In Re Jones

TERRY, Associate Judge,

concurring:

I join in the court’s opinion and order, but with some misgivings. I am quite troubled by the notion that failure to respond to an inquiry from Bar Counsel, however legitimate that inquiry may be, may be deemed a violation of DR 1-102(A)(5). I do not believe this rule provides adequate notice that such an omission is punishable as a disciplinary violation, separate and distinct from the substantive violation which Bar Counsel may be investigating. Due process requires more. Specifically, it requires “that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 , 92 S.Ct. 2294, 2298-99 , 33 L.Ed.2d 222 (1972); accord, e.g., United States v. Harriss, 347 U.S. 612, 617 , 74 S.Ct. 808, 812 , 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939); Connally v. General Construction Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926); Woods v. District of Columbia Nurses’ Examining Board, 436 A.2d 369, 373-374 (D.C.1981). In my view, DR 1-102(A)(5) does not meet this constitutional standard when applied to an attorney’s mere failure to respond to an inquiry from Bar Counsel.

There are, to be sure, several cases — one of which involved this same respondent — in which this court has imposed disciplinary sanctions under DR 1-102(A)(5) for failure to respond to Bar Counsel’s inquiries. In re Jones, 521 A.2d 1119 (D.C.1986); In re Haupt, 444 A.2d 317 (D.C.1982); In re Lieber, 442 A.2d 153 (D.C.1982); In re Whitlock, 441 A.2d 989 (D.C.1982); In re Russell, 424 A.2d 1087 (D.C.1980); In re Willcher, 404 A.2d 185 (D.C.1979). But none of the respondents in those cases offered any challenge, constitutional or otherwise, to the use of DR 1-102(A)(5) in this manner. Thus the constitutionality of DR 1-102(A)(5), as applied to failure-to-respond situations, remains an open question.

The one case in which this issue has been raised before this court is In re James, 452 A.2d 163 (D.C.1982), cert. denied, 460 U.S. 1038 , 103 S.Ct. 1429 , 75 L.Ed.2d 789 (1983). In James , however, the respondent attorney had failed to raise it before the Board, and as a result we held that it had been waived. Id. at 168 . What happened in James happened in this case as well. Re *338 spondent Jones not only failed to raise this issue before the Board; she failed to raise any issue before the Board. She has not filed any pleadings or appeared, either personally or by counsel, before the hearing committee, the Board, or this court. In these circumstances James precludes us from addressing the due process question here.

I write this separate opinion because I have serious doubts about treating an attorney’s failure to respond to the inquiries of Bar Counsel as a separate disciplinary violation, although it may well have some bearing on the sanction which the court chooses to impose. Sooner or later someone will preserve his or her right to raise the issue in this court, and then we shall be forced to consider it.