In re Boma O. Allison, No. 08-0705 (Jefferson, C.J.) (DocketDB)

The lawyer in this disciplinary appeal appeared before a six-member hearing panel. Only four members could attend the hearing itself — three of whom were lawyers and one a member of the general public.

The lawyer contends on appeal that this group of four, although a majority of the possible six members of the panel, did not constitute a proper quorum under the statute. That’s because the statute says “[a] quorum must include at least one public member for every two attorney members present and consists of a majority of the membership of the panel.” The lawyer’s argument was that a panel with three attorney members would have to be counterbalanced by at least two members of the general public. Otherwise, the argument goes, the ratio would be out of line with that required by the statute.

The Court concluded that this four-member panel was fine:

Allison concedes that a literal application of her argument would require a minimum (and impossible) 1.5 public members to counter the three lawyers. If an exact one-third to two-thirds ratio of public members to attorneys were required, a quorum could be achieved only if the panel were evenly divisible by three. Allison’s proposed solution to this mathematical conundrum — to increase the ratio of public members to attorney members, either by including two public members if there are three attorney members, or by removing one of the attorney members for a one-to-one public member to attorney ratio — finds no support in the rule.

The Court’s holding was, in essence, that you round down rather than up when determining how many public members must be on the panel.

Whether you round down or up depends, I would think, on whether the statute is better served by having larger panels (closer to the size of the whole body) or by adhering to certain ratios (which might require smaller panels).

The Court found a way to resolve this using just the text of the statute, without focus on the Legislature’s possible reasons for specifying the composition of a panel. (( The Court notes that the statute describes the formula as requiring one public member “for every two attorney members present.” The Court thus talked about having one public member for each “set[] of two” attorneys on the panel.

Thus, if there are four attorney members (two sets of two) a quorum would require two public members. If there were six lawyers, three public members would be required. But for five lawyers, two public members is adequate. For eight, four, but for seven, three. Or, as in this case, when three attorney members are present, only one public member is necessary.

)) That may well be the right result. Either way is easy enough to administer. But the Court’s answer — round down — has the benefit of making service on a hearing panel more convenient and flexible, while still keeping the ratio relatively close to the goal of 2-to-1.