A lawyer who got kicked out of the D.C. bar for misusing witness vouchers as an assistant U.S. attorney regained his right to practice law in the nation’s capital June 1 through a summary process ( In re Howes , D.C., No. 17-BG-328, 2017 BL 183604, 6/1/17 ).
When the D.C. Court of Appeals disbarred G. Paul Howes five years ago, it excoriated him for “flagrant, repeated dishonesty.” But Howes was reinstated through a brief per curiam order that simply recites disciplinary counsel’s finding that he had demonstrated his fitness to resume the practice of law.
The ex-AUSA’s reinstatement may buoy other disbarred lawyers who hope to get back to practicing law at some point. His case signals that disciplinary redemption is sometimes possible even for lawyers who committed very serious misconduct, and it showcases a no-hearing process that’s available in D.C. when disciplinary counsel doesn’t contest a lawyer’s reinstatement petition.
Ethics afficionados may recall that Howes received a public censure in New Mexico two decades ago for inappropriate contacts with a represented defendant, in a disagreement over the application of state ethics rules to federal prosecutors.
But later Howes got into much worse trouble for his actions as an AUSA in D.C. He became the first-ever federal prosecutor to be disbarred there when the D.C. Court of Appeals stripped his license in 2012 for misconduct in handling gang- and drug-related homicide cases from 1993 to 1995.
The opinion disbarring Howes lambasted him for handing thousands of dollars of witness vouchers to ineligible people and actively concealing the improper payments from defendants and the courts, which eventually led to substantial sentence reductions for some convicted felons. 28 Law. Man. Prof. Conduct 157, 3/14/12 . The court subsequently made the disbarment retroactive to his interim suspension in 2010.
As to the other jurisdictions where Howes had a law license, New Mexico disbarred him as reciprocal discipline, and California imposed a five-year suspension that was stayed on conditions, including three years of actual suspension and probation.
The extensive materials that Howes submitted along with his reinstatement petition included numerous glowing character reference letters, particularly about his work in Enron securities litigation after leaving his prosecutor job in May 1995.
The D.C. Office of Disciplinary Counsel didn’t contest the former AUSA’s petition. Its report to the court of appeals explained why it found Howes met the five-factor test that’s set out in D.C. case law for reinstatement.
The court of appeals decided 2-1 to grant Howes’s reinstatement petition, with Judges Phyllis D. Thompson and Stephen Glickman in the majority.
Judge Frank Q. Nebeker expressed strong disagreement in a footnote that states: “Mr. Howes violated a most sacred code as an Assistant United States Attorney for which, in my view, there is no redemption. The gravamina of his misconduct should be held as an example to all AUSAs that what he did will, for his lifetime, be a bar to reinstatement. For a former AUSA this would not be excessive. It would be justice.”
Howes got his D.C. license back without a hearing through a summary process that kicks in when the D.C. Office of Disciplinary Counsel decides not to contest a petition for reinstatement.
The special procedure is set out in Rule 9.6 of the Board of Professional Responsibility’s Board Rules and Rule XI(16)(e) of the D.C. Court of Appeals Rules Governing the District of Columbia Bar.
Board Rule 9.6 spell out steps for disciplinary counsel to follow when the office elects not to contest a petition for reinstatement. The rule calls for the office to file with the court of appeals, as soon as practicable, the reinstatement petition and the supporting materials submitted by the lawyer, along with a report stating why disciplinary counsel is satisfied the attorney meets the criteria for reinstatement.
D.C. Rule XI(16)(e) sets out how the court of appeals handles uncontested reinstatement petitions. It says the court may consider the petition on the record and the parties’ submissions, and may grant the petition, deny it, or request a recommendation from the professional responsibility board concerning reinstatement.
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Full text of reinstatement order is at http://src.bna.com/pu4.Disciplinary counsel's report and Howes's reinstatement petition can be viewed at http://src.bna.com/pA4.The reinstatement questionnaire that Howes completed for his petition is available at http://src.bna.com/pBg.Character letters that Howes submitted can be viewed at http://src.bna.com/pBe and http://src.bna.com/pBf.
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