Petition for Writ of Certiorari — Burton v. Board on Professional Responsibility of the District of Columbia Court of Appeals

(83-1836.

N

IN THE

SUPREME COURT OF THE UNITED STATES

“OCTOBER TERM 1983

MELVIN M. BURTON, JR.

A Member of the Bar of the

District of Columbia Court of Appeals

PETITIONER,

VS

BOARD ON PROFESSIONAL RESPONSIBILITY OF

DISTRICT OF COLUMBIA COURT OF APPEALS

RESPONDENT,

PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Melvin M. Burton, Petitioner herein, prays that a Writ of

Certiorari issue to review the judgment of the District of

Columbia Court of Appeals entered in the above entitled on

January 11, 1984; petition for rehearing en banc denied on

April 2, 1984.

Charles A. Brady

Attorney for Petitioner

1343 Pennsylvania Avenue, S.E.

Washington, D. C. 20003

332-7600

HH PP

PARTIES

The parties to the proceedings in the District of Columbia

Court of Appeals — the Court whose judgment is sought to

be reviewed — were:

Melvin M. Burton, Jr.

a Member of the Bar of the

District of Columbia

Court of Appeals

(Petitioner herein)

and

Board on Professional Responsibility

of the District of Columbia

Court of Appeals

(Respondent herein)

QUESTIONS PRESENTED

1. Whether a newly defined definition for Disciplinary

Rule 9-102 (A) (now renumbered 9-103 (A), can be applied

to conduct occurring before the adoption of the new defini-

tion or whether this retroactive effect is therefore Ex Post

Facto and violative of the Due Process Clause of the Fifth

Amendment to the Constitution of the United States.

2. Where, under the newly adopted standard for Discipli-

nary Rule 9-102 (A), the prescribed sanction is that of dis-

barment, yet, the sanctions imposed thereunder ranged

from suspensions to disbarment for similar conduct, has

there been disparity in the imposition of sanctions which is

violative of the due process requirement of the Fifth

Amendment to the Constitution of the United States.

3. Has there been a violation of the Due Process require-

ment under the Fifth Amendment when the Board on Pro-

fessional Responsibility is not estopped from using evi-

dence of a prior adjudicated disciplinary proceeding to

assist it in its determination in a new and unrelated

proceedings.

4. Does the denial of the right for a Respondent to con-

duct a voir dire of hearing panel members, which right is

granted pursuant to Disciplinary Rule, Chapter 8, Section 3

(1) c, violate due process and the Respondent's Fifth

Amendment and Sixth Amendment Rights.

5. Does the Board of Professional Responsibility pos-

sess quasi-judicial authority, so as to empower it to conduct

a hearing on the conduct of a Court Appointed Trustee,

(The Respondent herein), where the Court has been to

consider referring the matter to the Board on Professional

Responsibility, but does not do so.

6. Where the evidence presented against a Respondent

is not clear and convincing but the Board on Professional

Responsibility makes a finding that substantial evidence

was present to support its finding, has the Board on Profes-

sional Responsibility afforded a Respondent the due proc-

ess required in Disciplinary Proceedings.

7. In reviewing a disciplinary proceedings, does the Due

Process Clause of the Fifth Amendment require the review-

ing authorities (i.e., the Board on Professional Responsibil-

ity and the District of Columbia Court of Appeals) to utilize

a standard to support their findings a test greater than the <

substantial evidence standard.

TABLE OF CONTENTS

GPT TD ices cere cacccncsmssanveccasessese

FTI U EE Ba ace ecsenccccccsaccesescescesocesess

CONSTITUTIONAL PROVISIONS, STATUTES

PGS CUPED PATE GED 6 csv iccrnsscrasesesusessenes viii

STAVES s GP TOU CARE ccc ssc ccccccccnscccccces

REASONS FOR.GRANTING THE WRIT .............

A. Where a new definition is adopted for Discipli-

nary Rule 9-102(A) and the prescribed sanction there-

under is disbarment, to apply the definition and sanc-

tion to conduct which occurred prior to the adoption of

the newly adopted standard is a violation of the Fifth

Amendment of the United States Constitution and has

Ex PORE FOCI WRBTOEIORD oon ccc cccccccccccccccces:

B. When an adopted sanction for disciplinary Rule

9-102(a) is that of disbarment and the sanctions that

have been imposed by different panels of the Court

ranges from suspensions to disbarment for similar

conduct, the disparity in the imposition of sanctions as

it applies to the Respondent is a violation of the Fifth

PR BRAK 066 6ES GA nnd ehendecocnedsenededases

C. Where the Board on Professional Responsibility

uses evidence of a prior adjudicated disciplinary pro-

ceedings to assist it in reaching a determination in a

new and unrelated proceeding, the doctrine of estop-

pel is applicable and the due process requirement of

the Fifth Amendment is violated .....................

D. Where Disciplinary Rule, Chapter 8, Section

3(1)C grants a Respondent aright to challenge hearing

panel members, it is a violation of the due process

.

requirement of the Fifth and the Sixth Amendfnents

rights of aRespondent to deny him the right to conduct

a Voir Dire of tne hearing panel members ............. 18

E. Where the Court has been requested to consider

referring a matter concerning the conduct of a Court

Appointed Trusteeto the Board on Professionai responsi-

bility, but does not do so, the Board on Professional

Responsibility does not possess quasi-judicial author-

ity to empower it to conduct a hearing on the conduct

of the Court Appointed Trustee ................00000e 20

F. Where the Board on Professional Responsibility

makes a finding that substantial evidence was present

to support its findings but the evidence it had to con-

sider was not clear and convincing, the Board on Pro-

fessional Responsibility has not afforded a Respond-

ent due process as required in disciplinary

DIGSOOTINED occ sccccccccccecscdaebueacBeaseabesenss 23

G. In reviewing a discipline:y proceeding, the Due

Process clause of the Fifth Amendment requires both

the Board on Professional Responsibility and the Dis-

trict of Cclumbia Court of Appeals to utilize a standard

greater than the substantial evidence test, in order to

CUBGOT AS BGG .o.o iv vcccnccccvowsctcccceesseccteces 25

CINE ccc ccc cccccscnccccnsesncnnccceseeeene 29

TABLE OF CONTENTS

(continued)

APPENDIX

Opinion below of the District of Columbia

EEE 6. .h.aneunsneseneccess césecseccescacs 1

Order of the District of Columbia Court of

Appeals Denying Hearing En Banc ............ 666008 1

Report and Recommendation of the Board

on Professional Responsibility on Findings

of Hearing Committee No. Two .... 2... .. ccc cece 3

Report and Recommendation of the Board

on Professional Responsibility on Findings

of Hearing Committee Number Five ...............5. 29

Petitioner's Motion for Hearing En Banc ............. 44

Petitioner's Reply to Bar Counsel's Opposition

to Motion for Hearing En Banc ........ 6c ccc ce eees 56

TABLES OF AUTHORITIES

CASES:

Addington v. Texas, 441 U.S. 418, 423 (1979) ......... 26

Chariton v. F.T.C., 543 F.2d 903, 906

SG SEED Kab bbcacerebenaheeveces¥edsoceseds 20

Crawford v. Bounds, (CA 4 NC) 395 F.2d 297 ......... 19

Ex Parte Garland, 72 U.S. (4 Wall) 333, 379 (1867) .... 13

Ex Parte Wail, 107, U.S. 265, 288 (1883) :............. 13

In the Matter of Burka, 423 A.2d 1818,

183, 186, 187 (D.C. App. 1980) .... 2... 6. cece e eee ees 12

In Re Cefarrati, No. M-104-82, June, 1983

SEE 60.640 b0b0 60504065 66556040 SN ENR e CHO 14

In Re Colson, 412 A.2d 1160 (D.C. App. 1979) ........ 26

In Re Dwyer, 399 A.2d 1, 11-12 (D.C. App. 1979) ...... 26

In Re Harrison, 461 A.2d 1034 (D.C. 1983) ........... 14

In Re Hines, Docket No. 194-80-447-79 (B.P.R.)

Sy eh SE Ween ec ccncecewhscenccccncwéecvesses 14

In Re McLean, M-142-82, Jan. 11 1983 (D.C. App.) .... 14

in Re Newsome, No. D 34-79 (D.C. November 21,

GE Gk oki dk cdun dc \occdnosenvbduvssetsb00sds00006 15

In the Matter of Quimby, 123 U.S. App. D.C. 273,

oie) fa ar rr rrr rT Ty TTT 15

In Re Ruffalo, 390 U.S. 544, 551 (1968) ............... 13

In Re Smith, 403 A.2d 296 302-303 (D.C. 1979) ........ 2

!n Re Thorup, 432 A.2d 1221 (D.C. 1981) ............. 20

Wilner v. Committee on Character and Fitness,

Oe As Gy CUED. Rete iced ne cccecesevnnsccecsts 13

TABLE OF AUTHORITIES

(continued)

In Re Winship, 397 U.S. 358 (1970) ....... 6.6 cece 26

Powell v. Nigro, 543 F. Supp 1044 1046 (D.C. 1982) ... 26

STATUTES:

rr rr Ce ov ce beedees ee csebeneu eed vi

D.C. Code 1973

EE cave chebehskaounbenebenticesseeseese 1

ro a eee eeu aeeebaehketweees 20

Rules of Board on Professional Responsibility

Responsibility of the District of Columbia

Courts of Appeals

PAGE

es ce ce ee eed de besa tebebinneaeseeen 2

nk cece cet anhs Fane bencbaneneveeees 2

Rule 10.4 of the Rules of the

Board on Professional Responsibility ................5. 1

Rule 12.6 of the Rules of the

Board on Professional Responsibility ...............5. 1

Rule Xl of the Bar Rules of the

District of Columbia Court of Appeals

EEE Selec cue abe.cteus 600060604 ssa nb nsb de R008 1

IN nib anedde sce eseseeseccccastsecssonse 1

slew 9S BRA BPPPTTTTTTTRT TTT eT 2

OPINIONS SELOW

The opinion of the District of Columbia Court of Appeals

was reported on January 11, 1984 (D.C. App. 1984) and is

printed in the Apendix “A”

The Order of the District of Columbia Court of Appeals

denying the Petition of Respondent below for Rehearing En

Banc was reported on April 2, 1984, and is printed in the

Appendix. |

The Reports and Recommendations of the Board of Pro-

fessional Responsibility are printed in the Appendix.

-” ee oe ee eee

JURISDICTION

The judgment of the District of Colunibia Court of

Appeals was entered in January 11, 1984. A timely petition

for Rehearing En Banc was filed on January 24, 1984. Juris-

diction of this Court is invoked under 28 U.S.C. Section

1257 (3).

vii

CONSTITUTIONAL PROVISIONS

STATUTES AND RULES INVOLVED

This case involves the Fifth and Sixth Amendments to the

Constitution of the United States; Section 11-2502, 13-

701(c) and 23-107 D.C. Code (1973), portions of sections 4,

of Rule XI of the Bar Rules of the District of Columbia Court

of Appeals; All of the relevant provisions are set for the

Appendix to this petition.

viii

STATEMENT OF THE CASE

Section 11-2502 of the District of Columbia Code vests

the District of Columbia Court of Appeals with jursidiction

over attorney discipline. To assist it in performing this statu-

tory assignment, the Court has established and delegated

to a Board of Professional Responsibility the authority to

hear complaints of attorney misconduct, to report its find-

ings and conclusions to the Court, and to make appropriate

recommendations in connection therewith.' The Board in

carrying out its Responsibility pursuant to its authority

appoints hearing committees to conduct evidentiary hear-

ings. With respect to the matters referred to it, a Hearing

Committee submits a report to the Board setting forth the

committee’s findings, conclusions, and recommen-

dations.?

Rule 10.4 of the Rules of the Board on Professional

Responsibility states that with respect to the conduct of

hearings by the Hearing Committee, that “Bar Counsel

shall have the burden of proving violations of the discipli-

nary rules by clear and convincing evidence.” Rule 12.6 of

the Board’s Rules states that “[w]hen reviewing the findings

of a Hearing committee, the Board shall employ a ‘substan-

tial evidence on the record as a whole test.” The Court of

Appeals have stated in opinions that under its own rules it is

“required to ‘accept the findings of fact made by the Board

unless they are unsupported by substantial evidence of

record, ... and must ‘adopt the recommended disposition

‘Rules Governing the Bar of the District of Columbia, Rule XI, Section

4(1).

*Rules Governing the Bar of the District of Columbia, Rule XI, Section

4(3)(c).

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

inconsistent dispositions for comparable conduct or other-

wise would be unwarranted.’ D.C. App. R. XI, Sec. 7(3); /n

Re Smith, 403 A.2d 296, 302-303 (D.C. 1979).”

In its decision issued on January 11, 1984, a three-judge

panel of the Court of Appeals for the District of Columbia

concluded that Petitioner herein, Melvin M. Burton, Jr., had

violated Disciplinary Rute DR 9-102(A) (now DR 9-103(A)

(failure to deposit funds of a client in a separate account)

and DR 1-102(A)(4) (dishonesty, fraud, deceit, or mis-

representation’”).*

The Court ordered that the Respondent be disbarred. The

Court's decision and order were consistent with the con-

clusions and recommendation of the Board on Professional

Responsibility which had confirmed the report of the hear-

ing committee in Case Nos. M-143-82; 83-492, and the

report of the Hearing Committee in case Nos. 224-79; 245-

81, where the Board on Professional Responsibility increase

a Hearing Committee's sanction of Four (4) years suspen-

sion to that of disbarment.

3Disciplinary Rule 9-102 (A) provides in pertinent part: DR9-102 Pre-

serving Identity of Funds and Property of a Client.

(A) All funds of clients paid to a lawyer or law firm, other than advan-

ces for costs and expenses, shall be deposited in one or more identifiable

bank accounts maintained in the state in which the law office is situated

and no funds belonging to the lawyer or law firm shall be deposited

therein...

Disciplinary Rule 1-102(A)(4) provides:

DR 1-102 Misconduct.

(A) A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.

The facts giving rise to the matter in Case No. 143-82;

83-492 are as following:

On February 9, 1979, pursuant to an Order of the Superior

Court in Civil Action No. 7965-77 RP, (Wilkins et al, v.

Anderson, et al), the Respondent was appointed as Trustee

to sign on behalf of the heirs, a Deed conveying real prop-

erty known as Lot 5, Square 397 as improved by premises

1535 9th Street, N.W., Washington, D. C.. Said premises

were sold for the sum of $18,000.00

The Court Order appointing the Respondent as Trustee

provided that the Respondent Trustee would convey the

property, receive the proceeds after the discharge of

emcumbrances, liens, costs, make appropriate adjustments

as provided in the Contract of Sales, dated, November 23,

1976, and pay the proceeds into the registry of the Court.

(Respondent's Exhibit #1). The Order neither provided for

bond nor required an accounting by the Office of the Audi-

tor, Superior Court of the District of Columbia.

The Respondent received the proceeds from the sale in

the amount of $12,777.83, and although not required,

opened another general Trust Account where said funds

were deposited. All subsequent funds received from the

transaction, were similarily deposited.

After receipt of the proceeds of the sale, Gladys Ander-

son, one of the beneficiaries of the proceeds to the

Respondent for re-imbursement with regard to the prop-

erty, a list of expenses incurred by her prior to the sale. Her

Attorney, also presented for re-imbursement in connection

with the property, expenses incurred by him prior to the

sale. In order to get guidance on what expenses were

proper for re-imbursement, the Respondent sort and

received the guidance of the Deputy Auditor Master.

3

After getting the guidance of the Deputy Auditor, the

Respondent was able to verify most of the expenses which

had been presented for re-imbursement, made re-imburse-

ment of the expenses verified, withdrew the Trustee Fee

allowed per the Rules of the Superior Court and was pre-

pared to deposit the remainder of the funds pursuant to the

Order of Appointment into the Registry of the Court.

That before Respondent could make the deposit into the

Register of the Court, the beneficiary, Gladys Anderson

presented to the Respondent, additional expenses for re-

imbursement. Being unable to resolve the conflict which

arose with respect to whether the expenses were proper for

re-imbursement, the Respondent after checking with the

Auditor's Office decided to file an accounting with the Audi-

tor’s Office so that that office could make the determination

as to which additional expenses could properly be re-

imbursed, prior to depositing the funds into the Registry of

the Court. Due to the delay in the Auditing process which

took approximately one and one-half year to complete end

because of the receipt of additional small sums of money

representing unauthorized payment made by the Title

Company and escrowed funds, the Respondent timely filed

with the Auditor's Office, Three (3) additional accounts,

reporting receipt of the additional funds.

That on or about November 14, 1979, while the Four (4)

accounts were pending with the Auditor's Office, for audit-

ing, when the Respondent was at Trial in the Superior Court

defending a malpractice suit against the Estate of a

deceased Attorney, the Respondent was approached at a

recess by members of the Pailin family who were not parties

to the on-going trial, who implored the Respondent to make

payment of funds that may have been due to Ms. Pailin so

4

that she would be released from jail. A Superior Court

Judge had ordered as acondition of Ms. Pailin’s release that

she deposit with the Court at least Seventy-five (75%) per-

cent of any funds due her, which she had refused to do. The

funds were due Ms. Pailin in another unrelated matter.

Because of the difficulty of the Trial in which the Respond-

ent was involved, the Respondent inadvertently caused to

be paid to the Pailen family, the sum of $3,300.00 from the

wrong trust account. The inadvertence occurred when the

Respondent did not discern at that time that a secretary

from his office, at Respondent's request, had brought to

court for Respondent to sign, a check from the wrong Trus-

tee account.

The Respondent did not discover that the check given to

the Pailins had not come from his other Trustee Account,

maintained at the same bank, until early December while

reviewing his bank statements.

After completion of the Auditing process, the Auditor's

Office requested proof of the amount of funds on deposit

for which the Respondent was accountable. The Respaond-

ent presented to the Auditor, proof that the funds for which

he was accountable were intact in the Trustee Account and

at the same time explained to that Auditor the inadvertence

which had occurred with respect to the Trustee Account.

He also explained that during the period since the inadver-

tence, the Respondent had utilized the Account as a regular

trust account and had deposited more than $40,500.00, into

the account. The above amount however, did not include

the deposit of $10,500.00, plus areturn of the Trustees fee in

the amount of $400.00. The Respondent, while Trustee was

accountable at most for $13,000.00, and ultimately account-

able for depositing unto the Registry of the Court, the sum

5

of $10,495.99, which funds were intact in the account when

the Respondent was requested to submit proof of the funds

on deposit and which amount was subsequently deposited

into the Registry of the Court.

That a hearing was held on the irregularity in handling the

account, and the Auditor Master’s Report filed with the

Court recommended that the Court,” consider referring the

matter to the Committee on Professional Responsibility”.

(Emphasis supplied)

That thereafter, the Court considered the Report of the

Auditor-Master and approved the Report without a referral

to the Committee on Professional Responsibility.

That on or about March 18, 1981, pursuant to an Order of

the Court ratifying the Auditor-Master’s Report, except for

the referral to the Committee on Professional Responsibil-

ity, the sum of $10,495.99 was deposited into the Registry of

the Court. The Court Order discharged the Respondent

from his fiduciary Responsibilities upon his timely making

the required deposit.

That at the Hearing before the Auditor Master on the

irregular handling of the account, Respondent in testifying

concerning the money he collected during the year 1975,

when asked by the Auditor, gave the answer, in excess of

$150,000.00.

That at the Hearing before the Hearing committee, the

Respondent presented testimony that he had practiced law

for 25 years, had a good standing at the Bar and that his

reputation for truthfulness and honesty was of the highest

quality.

Further, the Respondent presented testimony that there

had been no prior history of the Respondent ever having to

6

appear before a Hearing committee and that he had per-

formed invaluable community services without charge with

community-based organizations as Chairman and Board

Member of the Neighborhood Legal Services; Member of

the Advisory Council for the District of Columbia, Small

Business Administration; Chairman of the Board of Direc-

tors for Cromwell Academy, 4 private school! in the District

of Columbia: Co-Chairman of the 1972 Fund Drive for the

Washington Cathedral; Chairman of an Ad Hoc Committee

for the District of Columbia to make recommendations to

Minimum Wages for Hotel and Restaurant Workers: Vice-

Chairman, of the D.C. Coalition for Self-Determination; Co-

Chairman of the Committee to Support the Advisory Neigh-

borhood Councils (Now Advisory Neighborhood Commis-

sioners); commenced in his office, internships for third year

Howard University Law Students and served as counsel

without charge for indigents during the 1968 Civil disturb-

ances in the District of Columbia.

The facts showed that the Respondent had been active

poitically in the Republican Party for the District of .

Columbia where he served as Vice-Chairman of the D.C.

Republican Committee and that he has been involved in

fund raisings for the United Way, NAACP and the Urban

League.

Further, the facts showed that as an Attorney, the

Respondent's reputation in the Office of the Register of

Wills where he had handled more than 100 cases as either

Guardian, Guardian Ad Litem, Conservator, Executor or

the Attorney for others serving in those capacities was

impeccable, without there ever being any impropriety, de-

faults, summary removal, bond revocation or any question

concerning his handling of those matters. The facts showed

7

that the Office of Register of Wills on several occasions had

appointed the Respondent to clear up matters of Estate:

handled by other Attorneys; that the Respondent was hired

by an Attorney with the approval of the Office of Register of

Wills to handle an estate matter involving multi-litigation

including a malpractice claim against the Attorney's Estate

and other matters, netting to the Estate, funds that were

thought to be unobtainable and that as an Attorney, he

performed diligently and acted in a responsible manner

towards his clients.

The fact in Case No. 224-79; 245-81 are:

That during the course of the representation of Veterans

Administration in property matters, which representation

predated the year 1972, the Respondent, during the year,

1979, was requested by Veterans Administration as fore-

closure Attorney to foreclose on a loan which was held by

Veterans Administration on which the makers, Nathaniel

and Loretta Pailin had defaulted.

That as a result of said foreclosure, on or about July 6,

1978, the Respondent received a check from the settlement

company, District Realty Title Insurance Corporation in the

amount of $26,378.16. That said funds (less a deduction of

$1,505.90, not here in question) were placed in “Trust

Account” No. 3-045-80-3, with the National Bank of

Washington.

After depositing the check, on or about July 15, 1978, the

Respondent paid to Veterans Administration, the sum due it

of $16,639.68 and presented to Veterans Administration a

preliminary distribution statement pending a complete dis-

tribution which would show in what manner the funds after

payment to Veterans Administration were to be distributed.

8

That subsequently, because of delay, due to inability to

locate Mr. & Mrs. Pailin, and the Court ordered delay in

payment to Mrs. Pailin, Mrs. Pailin received the funds due

her. That the amount of funds due Mrs. Pailin was based

upon a balance statement prepared December 15, 1979,

showing expenditures made in this matter. That the Re-

spondent had made efforts to locate Mr. Pailin to pay him

but had been unsuccessful in locating him and he had not

been paid. That the Respondent may or may not have been

told of the efforts made by Veterans Administration to

locate Mr. Pailin and the subsequent location of Mr. Pailin

by Veterans Administration.‘

That subsequent to the payment to Veterans Adminis-

tration, the Respondent made other payments by checks

from the Trust Account No. 3-0 45-803, which account was

not specifically marked as a Veteran Administration

Account, which were not recognizable by Mr. Fallon, the

representative from Veterans Administration. That Veter-

ans Administration had no concern with expenses con-

nected with the foreclosure on said property; that there may

have been legal and other expenses connected with the

foreclosure as well as settlement expenses with the pur-

chaser and that Veterans Administration looked orily for

payment of its own lien and for a statement of final

distribution.

That with reference to the checks written after the receipt

of the proceeds of the foreclosure sale representing pay-

ments made from the Trustee Account, the representative

‘Upon learning of the address of Mr. Pailin from Veterans Administra-

tion, funds due Mr. Pailin were remit'ed to him on December 15, 1982.

(Petition for Hearing En Banc page 9).

9

Administration could not identify them as being inappro-

priate payments, and that those payments were of no par-

ticular concern to Veterans Administration because the

agency had noconcern of daily activities of the Respondent

for property which no longer owner by it.

10

REASON FOR GRANTING THE WRIT

A. Where a new definition is adopted for Disciplinary Rule

9-102(A) and the prescribed sanction thereunder is

disbarment, to apply the standard and sanction to

conduct which occurred prior to the adoption of the

new definition is a violation of the Fifth Amendment to

the United States Constitution and has Ex Post Facto

implications. ..

Bar Counsel charged the Respondent with a violation of

Disciplinary Rule 9-102(A).

In proof of his case, Bar Counsel neither called nor pre-

sented witnesses with respect to the charge but relied upon

the Exhibits which were Bank Statements and Cancelled

Checks of the Respondent, admitted in evidence over the

objection of the Respondent.

Inhis opening statement, Bar Counsel stated that “Respond-

ent’s unauthorized withdrawal from the trust account for

purposes and uses totally unrelated to the trust violated

Disciplinary Rule 9-102(A), because he failed to mention

the trust proceeds in a trust account as required by that

disciplinary rule.”

At the Conclusion of the Hearing, the Chairman in

addressing himself to Bar Counsel, stated, “As! understand

it, one of the disciplinary rules which Bar Counsel contends

has been violated here is Disciplinary Rule 9-102, which is

styled, preserving identity of funds and property of a client,

is that correct?”

Bar Counsel Answered, “That's correct”.

Despite reliance upon and defense of the charge of

Commingling by the Respondent, after close of the hearing,

Bar Counsel in his Post Hearing Brief informed the Hearing

11

Committee and the Board for the first time that it had pro-

ceeded on the theory that Respondent’s Misappropriation,

conversion and commingling of trust funds violated Disci-

plinary Rule 9-102(A).” (See Bar Counsel’s Post Hearing

Brief, pg. 4)

In other cases, misappropriation as distinct from com-

mingling has been charged under DR 1-102(A)(4). See, e.g.,

In the Matter of Burra, 423 A 2d 181, 183, 186-187 (D.C. App.

1980) (en banc). Bar Counsel did not in the charge in M-

143-82, intend it to be more than commingling and indi-

cated as much upon inquiry by the Chairman of the Hearing

Committee. (Anderson vs. Burton).

Bar Counsel conceded the charge of commingling only,

when he asserted at page 3 of his Opposition to the Petition

En Banc, “In any event, although Respondent was not

charged with DR 1-102(A)(4) in No. M-143-82, (hereinafter

the Anderson case), he was charged with DR 1-102(A)(4) in

No. M-83-192 (hereinafter the Pailin case”, “---.”

In June, 1983, in /n Re Harrison, 461 A.2d 1034 (D.C.

1983), the Court below prescribed for the first time in this

jurisdiction, the definition and sanction which is to be ap-

plied to Misappropriation cases with the newly numbered

Disciplinary Rule, 9-103;

The Court below in adopting the findings of the Board on

Professional Responsibility has fostered a new concept

which not only allows Bar Counsel to raise Post Hearing,

the level of a charge against a Respondent and a charge

which the Respondent had no opportunity to defend but the

Court’s findings, further allowea the Board of apply to defi-

nition which was newly adopted and not in effect at the time

of the alleged misconduct compiained of herein.

The application by the Court of the newly adopted defini-

12

tion which should not have been applied to the Respondent

inured to the prejudice and detriment of the Respondent

and was violative of his due process rights and equal pro-

tection of the law.

The application of the Harrison definition to the Pailin

case (No. 83-492), even if that case is supported by substan-

tial evidence, allowed for an Ex Post Facto application ofa

Rule not in effect at the time of the alleged misconduct and

is a violation of the due process requirement of the Fifth

Amendment.

In/n re Ruffalo, 390 U.S. 544, 551 (1968), this court held

that disciplinary proceedings against attorneys “are adver-

sary proceedings of a quasi-criminal nature...” Because

such proceedings may result in “a punishment or penalty

imposed on the lawyer...[h]e is accordingly entitled to

procedural due process...” Ruffalo, supra, 390 U.S. at 550.

Thus, the privilege of practicing law is noi “a matter of grace

and favor’, but rather a right that cannot lightly or capric-

iously be taken from an attorney; the power to withdraw that

right “ought always to be exercised with great caution”.

Charlton v. F.T.C., 543 F.2d 903, 906 (D.C. Cir. 1976), citing

Wilner v. Committee on Character and Fitness, 373 U.S. 96,

102 (1963); Ex Parte Wall, 107 U.S. 265, 288 (1883); and Ex

Parte Garland, 72 U.S. (4 Wall) 333, 379 (1867).

It is submitted that the issue of whether the application of

the newly adopted Harrison definition to the instant case

denied the Respondent due process required in these mat-

ters and whether the application of the Standard had ex

post facto implications are sufficiently important in the

handling of disciplinary matters to merit this Court's

attention.

13

B. When anewly adopted sanction for disciplinary Rule

9-102(A) is that of disbarment and the sanctions

imposed by different panels of the Court ranges from

suspensions to disbarment for similar conduct, the

disparity in the imposition of sanctions is a violation

of the Fifth Amendment.

In June, 1983, one panel of the Court in the case of /n Re

Harrison, 461 A.2d 1034 (D.C. 1983), announced the defini-

tion and sanction for misappropriation which is to be ap-

plied in this jurisdiction. Until that time, there was no clear

cut definition of misappropriation for the District of Colum-

bia as corroborated by an article published by Bar Counsel

which appeared in the “Lega/ Times” dated, February 6,

1984, wherein Bar Counsel stated that the Bar had asked —

the Court of Appeals to announce that in the future, misuse

of client’s funds will resuit in disbarment. |

The ruling by that panel of the Court in adopting the

Harrison definition, ordered by the imposition of asanction

less than disbarment, yet another panel of the Court,

imposed a sanction in the case at bar end and in one other

case, (In Re McLean No. M-142-82, January 11, 1983) which

was at odds and in conflict with the Harrison sanction as

well as the sanction imposed in /n Re Cefarratti, No. M

140-82, decided June 28, 1983 and in/n Re Hines, Docket

Nos. 194-80 and 447-79 (BPR October 28, 1982). The effect

of these Rulings has resulted in an inharmonious ruling

from difterent panels of the Court and a review by this Court

is needed to clarify for the bar at large the applicability of

the Harrison definition and the imposition of sanctions with

respect theretc.

14

Moreover, except for the cases of /n the Matter of

Quimby, 123 U.S. App. D.c. 273, 359 F.2d 257 (1966), in

which this Board and Court did not participate, the case of

In the Matter of Burka, 423 A 2d 181 (D.C. App. 1980) (en

banc), where the Respondent was charged with and found

to have violated DR 9-102 (A) and (B) and DR 1-102 (A) (4)

and (5), where funds were withdrawn from an Conservator-

ship Estate Account and/n Re McLean, No. M 142-82, April

11, 1983, where the Respondent misappropriated funds

from negligence and workmen’s compensation cases, all

other White Attorneys charged with similar conduct as the

Respondent have received lesser sanctions.

It is particularly noticeable that the Respondents in the

foregoing matters, all of whom were White. received lesser

sanctions and those sanctions should be contrasted with

the sanction imposed upon the Respondent herein, who is a

Black Attorney. (In The Case of /n Re Newsome, No. D

34-79 (D.C. November 21, 1979) who is Black, disbarment

arose because of a conviction in the United States District

Court involving funds from a negligence case).

Moreover, in light of the Court's opinion in/n Re Harrison,

supra, where the Court announced a definition for misap-

propriation for the first time in this jurisdiction it would

appear that along with the disproportionate sanction im-

posed upon White Respondents for similar violations, that

the Court applied its definition of misappropriation retroac-

tively and inappropriably applied the Harrison definition to

conduct which was not so clearly defined at the time of the

occurrence.

These factors warrant the Cou’t giving this matter its

attention by granting the request for a Writ of Certiorari.

15

C. Where the Board on Professional Responsibility uses

evidence of a prior adjudicated disciplinary proceed-

ing to assist it in reaching a determination in a new

and unrelated proceeding, the doctrine of estoppel is

applicable and the due process requirement of the

Fifth Amendment is violated.

The decision by the District of Columbia Court of

Appeals appears to sanction the right of Bar Counsel to

bifurcate proceedings and proceed at its discretion to elicit

testimony from a Respondent on a matter which it did not

charge, when it could have brought both charges against

the Respondent at the same time.

In the Anderson matter the Respondent was cross-

examined extensively on the Pailin Matter, which matter

was not charged in that proceeding by Bar Counsel,

although Bar Counsel had complete and total knowledge of

the circumstances of that matter.

The following portions of the Transcript of the cross-

examination by Bar Counsel amply demonstrates this fact.

o

And you wrote the check to a former client, Mrs.

Pailin?

Well, Mrs. Pailin was not a client of mine.

Oh, | understand, | withdraw that question?

But, | wrote it as a result of a transaction that evolved.

You owed her the money?

Yes sir.

You owed her $3,300.00 and maybe some more

money at the time that you wrote her this check inad-

vertently, is that correct?

A. Yes. .

Or>Oo>roO>

16

o> oO

A.

Q.

A

And you wrote that check on the 14th day of

November, is that correct?

Yes.

You testified that when you wrote the check to her

inadvertently, that you really didn’t know that you

didn’t have enough funds in the other account?

No, sir, | didn’t say | didn’t know. | said at the time |

didn’t know whether | did or did not, | just didn’t know.

All | could fathom on at that time was writing the

check. Mentally, you know, you've gone through

things in a Court recess, you're thinking, and all! can

remember is trying to. . .| know | put in 5,000 in that

account in a 15-day period or so, | knew it was 4,000

or 5,000 and | just thought that it might have been

there.

Did you owe Mr. Nathaniel Pailin as a result of your

transaction?

Yes.

Had you paid him at the time you had wrote this check

to Mrs. Pailin?

| have not paid Mr. Nathaniel Pailin because | don’t

know where Mr. Nathaniel Pailin is.

Did you...

Yes, | wrote Mr. Nathaniel Pailin a letter.

CHAIRMAN MILLER: Just a second, let Mr.

McClendon ask the question before you answer.

This is your Exhibit #2, would you read the last

paragraph?

First of all, would you give the Committee the date of

this letter?

The date of the letter is September 17th, 1979, and it

says, “Finally, | understand that the delay in the dis-

17

> O

A.

tribution of the balance of tlhe foreclosure proceeds

are occasioned by the inability to locate Mrs. Pailin’s

husband. I've taken the liberty of contacting the

Department of the Army, Retired Personnel Locator,

about Mr. Pailin. That office carries his address as

follows: S.F.C. Nathaniel Pailin, Retired, 809 West

232nd Street, Apartment 2'B, Torrance, California

90502. Please do not hesitate to call me if any further

questions arise in this matter.”

Did you make any efforts to contact Mr. Pailin?

Yes, sir. On two occasions | wrote letters; only one of

which came back. In the meantime, | also picked up

the telephone one day in an effort to try to get a

number for him at that address; was unable to do so.

You received this document, apparently from the

Department of Army; did you ever contact the De-

partment of Army to see whether or not they had a

more recent address for Mr. Pailin?

No, this from the Office of the United States Attorney.

The question which should be considered by this Court,

is to what extent should this procedure be permitted and

does this procedure, if permitted, guarantee the Bar at large

the fairness dictated by the Due Process Requirement in

Disciplinary Proceedings.

D. Where Disciplinary Rule, Chapter 8, Section 3(1)C

grants a Respondent a right to challenge hearing

panel members, it is a violation to the due process

clause of the Fifth Amendment and the Sixth Amenda-

ment rights of a Respondent to deny him the right to

conduct a Voir Dire of the hearing panel members.

18

Disciplinary Rule, Chapter 8, Section 3(1)C, provides a

following:

“The chairman shall then identify himself and

the other members of the Committee and in-

quire if there are challenges to any member of

the Committee”.

Chapter 8, Section 3(1)D, provides as following:

“Should challenges result in the departure of

the Chairman---”

Implicit within these Rules is the requirements that

information may be gained from the panel members

through voir dire examination which would provide an intel-

ligent basis for the exercise of challenges. Despite having

information and knowledge of the panelist backgrounds

and assuming that investigation of their background was

had, the information gained through the investigation is

meaningless without the opportunity too further explore

the leads derived through investigation, which may lead to

the challenge of a panel member.

lf the Respondent is to obtain full knowledge of all rele-

vant and material facts that might bear on the disqualifica-

tion of a panel member, then voir dire examination of the

panel members is essential, so that, the Respondent may

fairly and intelligently exercise the right to challenge.

It has been said that the ultimate function of voir dire

examination is to explore the nuiances of conscience to

determine whether a prospective person is able to partici-

pate fairly in the deliberations on the issues, confining his

judgment to the facts presented. Crawford v. Bounds, (CA4

NC) 395 F.2d 297.

19

The denial of the Respondent's right to voir dire examina-

tion of the panel members violated not only the Rules of

Procedure adopted by the Board on Professional Respon-

sibility but it also violated the District of Columbia Code at

§ 13-701 and Section 23-107.

District of Columbia Code, Section 13-701(C), provides:

C. This section does not deprive a person of the right to

challenge the array or poll of a panel returned, or to

have all or any of the jurors examined on their Voir

Dire before the list is prepared to determine their

competency to set in a particular case.

The right of challenge has its source in the common law,

and has always been an essential ingredient of a jury trial

and has been codified in the D.C. Code at 13-701 and

23-107. The District of Columbia Court of Appeals, no

doubt had in mind, when it promulgated the rule which

allows for a challenge, to also allow voir dire examinations

of the panel members so as to insure that an accused

Respondent would have a fair and impartial hearing that is

mandated by case law in matters of this type. See /n Re

Thorup, 432 A 2d 1221 (D.C. 1981), citing Chariton v. Fed-

eral Trade Commission, 177 U.S. App. D.C. 418, 543 F2d

903, (1976).

This Court obviously does not want to curtail this right

and therefore this Court should make a determination con-

cerning the meaning and implication of the Disciplinary

Rule, Chapter 8, Section 3(1)C, so as to afford an optimum

of due process in Disciplinary Proceedings.

E. Where the Court has been requested to consider re-

ferring a matter concerning the conduct of a Court

appointed Trustee to the Board on Professional

20

Responsibility, but does not do so, the Board on Pro-

fessional Responsibility does not possess quasi-

judicial authority to empower it to conduct a hearing

on the conduct of the court appointed trustee.

Section 4(3)(a) of Rule XI of the District of Columbia

Court of Appeals for the Governance of the Bar states:

(3) The Board shall have the power and duty:

(a) to consider and investigate any alleged grounds

for discipline or alleged capacity of any attorney

called to his attention, or upon its own motion, and to

take such action with respect thereto as shall be

appropriate to effect the purposes of these Discipli-

nary Rules.

Under this Rule, it appears that a referral by the Superior

Court or any person concerning the conduct of an attorney

is not necessary to give the Board jurisdiction to consider

and investigate an attorney's conduct.

The Auditor-Master’s Report herein contained a recom-

mendation that the Court consider the advisability of refer-

ring the matter to the Office of Bar Counsel for appropriate

action by Order dated, March 11, 1981, the Superior Court

ratified the Auditor-Master’s Report dated February 12,

1981.

In ratifying the Auditor-Master’s Report, the Court did not

refer the matter to Bar Counsel and made no reference to

the Auditor-Master’s recommendation of referral.

The Board found that:

“In our view, neither we nor the Board of Professional

Responsibility is precluded from reviewing respondent's

conduct because the court did not specifically refer the

matter to the Office of Bar Counsel. The Court, in ratifying

21

the Auditor-Master’s report, did not purport to make a

determination whether Respondent breached his fidicuary

duty as trustee. The court's order is silent with regard to

whether Respondent's conduct warranted a referral to the

Office of Bar Counsel, and no inference properly can or

should be drawn from that silence. Thus, the court’s action

in this regard does not preciude this Committee from

determining whether Respondent's conduct was in viola-

tion of the Code of Professional Responsibiiity. Nor does

the court's action constitute a determination that Respond-

ent breached his duties as trustee.”

Thé Superior Court of the District of Columbia has gen-

eral equity powers in matters pertaining to Trustees. D.C.

Code Section 11-921, 1973 Edition, as Amended. These

powers apply to the apoointment of Trustees, their removal,

discharge of Trustees and the settlement of their accounts.

The Court has supervisory control over any matter which

concerns the trust, its Administration, its preservations and

its disposition and any other matter wherein Trustees are

affected in the discharge of their duties toward the trust.

Therefore, when the Court has exercised its supervisory

powers and ordered a Trustee discharged as in the instant

case, without referring the matter to the Board as recom-

mended, the Court has passed upon the performance of the

Trustee toward the trust and the Board may not second

guess the Court without subverting the Court's authority.

That the Court did not purport to make a determination of

whether the Respondent breached his duty as the board

contends is untenable, so is the contention that no infer-

ence may be drawn from the silence of the Court on the

matter of the referral, in its Order of Ratification of the

22

Auditor-Master’s Report. To adopt the aforesaid conten-

tions is paramount to charging the Court with negligence or

misfeasance. in fact, the Court having before it the request

to consider referral, giving due interpretation to the appoint-

ing Order and its requirement that the Respondent pay the

funds into the Registry of the Court, observed that the

duties and responsibilities of the Respondent had been

fulfilled and saw no need to refer the matter to Bar Counsel.

Moreover, submission of the report to Auditor-Master tor

auditing purpose was surplusage.

The presumption prevails that the Court did its duty. In

fact, the board impugned the integrity and sagacity of the

Court. For the Court below to have affirmed the findings of

the Board concerning the non-referral, undercuts the

authority of the Superior Court and this Court's review is

warranted in order to preclude the decision from having far

reaching consequences.

F. Where the Board on Professional Responsibility

makes a finding that substantial evidence was pres-

ent to support its findings but the evidence it con-

sidered was not clear and convincing, the Board on

Professional Responsibility has not afforded a

Respondent due process as required in disciplinary

proceedings.

in Bar Docket No. 224-79, Appeal No. 83-492, Bar Coun-

sel did not show by clear and convincing evidence that

misappropriation had occurred. This conclusion is true,

despite the introduction of some checks from the trust

account with payees name which appeared to be

indecipherable.

23

In substantation of this conclusion the Veterans Repre-

sentative testified that he saw or could find no evidence of

wrong doing.

Mr. Fallon, the Veterans Administration Representative,

stated that the duties of the Trustee were to pay off the liens,

take out the expenses of the foreclosure, and distribute the ,

surplus top the mortgage holder and that was all that was

required. Further that Veterans Administration was paid

and Mrs. Pailin was paid; the Respondent was having diffi-

culty finding Mr. Pailin and that he did not handle the por-

tion of the case relating to advising the Respondent of the

address for Mr. Pailin.

Further he offered testimony to the effect that:

“Again, | don't see where that would be of a particular

concern to the Veterans Administration, other than

ultimately to know about it, because we feel that we

have no obligation to know the terms of the Deed of

Trust in which we are the holder and have appointed a

substitute trustee have been carried, but we would

not expect Mr. Burton to tell us his daily activities in

connection with the property that did not belong to us

any more”.

The Hearing Con:mittee was persuaded by this testimony

because it concluded:

“1. That the case relied upon by Bar Counsel, In the

Matter of Quimby, |11, 359 F2d (D.C. Cir 1966) went far

beyond the bare bones financial records of the

accused and that in this matter the evidence against

the Respondent is limited to the bank records of a

‘particular trust account with no testimony.

24

“2. That there was no other evidence showing the

ultimate use or purpose of the withdrawals from the

trust account causing it to be less than the amount

due to the Veterans Administration and the Pailins.

“3. The individuals who received checks drawn on

the bank account were not called as witnesses.

“4. No testimony is in the record to show to what

extent the funds were used for the Respondent's per-

sonal use.

“S. There was no testimony or other evidence in the

form of an analysis of the Respondent's client's

accounts on which to evaluate the extent of

Respondent's misuse of client's funds and

“6. The evidence herein consist primarily of the

barebone bank account records, which standing

alone, do not permit an informed judgment.

The Court adopted the findings of the Board without

comment with respect to these findings. In a matter of

disbarment with rudiment of due process and equal protec-

tion of the law under the Constitution, whose livelihood is

being deprived, require a greater standard upon review

than merely adopting the findings based upon a substantial

evidence test.

This Court's attention should be directed to the standard

of review required of the Court in considering disciplinary

proceedings.

G. In reviewing a disciplinary proceeding, the due proc-

ess provision of the Fifth Amendment requires both

the Board on Professional Responsibility and the District of

Columbia Court of Appeals to utilize a standard greater

25

than the substantial evidence test in order to support its

findings. | |

Matters of Attorney discipline are, the ultimate responsi-

bility of the District of Columbia Court of Appeals. /n Re

Dwyer, 399 A.2d 1, 11-12 (D.C. App., 1979) Citing Sections

11-2502 and 11-2503(b), D.C. Code, 1973; (F Powell v.

Nigro, 543 F. Supp. 1044, 1046 (D.C. 1982). This responsibil-

ity cannot be relegated to the Board of Professional

Responsibility by delegating it to the Board and then allow

the Court to utilize a standard of review similar to that used

when reviewing a decision of an administrative agency.

In the case of /n Re Colson, 412 A.2d 1160, 1175 (D.C.

App. 1979), the dissent therein demonstrated the aforesaid

view when it was stated, “the basic decisional responsibility

for the sanction to be imposed in a disciplinary proceeding

should rest upon the judges of a jurisdiction’s highest

Court, rather than upon the members of a Court-created

disciplinary body. After all, our Board of Professional

Responsibility is not akin to an Administration Agency”.

(Emphasis Supplied).

In the instant case, the District of Columbia Court of

Appeals used a standard based upon the “substantial evi-

dence test.

In Addington v. Texas, 441 U.S. 418, 423 (1979, this Court,

citing its earlier decision in In Re Winship, 397 U.S. 358

(1970), stated that “a standard of procedure is embodied in

the Due Process Clause”, and that the function of such a

standard is to “instruct the fact finder concerning the

degree of confidence our society thinks he should have in

the correctness of factual conclusions for a particular type

adjudication”.,

The Court in Addington described as one of the three

levels of standard of proof, thusly:

“The intermediate standard. ..usually employs

some combination of the words ‘clear,’ ‘cogent,’

‘unequivocal,’ and ‘convincing,’. .. One typical

use of standard is in civil cases involving allega-

tions of fraud or some other quasi-criminal

wrong doing by the defendant. The interest at

stake in those cases are deemed to be more

substantial than mere loss of money and some

jurisdictions accordingly reduce the risk to the

defendant of ‘iaving his reputation tarnished

erroneously by increasing the plaintiff's burden

of proof. Similarly, this Court has used the

‘clear, unequivocal and convincing’ standard of

proof to protect particularly important individ-

ual interests in civil cases. ..(deportation)

...(denaturalization)...” 441 U.S. at 424-425.

In/n Re Ruffalo, 390 U.S. 544, 551 (1968), this Court held

that disciplinary proceedings against attorney’s “are adver-

sary proceedings of a quasi-criminal nature...” Because

such proceeding may result in “a punishment or penalty

imposed on the lawyer...[h]je is accordingly entitled to

procedural due process. . .” Ruffalo, supra, 390 U.S. at 550.

Thus, the privilege of practicing law is not “a matter of grace

and favor’, but rather a right that cannot lightly or capri-

ciously be taken from an attorney; the power to withdraw

that right “ought always be exercised with great caution”.

Charlton v. F.T.C., 543 F2d 903, 906 (D.C. Cir. 1976), citing

Wilner v. Committee on Character and Fitness, 373 U.S. 96,

102 (1963); Ex Parte Wali, 107 U.S. 265, 288 (1983); and Ex

Parte Garland. 72 U.S. (4 Wal!) 333, 379 (1867).

27

Applying this Court’s decision in Ruffalo, and Addington

to Attorney disciplined proceedings, | submit that a sub-

stantial evidence test does not pass constitutional muster.

Given that such discipline imposes a punishment or penalty

on the lawyer, (Ruffalo; supra), and taking into considera-

tion that disbarment, that is, the taking away of the liveli-

hood and the right to practice law, great caution ought be

exercised when dealing with a curtailment of that right.

(Chariton v. F.T.C., Supra). Accordingly, when reviewing

findings of the Board by the District of Columbia Court of

Appeals nothing less than utilization of the “Clear and con-

vincing” standard can be said to provide due process.

28

CONCLUSION

For all of the reasons sci forth herein, Petitioner request

that this Court grant this Petition and issue a Writ of Certio-

rari to the District of Coluinbia Court of Appeals.

Respectfully submitted,

Charles A. Brady

1343 Pennsylvania Avenue, S.E.

Washington, D. C. 20003

332-7600

Dated: May 2, 1984

29