In re Glenn H. Stephens

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-BG-882

IN RE GLENN H. STEPHENS, III,

RESPONDENT.

A Suspended Member of the Bar

of the District of Columbia Court of Appeals

(Bar Registration No. 472780)

On Report and Recommendation of the

Board on Professional Responsibility

(Board Docket No. 17-BD-028)

(Disciplinary Docket Nos. 2015-D330,

2016-D081, 2016-D234, & 2016-D369)

(Submitted September 29, 2020 Decided March 25, 2021)

Before GLICKMAN and DEAHL, Associate Judges, and RUIZ, Senior Judge.

Opinion for the court by Associate Judge GLICKMAN.

Concurring opinion by Associate Judge DEAHL at page 11.

Dissenting opinion by Senior Judge RUIZ at page 15.

GLICKMAN, Associate Judge: In the present matter, the Board on Professional

Responsibility recommends that respondent Glenn H. Stephens, III be disbarred on

2

consent.1 The recommendation is not unanimous; two Board members dissent

because respondent refused to submit the affidavit normally required for a consent

disbarment by D.C. Bar R. XI, § 12(a). However, choosing not to participate in any

way in the disciplinary proceedings against him, respondent explicitly and

emphatically asked to be disbarred and declined to retract that request when the

Board afforded him the chance to do so. Moreover, neither respondent nor

Disciplinary Counsel takes exception to the Board majority’s recommendation.

Under these circumstances, and for the reasons that follow, we accept that

recommendation and disbar respondent on consent.

Respondent was personally served with the specification of charges in this

matter in April 2017. The charges arose out of respondent’s representation of

himself and various clients in litigation and related proceedings. Respondent did not

file an answer to the charges or any other pre-hearing documents. Instead, on March

1, 2018 (the deadline for exchanging proposed hearing exhibits), respondent sent an

1

For his failure to cooperate with a disciplinary investigation in another, still-

pending matter, this court suspended respondent in November 2018 pursuant to D.C.

Bar R. XI, § 3(c). In re Stephens, D.C. App. No. 18-BS-966.

3

email to Disciplinary Counsel with the subject line “Maybe I wasn’t clear . . .”2; it

read as follows (emphasis in the original):

Please don’t kill trees, waste taxpayer resources and ODC

personnel on me. ODC has no credibility or legitimacy to

me. Or the drivel you generate. You are simply dishonest

lawyers who do nothing to regulate dishonest lawyers.

And racists to boot. Rather than wasting time, money, and

paper on your sophistries, please disbar me. Disbarment

by ODC would be an honor. To date, aside from

competing in the triathlon world championships, my

greatest honors are my PhD from UCLA and my law

degree from Boalt. But a disbarment letter from ODC will

be framed and go up right alongside those diplomas.

Please do me the honor of disbarring me. I will be so very

very proud. Glenn

Disciplinary Counsel presented its evidence to an Ad Hoc Hearing Committee

at a hearing that lasted four days.3 Respondent did not participate in the hearing,

either personally or through counsel, and he did not file a post-hearing brief. In a

252-page report, the Hearing Committee found that respondent had engaged in a

pattern of unethical advocacy and abuse of the judicial system. It concluded that

respondent had violated Rules of Professional Conduct 3.1 (frivolous claims) in four

2

Respondent previously had sent emails accusing Disciplinary Counsel of

racial discrimination and other improprieties, and calling on Disciplinary Counsel to

drop the charges against him.

3

Disciplinary Counsel does not have the authority to unilaterally disbar an

attorney. See D.C. Bar. R. XI, § 6(a).

4

matters, 3.2(a) (expediting litigation) in one matter, 3.4(c) (violating the rules of a

tribunal) in one matter, 4.2 (communicating with a represented person) in one matter,

4.4(a) (embarrassing/burdening third parties) in four matters, 8.4(d) (serious

interference with the administration of justice) in three matters, and 8.4(g) (misuse

of criminal/disciplinary charges) in two matters. The Committee recommended that

respondent be suspended for three years with reinstatement conditioned on a

showing of fitness. Disciplinary Counsel took exception to that recommendation,

arguing that respondent should be disbarred. Respondent himself took no exception

to the Committee’s report and did not oppose Disciplinary Counsel’s call for his

disbarment.

Disciplinary Counsel apprised the Board of respondent’s email request to be

disbarred. The Board then issued a show cause order to respondent. The order

explained that while respondent had not satisfied the affidavit requirement for

consent disbarment in Bar Rule XI, § 12(a),4 his email, coupled with his failure to

4

Section 12(a) provides:

An attorney who is the subject of an investigation or a

pending proceeding based on allegations of misconduct

may consent to disbarment, but only by delivering to

Disciplinary Counsel an affidavit declaring the attorney's

consent to disbarment and stating:

5

participate in the disciplinary proceedings in any way, “clearly” indicated to the

Board that respondent “wants to be disbarred.” Moreover, the Board noted, “nothing

in the record” suggested that respondent’s disbarment request “was unknowingly or

improvidently made, or that he has thought better of it and would like to remain a

member of the Bar.”5 Stating that it saw “no point” in spending substantial resources

on a case “where both [r]espondent and Disciplinary Counsel want the same thing[,

namely r]espondent’s disbarment,” the Board ordered respondent to “show cause

(1) That the consent is freely and voluntarily rendered, that

the attorney is not being subjected to coercion or duress,

and that the attorney is fully aware of the implication of

consenting to disbarment;

(2) That the attorney is aware that there is currently

pending an investigation into, or a proceeding involving,

allegations of misconduct, the nature of which shall be

specifically set forth in the affidavit;

(3) That the attorney acknowledges that the material facts

upon which the allegations of misconduct are predicated

are true; and

(4) That the attorney submits the consent because the

attorney knows that if disciplinary proceedings based on

the alleged misconduct were brought, the attorney could

not successfully defend against them.

5

The Board pointed out that the disciplinary charges against respondent had

been pending for eleven months before he requested to be disbarred, and that

respondent had not repudiated his request, even though Disciplinary Counsel had

used it to support its arguments before the Hearing Committee and the Board in

support of disbarment.

6

why the Board should not recommend to the Court of Appeals that [r]espondent be

disbarred forthwith, based on his consent to be disbarred, without further

consideration of the proceedings against him.”6

Respondent did not respond to the order to show cause. Instead, he sent a

mailing to the Office of Disciplinary Counsel, in which he enclosed pictures of

Flavor Flav (from the hip-hop group Public Enemy) with the words “ODC IS A

JOKE” written at the top, and reasserted that ODC attorneys were unethical and

racist.

It is with the case in this posture that the Board recommends we disbar

respondent on consent. Respondent has not objected to that disposition of his case.

Disciplinary Counsel also takes no exception to it and “agrees with the Board that

the disciplinary system should not have to expend substantial resources where, as

here, the respondent-lawyer has thumbed his nose at the system” and has not denied

“[W]e must consider,” the Board explained, “that time spent by the Board

6

and the Court reviewing the particulars of Respondent’s case will necessarily delay

the resolution of other disciplinary matters. We see no point to further diverting the

disciplinary system’s limited resources away from cases involving respondents who

desire to retain their privilege to practice law in the District of Columbia, or from

the public that awaits a resolution of contested proceedings.”

7

the misconduct found by the Hearing Committee or objected to the proposed

sanction.7

D.C. Bar R. XI, § 9(h)(2) provides, in pertinent part, that “if no exceptions are

filed to the Board’s report, the Court will enter an order imposing the discipline

recommended by the Board.” This rule is not absolute—we would not impose

discipline that is clearly against the law or the public interest, for example, merely

because no party took exception to it8—but we see no reason not to adhere to it here.

7

Disciplinary Counsel also contends that cases like this one demonstrate a

need to amend the disciplinary rules, stating as follows:

Where a respondent-lawyer does not file an answer

or participate in the proceedings, Disciplinary Counsel is

still required to establish the misconduct by clear and

convincing evidence in the form of documentary evidence,

sworn affidavits, and/or sworn testimony. See D.C. Bar R.

XI, § 8(f); Board Rules 7.8. (Footnote omitted.) The

Court should revise its rules. Disciplinary Counsel, the

victims of a respondent’s misconduct, and other witnesses,

should not have to expend substantial time and resources

to prove misconduct that the respondent has not denied.

Similarly, a hearing committee should not have to hold a

hearing, receive testimony and documentary evidence, and

issue a report setting out in some detail the misconduct that

the respondent has not denied. But, that is what happened

here, what has happened in numerous other cases, and will

happen in future cases unless the rules are changed.

8

See In re Robertson, 612 A.2d 1236, 1242 (D.C. 1992) (“[W]e cannot adopt

a [sanction] recommendation . . . if it goes beyond the scope of what our rules allow

8

Respondent has waived any procedural objection to the Board’s determination that

he effectively consented to his disbarment notwithstanding the lack of the affidavit

required by Bar Rule XI, § 12(a). “We have consistently held that an attorney who

fails to present a point to the Board waives that point and cannot be heard to raise it

for the first time here.”9 Thus, our cases say that “a respondent attorney who claims

lack of notice of the charges or other procedural irregularities, without having raised

them before the Hearing Committee or the Board, will be held to have waived such

claims, consistent with due process.”10 And “by failing to file any exceptions,

respondent [also] has effectively conceded that the proposed sanction is

simply because the respondent attorney has not effectively contested the

recommendation.”).

9

In re Green, 136 A.3d 699, 700 (D.C. 2016) (quoting In re Holdmann, 834

A.2d 887, 889 (D.C. 2003) (quoting In re Abrams, 689 A.2d 6, 9 (D.C. 1997) (en

banc))).

10

In re Robertson, 612 A.2d at 1242 (citations omitted).

9

appropriate.”11 That sanction, disbarment, is not incommensurate with the gravity

of respondent’s proven misconduct.12

This is an atypical case. In the usual case of disbarment by consent, the

attorney’s affidavit is required because it serves two purposes: (1) it provides

assurance that the attorney’s consent is knowing and voluntary, and (2) the

admissions required in the affidavit are a substitute for a full-blown adjudication and

relieve Disciplinary Counsel of the burden of proving the attorney’s disciplinary

violations on a full evidentiary record. Neither of those reasons is important in the

unusual circumstances of this case. Respondent’s words and actions dispel any

concern that his request to be disbarred and failure to file exceptions were

unknowing, improvident, or coerced. Among other things, respondent had the

specification of charges and Disciplinary Counsel’s hearing exhibits, and the show

11

In re Patel, 926 A.2d 124, 125 (D.C. 2007) (citations omitted); see also,

e.g., In re Reiner, 617 A.2d 984, 985 (D.C. 1992) (“A member of the Bar who is the

subject of a pending disciplinary proceeding may acquiesce in a disbarment by

consent, D.C. Bar R. XI, § 12, and we see no reason why an attorney who does not

file any exceptions or opposition to a disciplinary recommendation by the Board

should not, as a general rule, likewise be considered as having acquiesced in effect

to the proposed sanction.” (citation omitted)).

12

See In re Shieh, 738 A.2d 814, 818–19 (D.C. 1999); see also D.C. Bar R.

XI, § 9(h)(1) (providing that this court generally “shall adopt the recommended

disposition of the Board unless to do so would foster a tendency toward inconsistent

dispositions for comparable conduct or would otherwise be unwarranted”).

10

cause order provided him the opportunity to reconsider his request. And since a full

evidentiary hearing was held, at which Disciplinary Counsel presented its evidence,

and the Hearing Committee issued a lengthy and comprehensive decision with

findings by clear and convincing evidence, respondent’s admissions in an affidavit

were unnecessary.13

Accordingly, it is ORDERED that Glenn H. Stephens, III, be, and hereby is,

disbarred by consent from the practice of law in the District of Columbia. Inasmuch

as respondent’s right to practice law in the District has been and remains suspended

in another matter, this order of disbarment is effective immediately. For purposes

of reinstatement, however, the period of respondent’s disbarment shall not begin to

run until such time as he files an affidavit in compliance with D.C. Bar R. XI, §

14(g). See D.C. Bar R. XI, § 16(c).

So ordered.

13

Cf. D.C. Bar R. XI, § 8(f) (providing that where a respondent lawyer fails

to answer the petition or participate in the disciplinary proceedings, the Hearing

Committee Chairperson “may enter an order of default and the petition shall be

deemed admitted subject to ex parte proof by Disciplinary Counsel sufficient to

prove the allegations, by clear and convincing evidence, based upon documentary

evidence, sworn affidavits, and/or testimony”).

11

DEAHL, Associate Judge, concurring: We are bound by D.C. Bar Rule XI

§ 9(h)(2) to disbar respondent. That is the Board on Professional Responsibility’s

recommended discipline and respondent takes no exception to it. Section 9(h)(2)

contains a straightforward command under these circumstances: “[I]f no exceptions

are filed to the Board’s report, the Court will enter an order imposing the discipline

recommended by the Board.” That command, promulgated by order of this court

under D.C. Code § 11-2501(a) (2012 Repl.), disposes of this case. I would not delve

into the propriety of the Board’s recommended sanction because—proper or not—

respondent takes no exception to it and that ought to end the matter.

My colleagues go further because they think we cannot impose a sanction that

is “clearly against the law or the public interest,” prompting each of them to examine

(and ultimately disagree about) whether the Bar’s recommended sanction is plainly

at odds with D.C. Bar Rule XI § 12. That endeavor, in my view, is beside the point.

It is never contrary to the Bar Rules for us to impose a recommended sanction that

is unobjected to because § 9(h)(2) directs us to do just that, without exception. It is

effectively an override switch so that even if the Board runs roughshod over the Bar

Rules in reaching its recommendation, the onus is on the respondent to object to that;

when he fails to do so, we comply with the Bar Rules by imposing the recommended

sanction.

12

To be sure, we cannot mete out a punishment that violates some statutory or

constitutional command. We could not order a respondent stretched on the rack, or

broken on the Catherine wheel, merely because the Board recommended it and

respondent did not object. That would violate both the Eighth Amendment and it

would exceed the statutorily authorized sanctions permitted in bar proceedings—

namely, disbarment, suspension, or censure. D.C. Code § 11-2502 (2012 Repl.).1

But for the Board’s recommended sanction to be clearly against the law or the public

interest, it must be in violation of some law external to the Bar Rules themselves.

By virtue of the Board recommending a sanction and a respondent not objecting to

it, that sanction perforce becomes compliant with the Bar Rules under § 9(h)(2). So

long as the Board’s unobjected-to recommended sanction remains within statutory

and constitutional bounds, I think we must impose it.

The lone authority my colleagues offer to the contrary is In re Robertson, 612

A.2d 1236, 1242 (D.C. 1992), a case where we declined to impose an unobjected-to

sanction because we found it non-compliant with the Bar Rules themselves (more

specifically, what those rules mean by “restitution”). But that case predates

1

To those three sanctions provided by statute the Bar Rules permit several

lesser professional sanctions—“Reprimand,” “Informal admonition,” “Revocation

or suspension of a license to practice as a Special Legal Consultant”—all fairly

subsumed in the greater sanctions permitted by statute. D.C. Bar Rule XI § 3(a).

13

§ 9(h)(2), which was promulgated in 1994—in the wake of and perhaps in response

to Robertson—and effective the following year. Section 9(h)(2)’s addition to the

rules effectively codified the dissenting view from Robertson that it “is not our

function to overlook the acquiescence of the parties and to probe the theoretical

merits of an issue which is not being contested before us,” 612 A.2d at 1247

(Schwelb, J.), so that unobjected-to sanctions are now necessarily compliant with

the Bar Rules. So far as I can tell we have never refused to impose an unobjected-

to sanction in the twenty-six-plus years since that amendment, and I do not think a

mere deviation from some other Bar Rule(s) would ever justify us doing so.

To the dissent’s view that the Board proceedings “strayed so far from

fundamental safeguards of the disciplinary system” as to merit our rejecting the

recommended disbarment, I have two responses. The first I have already made: if

the claim is that the Board violated Bar Rules in recommending the sanction it did,

that might be true,2 but it is of no import. Respondent has not availed himself of the

2

My dissenting colleague, and the Board’s dissenters, make a persuasive case

that it did. I do not mean to express any contrary view. I join Judge Glickman’s

opinion only with that caveat: to the extent his opinion suggests the Board was right

to dispose of Rule XI § 12(a)’s requirements because they are not “important in the

unusual circumstances of this case,” or are “unnecessary,” I disagree. But I

understand him to use those descriptors only in the sense that those requirements are

not so important as to justify rejecting the recommended sanction here. With that I

14

one fundamental safeguard that can protect him from such a violation: taking

exception to the Board’s recommended sanction. By failing to do that, the

recommendation’s compliance with the Bar Rules is automatic under § 9(h)(2).

Second, if the dissent is invoking some greater sense of injustice at

respondent’s disbarment, I do not share that sense. The D.C. Bar is a professional

organization and its members hold a position of public trust. See generally In re

Dortch, 860 A.2d 346, 355, 363 (D.C. 2004). When one of those members cannot

be bothered to respond to charges of serious misconduct—or, as here, affirmatively

requests disbarment in response—he has been afforded an excess of process when

Disciplinary Counsel nonetheless presents those charges and proves them to the

Hearing Committee’s satisfaction by clear and convincing evidence, as happened

here. Perhaps the Bar Rules entitled him to an even greater excess of process, but

if so then we can afford him relief only if he asks for it. He did the opposite here,

when more than three years ago he insisted that we not “kill trees” or “waste taxpayer

resources” on him. We should have been quicker to abide.

agree, and I would go further that no mere violation of the Bar Rules could ever

provide a basis for rejecting an unobjected-to sanction.

15

RUIZ, Senior Judge, dissenting: Because it is clear that the requirements for

a disbarment by consent have not been met, D.C. Bar R. XI, § 12, and the court does

not have a report and recommendation from the Board on Professional

Responsibility based on a substantive review of the evidentiary record and findings

of the Hearing Committee concluding that respondent committed the charged Court

of the Rules of Professional Responsibility, D.C. Bar R. XI, §§ 9(b), (d), (h)(1), I

dissent from the order of disbarment. Instead, I would suspend respondent and

remand the case to the Board to conduct the usual substantive review of the Hearing

Committee record and make a recommendation to the court on the substantive

charges and evidence presented by Disciplinary Counsel.

First, this is not a disbarment by consent. D.C. Bar Rule XI, § 12 sets forth

the sole method available to attorneys who choose to be disbarred by consent rather

than proceed with a pending disciplinary proceeding. Subsection (a) specifies that

“[a]n attorney who is the subject of an investigation or a pending proceeding based

on allegations of misconduct may consent to disbarment, but only by delivering to

Disciplinary Counsel an affidavit declaring the attorney’s consent to disbarment

. . . .” D.C. Bar R. XI, § 12(a) (emphasis added). There are specific requirements

for the contents of the affidavit and it is undisputed that respondent has failed to

submit such an affidavit.

16

Further, even if we were willing to overlook the plain language of subsection

(a) providing that its procedure constitutes the “only” means available for consent

disbarment, as the dissenting Board members correctly note, respondent’s emails

cannot be construed to be the functional equivalent of the required affidavit. At

most, respondent’s emails can be read to minimally satisfy the requirements of D.C.

Bar Rule XI, § 12(a) that his statement was given freely and voluntarily and that he

is aware that there is a disciplinary proceeding against him. See D.C. Bar R. XI,

§§12(a)(1)-(2). However, respondent’s emails do not indicate that he is “fully aware

of the implication of consenting to disbarment” or that he is “aware of the nature of

the proceedings pending against him.” Id. Most importantly, he has not

“acknowledged that ‘the material facts upon which the allegations of misconduct are

predicated are true,’” or that he is “consenting to disbarment because he ‘knows

that. . . . [he] could not successfully defend against’ the alleged misconduct.”1 Such

omissions are not “technical or trivial.” See In re White, 605 A.2d 47, 48 (D.C.

1992) (explaining that the Board rejected a consent disbarment affidavit when the

attorney failed to set forth and acknowledge all charges against him). It should be

1

To the contrary, the language of the emails imply that respondent is not

asking to be disbarred because he acknowledges that the allegations are true and he

cannot successfully defend against them, but because he rejects the process based on

his belief that he is being unfairly targeted in a sham investigation by the “dishonest”

and “racist” attorneys at the Office of Disciplinary Counsel.

17

noted that Disciplinary Counsel disagreed with the Board’s proposed course to

disbar respondent solely on the basis of the email and failure to respond to the show

cause order, and argued that the Board should decide on the merits of the charges,

based on the case presented to the Hearing Committee.2

Similarly, the Board erred in construing respondent’s failure to respond to its

July 17 show cause order as consent to disbarment under D.C. Bar Rule XI, § 12(a).

The show cause order “set out the conditions under which respondent may consent

to disbarment, including the statements that must be contained in the required

affidavit pursuant to D.C. Bar R[ule] XI, § 12(a). . . .” The Board reasoned that by

not furnishing the affidavit, respondent indicated that he did not wish to avail himself

of procedural protections that D.C. Bar Rule XI, § 12 provides and thus it

2

Disciplinary Counsel expressed reservations about the Board’s course of

action, warning of two consequences of proceeding to disbar by consent based on

the emails without a finding or admission of wrongdoing: (1) that the charges would

be deemed “unadjudicated misconduct” pursuant to Board Rule 9.8, which would

place an evidentiary burden on Disciplinary Counsel who would have to present its

case again if respondent sought reinstatement and disputed the violations; and (2)

that respondent might not be subject to reciprocal discipline in the U.S. District

Court for the District of Columbia and the U.S. Court of Appeals for the District of

Columbia. The District Court had referred one of the matters underlying the charges

to Disciplinary Counsel and both courts had requested updates on respondent’s

disciplinary case.

18

“conclude[d] that his response is the functional equivalent of meeting the

requirements of Rule XI, § 12.”

As a matter of logic, however, this reasoning is less than compelling as it is

equally reasonable to infer that once advised of the requirements for a disbarment

by consent, notice that his email did not satisfy those requirements, and Disciplinary

Counsel’s objection to the Board’s proposal to bypass a merits review of the Hearing

Committee record, respondent elected not to go that route. Rather than signifying

respondent’s rejection of the protections of § 12, his failure to respond to the show

cause order could be viewed as signifying the opposite; that having been alerted that

he had the benefit of those protections, he sought to preserve them.3

In addition to its illogic, the Board’s inference that by remaining silent in the

face of the show cause order respondent intended to waive the protections of § 12

3

The show cause order stated that respondent’s email did not comply with

the requirements for disbarment by consent under § 12 and asked respondent to show

cause why the Board should not “deem him to have complied” and recommend to

the court that he be disbarred by consent without further consideration of the

proceedings.

Disciplinary Counsel agreed that disbarment was called for but objected to

its being based solely on the email and show cause order, arguing that the Board also

needed to review and make a recommendation based on the findings of the Hearing

Committee.

19

sits uneasily with the Board’s rejection of Disciplinary Counsel’s request that the

Board adopt a waiver doctrine that would allow it to follow the Hearing Committee’s

recommendation without substantive review when the respondent has not presented

argument to the Committee or exceptions to its Report. The Board was appropriately

squeamish about foregoing a substantive review without guidance from the court in

light of the clear language of the Rules which provide that the Board “shall decide

the matter on the basis of the Hearing Committee record” and “after reviewing the

Hearing Committee record.” D.C. Bar R. XI, §§ 9(b)-(c).4 As the Board commented

in its Report, it cannot evaluate whether substantial evidence supports the Hearing

Committee’s findings “without actually reviewing the record,” nor can it decide

whether to endorse the Committee’s recommended sanction to the court without the

“fact-intensive ‘comparability analysis’” necessary to ward against imposition of a

sanction that “fosters a tendency toward inconsistent dispositions for comparable

conduct or [that may] otherwise be unwarranted,” as required by § 9(h). Yet that

appropriate regard for the Rules went out the window when the Board decided,

instead, to recommend a disbarment by consent that does not comply with the

requirements clearly prescribed in § 12(a), based on its own new waiver theory.

4

In this case, Disciplinary Counsel filed an exception to the three-year

suspension (with a showing of fitness required for reinstatement) recommended by

the Hearing Committee, and argued for disbarment instead.

20

Second, the Board’s refusal to conduct a review of the Hearing Committee

record violated the Rules and deprives this court of a substantive report that would

form the basis for discipline on the merits of the serious charges that were filed

against respondent. The court generally affords deference to the Board’s report and

recommendation, but this deference is predicated upon the Board’s review of the

Hearing Committee’s report and recommendation:

We must accept the findings of fact made by the Board

unless they are unsupported by substantial evidence of

[the] record, and shall adopt the recommended disposition

of the Board unless to do so would foster a tendency

toward inconsistent dispositions for comparable conduct

or otherwise would be unwarranted. In a similar fashion,

the Board is obliged to accept the hearing committee's

factual findings if those findings are supported by

substantial evidence in the record, viewed as a whole.

Moreover, the Board ‘must defer to . . . [the] credibility

determinations[ ] made by the [Board's] fact-finding body

(the hearing committee).

In re Elgin, 918 A.2d 362, 373 (D.C. 2007) (internal citations and quotations

omitted); see also D.C. Bar R. XI, § 9(h)(1) (“In determining the appropriate order,

the Court shall accept the findings of fact made by the Board unless they are

unsupported by substantial evidence of record.”).

As the Board recognizes, D.C. Bar Rule XI, § 9(b) requires that its decision

be based upon an actual review of the Hearing Committee’s record. Further,

21

“[p]ursuant to D.C. Bar R[ule] XI, §§ 9(c)-(d), the Board is required to review the

Hearing Committee record and prepare a report of its findings and recommendation,

which is then filed with the Court.” See also D.C. Bar R. XI, § 4(e)(7) (The Board

has the “power and duty . . . [t]o review the findings and recommendations of

Hearing Committees submitted to the Board, and to prepare and forward its own

findings and recommendations, together with the record of proceedings before the

Hearing Committee and the Board, to the Court.”). In this case, the Office of

Disciplinary Counsel presented its case to the Hearing Committee which in turn

considered the evidence and wrote an extensive 252 page report. The Board cannot

bypass what the Rules require by devising, after the fact, a non-compliant consent

disbarment that was never presented to or by Disciplinary Counsel. See D.C. Bar R.

XI, §§ 12(a)-(b).

Third, the majority relies on § 9(h)(2) which allows the court to impose the

discipline recommended by the Board where the respondent has filed no exception

to the Board’s report with the court. As Judge Glickman’s opinion for the court

recognizes, however, that is not a wide open dispensation and it may not be invoked

to impose discipline in a manner that is clearly against the law or the public interest.5

5

In his concurring opinion, Judge Deahl interprets Rule XI, § 9(h)(2) as

requiring the court to “enter an order imposing the discipline recommended by the

Board” when no exceptions are filed to the Board’s report even if: (1) the Board’s

22

This proceeding has strayed so far from clear mandates in the Rules that are

fundamental safeguards of the disciplinary system that reliance on the respondent’s

failure to file an exception with the court is not a sound basis for the imposition of

the ultimate professional sanction of disbarment, without completing the substantive

process that Disciplinary Counsel initiated. The Board decided not to review the

Hearing Committee’s findings because “we see nothing to be gained by an

exhaustive march through those procedures” because respondent indicated that he

wishes to be disbarred and did not participate in the disciplinary proceeding. The

Board cites no authority for its decision to deviate from the requirements of D.C.

Bar Rule XI, §§ 9(b)-(d) because there is none. If the Board wishes to have that

report does not meet the requirements of Rule XI, §§ 4(e)(7), 9(b)-(d); (2) the

Board’s findings and recommendation are unsupported by substantial evidence; and

(3) the Board’s recommended disposition “would foster a tendency toward

inconsistent dispositions for comparable conduct or would otherwise be

unwarranted.” D.C. Bar R. XI, § 9(h)(1). Under this absolutist view noncompliance

with the Rules is a “mere violation” that should not stand in the way of this

disbarment. See ante. My concurring colleague also considers that following what

our Rules require is an “excess of process.” But D.C. Bar Rule XI, § 9(h)(2) is not

a stand-alone “override-switch.” It is one part of the Rules that must be read in

context. See Lucas v. United States, 240 A.3d 328, 335 (D.C. 2020) (“The words of

a statute must be read in light of the statute taken as a whole and are to be given a

sensible construction, one that would not work an obvious injustice.”) (internal

quotation marks and citation omitted). “Ultimately, it is this court's weighty

responsibility to impose an appropriate disciplinary sanction on a member of our

Bar.” In re Howes, 52 A.3d 1, 13 (D.C. 2012). Reading D.C. Bar Rule XI, § 9(h)(2)

to bind the court to the Board’s recommendation regardless of its soundness and

adherence to mandated procedures is an abdication of this court’s responsibility as

the ultimate guarantor of the disciplinary process.

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option, it may propose a change in the Rules that is subjected to the usual vetting

process. In sum, our Rules simply do not allow what the majority has sanctioned.

A lawyer’s nonparticipation does not give the Board license to disregard its

obligations to the court.

Fourth, I share the Board’s and my colleagues’ evident frustration with a

respondent who has thumbed his nose at the disciplinary system. But the proper

response is not to let pique lead to abandoning well-established norms but rather to

follow those norms in the usual course. It is the reasoned, sober answer to an

accusation that the system is unfair and biased. Moreover, there is no imperative to

abandon such norms as the disciplinary system is not without a means to defend

itself and the public from respondent’s nonparticipation.

If the Board did not wish to take the time to review the Hearing Committee

report and make a recommendation to the court on the merits of the case presented

by Disciplinary Counsel, it had an alternative measure provided in the Rules that is

designed to protect the public. D.C. Bar Rule XI, § 3(c) allows the Board to petition

the court for a temporary suspension of an attorney who has failed to respond to an

order of the Board in cases where Disciplinary Counsel’s investigation involves

allegations of serious misconduct. This is such a case. The suspension is dissolved

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when “(1) Disciplinary Counsel notifies the [c]ourt that the attorney has responded

to an order or (2) the [c]ourt determines that an adequate response has been filed by

the attorney.” D.C. Bar R. XI, § 3(d). If respondent still chose to not respond in

the disciplinary proceeding, his suspension would be indefinite —– protecting the

public from his further practice in this jurisdiction. Indeed, respondent is already

under suspension for this very reason by order dated November 7, 2018, in case No.

18-BS-966. And on October 10, 2019, the court issued an order to show cause why

he should not be suspended pending the court’s final action in this case, which

respondent did not answer. D.C. Bar R. XI, § 9(g). These suspensions serve to

protect the public until respondent engages with the proceedings or the Board

completes its substantive review and recommendation on the charges of professional

misconduct.

For these reasons I would not issue an order of disbarment by consent but

would enter an order of temporary suspension pursuant to our show cause order and

remand the case to the Board for consideration of the Hearing Committee report and

record.