In what marks the latest twist in the long-running disciplinary proceeding against former federal prosecutor G. Paul Howes, the nine-member Board of Professional Responsibility issued tonight a split recommendation on what sanctions Howes should receive for his past alleged misconduct.
In the board’s report and recommendation to the D.C. Court of Appeals, four members recommended disbarment for the former assistant U.S. attorney for the District of Columbia, three recommended a three-year suspension of his license, and two recommended a one-year suspension.
Because none of the recommendations was in the majority, the final decision on Howes’ sanction will be up to the D.C. Court of Appeals. Given that the most miniumum recommended punishment was a one-year suspension, an ethics lawyer said the appeals court could suspend Howes’ license before making a final decision.
Howes, who served as a federal prosecutor in Washington from 1984 until 1995, handled some of the District’s most high-profile drug, homicide, and gang cases in D.C.’s federal and local courts, including the Card/Moore and Newton Street Crew cases. The investigations into his alleged misconduct has spanned more than a decade and involved two disciplinary agencies. In 1998, the Justice Department’s Office of Professional Responsibility issued a report that determined Howes authorized more than $140,000 in payments to 132 witnesses, including individuals who were not entitled to receive them. Howes was also accused of intentionally failing to disclose the use and misuse of the vouchers to defense counsel.
Howes’ alleged misconduct resulted in reduced prison sentences for at least nine defendants, many of whom were serving life sentences.
In a 2007 disciplinary hearing before a committee of the Board of Professional Responsibility, Howes admitted to six ethical violations, including false statement of material fact to a tribunal, failing to timely disclose evidence that tended to negate the guilt of a defendant, and engaging in conduct that interfered with the administration of justice.
On two other charges--prohibited inducement to a witness and committing a criminal act that reflects adversely on a lawyer's honesty--Howes argued that he did no such thing. The hearing committee found in August that the evidence against Howes did not support the inducement charge but that his actions did amount to false statements, which violates federal law.
The hearing committee ultimately split on its recommendation for sanctions with one arguing for disbarment, another arguing for a two-year suspension, and a third recusing.
Howes, who now works for Robbins Geller Rudman & Dowd in San Diego, Calif., has argued that despite his admitted misconduct, there were mitigating factors that ought to be considered. The OPR report found that there was no evidence Howes personally benefited from the use of vouchers, that no witness changed his or her testimony as a result of the vouchers, and that Howes was “undoubtedly” using vouchers to advance the interest of the prosecution.
Howes has also argued that because of delays in the disciplinary proceedings against him, and because of his “ethical and honest practice for the past 14 years,” he deserves leniency.
According to the board’s 87-page report and recommendation to the D.C. Court of Appeals, Howes conceded that “under ordinary circumstances and taking into consideration all the facts and circumstances and all the violations stipulated to,” a three- to six-month suspension “may be appropriate.” He argued that once the mitigating factors were taken into consideration he should receive a 30-day suspension without having to show fitness upon reinstatement.
That argument found little traction among the board’s members, but even then they could not agree on what sanction he should actually receive.
The report, which is signed by its chair Charles Willoughby, inspector general for the District of Columbia, said, “The board unanimously agrees with the Hearing Committee’s findings of fact and conclusions of law and we have adopted them with some exceptions. . . . There is no agreement by the Board regarding the appropriate sanction.”
Deborah Jeffrey, a Zuckerman Spaeder partner; Ernestine Coghill-Howard of the Substance Abuse & Mental Health Services Administration; and Russell Smith III of the Office of the U.S.Trade Representative, joined a statement in which they recommended disbarment for Howes to “express the condemnation that [Howes’] conduct merits and to deter others from similar misconduct.”
In a separate statement, Theodore Frank, an Arnold & Porter senior counsel, also recommended disbarment.
Ray Bolze, a Howrey partner and the board’s vice chair, drafted a statement that was joined by Willoughby and Jean Kapp a non-lawyer member of the board. He recommended a three-year suspension without having to show fitness upon reinstatement because, “In light of the unchallenged array of testaments by fellow attorneys, and two judges as to [Howes’] unblemished law practice since leaving the USAO over ten years ago, we find that Bar Counsel has failed to establish by clear and convincing evidence that there is a serious doubt regarding [Howes’] fitness to practice after the expiration of the suspension.”
James Mercurio, a Washington-based solo practitioner, and Carmen Cintron, an administrative law judge at the Federal Energy Regulatory Commission, recommended a one-year suspension because, “No one has suggested that the funds expended through the vouchers [Howes] signed were not prudently and efficiently directed toward the achievement of the highly important public goals that [Howes] was pursuing during the Card/Moore and Newton Street Crew cases” and that Howes’ conduct did not warrant a “career ending sanction.”
D.C. bar counsel Wallace "Gene" Shipp Jr. declined to comment.
In a statement, Howes’ attorney Paul Knight of Nossaman said, “I intend to read this Report and Recommendation carefully and make a decision within the next 20 days as to the next appropriate step for Mr. Howes.”
Howes did not return calls for additional comment.