would do in the future with respect to (1) negotiating a plea with the government, (2) advising his client with respect thereto, (3) assisting his client in making a decision, and (4) “implementing” that decision. His representations, essentially those recited before the Hearing Committee, were that he would negotiate with the government to get the best possible plea, would act as an “advis- or” at all times but not an “advocate,” would assist his client in deciding to waive trial but not in “implementing” the waiver of trial. He told the court that “[it is the] accused [who must] accept the consequences of their decisions.” See also the colloquy recited in In re Stanton, 532 A.2d 95, 99 (D.C.1987) (Stanton III) (Mack, J., concurring).

¶4Therefore, it is not remarkable that the Hearing Committee recommended reinstatement. It did not simply repeat in essence the very point made by my concurring opinion in Stanton III, but made its own assessment, going one step further, as follows:

Petitioner states he would not personally articulate the guilty plea of a client. Nor would petitioner personally take any action to convince a judge of the voluntariness of a guilty plea of a client during a Rule 11(d) inquiry. He would, however, act as an advisor to the client as this inquiry is proceeding.

While one may disagree with petitioner’s view of his role in this context, we do not find his position as he has now framed it to be irresponsible, necessarily *429inconsistent with his obligations under the disciplinary rules, or in conflict with the rules of criminal procedure.

¶5[Report and Recommendations of the Hearing Committee at 6.]

¶6Although my concurring opinion did not speak to the question of whether a lawyer personally should seek to convince a judge of the voluntariness of a guilty plea, I cannot, in retrospect, believe that it is required or even uniformly desirable. Over the years “plea-bargaining” has become just that — “bargaining.” The extent to which it has become part and parcel of the criminal justice system raises cause for scrutiny. We have forgotten that in the not too distant past, agreements between prosecutors and defendants were cause for serious concern. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Indeed it was not until 1970 that the United States Supreme Court began to talk of the “mutuality of advantage” (to the State and to the defendant) flowing from the entry of a guilty plea (Brady v. United States, 397 U.S. 742, 752-53, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970)) and the following year to recognize that “ ‘plea bargaining’ is an essential component of the administration of justice” which if “[pjroperly administered ... is to be encouraged.” Santobello v. United States, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).

¶7Proper administration of the bargaining process requires preservation of a record in compliance with the dictates of Rule 11 of the Federal Rules of Criminal Procedure (or rather our corresponding Super.Ct. Crim.R. 11). Rule 11 does not require a lawyer to vouch for his client’s credibility. Indeed the very purpose of the Rule 11 inquiry is to assure that an accused is voluntarily surrendering a panapoly of constitutional rights. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Central to the plea and foundation for entering judgment is the defendant’s admission in open court that he committed the acts charged in the indictment (Brady v. United States, supra, 397 U.S. at 748, 90 S.Ct. at 1468) and that he is voluntarily offering the plea because he is indeed guilty. In this era of multiple charges, pretrial detention, overburdened courts, mandatory sentencing, and crowded prisons, a defendant may be coerced into entering a plea of guilty for many reasons not associated with guilt. A defense lawyer, who as a matter of routine personally speaks to convince the court of the volun-tariness of a plea of guilty, himself walks a tight rope on the periphery of ethical conduct. The issue in the final analysis may well be whether the request of his client is lawful or rational.

¶8Thus, Mr. Stanton’s representations leave room for honest disagreement as to whether his future conduct would pose the threat of disciplinary violations. I suggest, however (as did the Board), that an important consideration is not only what the disciplined lawyer would do in the future (an imprecise prediction at best) but what he has done in the past. The truth of the matter is that this esoteric exercise has drawn attention away from the first criterion of the Roundtree case — “the nature and circumstances” of the prior misconduct.

¶92. Petitioner was disciplined for neglect and for intentionally failing to seek his client’s lawful objective. See In re Stanton, 470 A.2d 272 (D.C.1983) (Stanton I), and In re Stanton, 470 A.2d 281 (D.C.1983) (Stanton II), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 821 (1984). In the factual context in which these violations arose there is a basic overlap; it is clear that there is more at issue than petitioner’s attitude toward plea bargaining or his understanding of his role as an “advocate” in that process. In failing to communicate with clients, in failing to investigate charges, in failing to file bond review motions, in failing to honor his clients’ rational and lawful requests, whether done intentionally as not being necessary or in the best interests of his clients, or unintentionally as a result of negligence, petitioner has done a disservice to his clients. By petitioner’s own account, one of the factors to be balanced in assessing a record of prior discipline for reinstatement purposes *430is the question of “harm” or “prejudice” to a client. Such prejudice is apparent from the recitation of petitioner’s conduct described in prior decisions of this court, incorporating the opinions of the Board on Professional Responsibility. Apart from overt prejudice, the psychological prejudice that may result has been eloquently expressed. In pointing out the special duty that a lawyer owes to an indigent and incarcerated client, the Board has noted:

The one person in the complex criminal justice system who is supposed to be unreservedly devoted to the interests of such a client is the appointed lawyer. When that lawyer ignores the views of the client, the client is left completely without assistance in a world that is then unrelievedly hostile.

¶10See Stanton II, supra, 470 A.2d at 287.

¶11Unless petitioner is prepared not only to advise his clients but to carry out their lawful and rational requests, he will be denying to the accused the very right that purportedly he has risked his career to fight for — the right of the accused to make a voluntary decision and thus to accept the consequences of that decision. The Hearing Committee, in recommending conditional reinstatement with a one year monitored probationary period, has told us that petitioner has said under oath that he is so prepared.4 In light of this representation, and because our differences are drawing uncomfortably close to an exercise in semantics, I would vote for the disposition recommended by the Hearing Committee. At the same time, I would remind Mr. Stanton that, where there is no question of professional ethics involved, such question does arise when counsel ignores the legitimate requests of an informed client, poor or rich. I would add that, under appropriate circumstances, it is neither difficult nor diminishing to say “I was wrong.”