Petition — Alexander v. Board of Professional Responsibility of the District of Columbia Court of Appeals

OOO eee

83 -1283 [Ottcs- Supreme Cours US.

Court,

FILED

FEB @& ee.

ee

ALEXANDER L. STEVAS,

CLERK

re

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

HARRY TOUSSAINT ALEXANDER, A Member of the

Bar of the District of Columbia Court of

Appeals,

Petitioner,

Vv.

BOARD ON PROFESSIONAL RESPONSIBILITY of the

District of Columbia Court of Appeals,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

JEWEL LAFONTANT*

EUGENE B. GRANOF

LESTER R. GUTMAN

Vedder, Price, Kaufman,

Kammholz & Day

1919 Pennsylvania Avenue, N.W.

Suite 500

Washington, D.C. 20006

(202) 828-5040

4 of Record

QUESTIONS PRESENTED

l. Whether in a quasi-criminal

proceeding which results in disciplinary

action against a member of the Bar, the

Due Process Clause permits a court to

suspend an attorney from the practice of

law merely on the basis of substantial

evidence?

2. Whether, in the instant case

the evidentiary basis for ordering

Petitioner to be suspended from the

practice of law for 90 days was so inad-

equate that such a suspension would

effectively deprive Petitioner of

liberty or property without the due pro-

cess of law mandated by the Fifth

Amendment.

PARTIES

The parties to the proceeding in

the District of Columbia Court of

Appeals -- the court whose judgment is

sought to be reviewed -- were:

Harry Toussaint Alexander, 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).

OPINIONS BELOW

JURISDICTION

TABLE OF CONTENTS

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE WRIT

A. Due Process Requires

That Disciplinary

Orders Against Attor-

neys. Must Be Based On

A Higher Standard Of

Proof Than Substantial

Evidence

B. The Evidentiary Basis

For Petitioner's Sus-

pension Is So Inade-

quate That The Suspen-

sion Violates Due

Process

CONCLUSION

24

24

36

43

TABLE OF CONTENTS

(Continued)

APPENDIX (Separate Volume)

Section a -- Decisions Below And

Other Material Portions Of The

Record

Opinion Below of the

District of Columbia

Court of Appeals

Order of the District

of Columbia Court of

Appeals Denying Rehear-

ing En Banc

Report of Hearing Com-

mittee Number Ten of

the Board on Profes-

sional Responsibility

Report and Recommenda-

tions of the Board on

Professional

Responsibility

Excerpted Portion of

Respondent's (Petitioner

Herein) Brief to District

of Columbia Court of

Appeals

Excerpted Portion of

Respondent's (Petitioner

Herein) Brief to the

Board on Professional

Responsibility

-ii-

TABLE OF CONTENTS

(Continued )

Excerpted Portions of

the Hearing Transcript

of Hearing Before Hear-

ing Committee Number

Ten in Bar Docket No.

179-80 (Murphy Complaint )

and Bar Docket No. 189-80

(Fisher Complaint )

Letter of December 22,

1980 from Mr. Alexander

to Bar Counsel

McIntyre (August 25,

1980) Transcript

Revercomb (September 3,

1980) Transcript

Section b -- Relevant Consti-

tutional, Statutory and

Regulatory Provisions

-iii-

TABLE OF AUTHORITIES

Cases; Page

Addington v. Texas, 441 U.S.

418, 423 (1979) a ae re a a

28, 29

31

Charlton v. F.T.C., 543 F.2d

a. ee cieie GEls APTOls « 2 « « @a> oe

Consolidated Edison Co. v.

Labor Board, 305 U.S. 197,

A ae ee ae +

Zonsolo v. Federal Maritime

Commission, 383 U.S. 607,

Dn Terns 5 » «¢ @ 0 6.8 8s 0 « “0s a

Ex Parte Garland, 72 U.S.

[oe meen, saa, ote (2667) . « © « «. &o

Ex Parte Wall, 107 U.S. 265,

ee i. «6° (5° g¢ @ wicwes 6 + » Sate an

In re Colson, 412 A.2d 1160,

have test. App. 1979). « «© we we eo o

In re Dwyer, 399 A.2d l,

Bese (eeG. App. 1979) « «+ w= « SS

In re Ruffalo, 390 U.S. 544,

6 I a ee eee ee

31

In re Smith, 403 A.2d 296,

302-303 (D.C. 1979) . «. «© «© «© « «@ 7

-iv-

TABLE OF AUTHORITIES

(Continued)

In re Winship, 397 U.S. 358

(1970)

Mathews v. Eldridge,

San, dos (iP r0)

424

os

Powell v. Nigro, 543 F. Supp.

1044, 1046 (D.D.C.

Santosky v. Kramer,

745, 754-757 (1982)

1982

)

455 U.S.

Schware v. Board of Bar

Examiners, 353 U.S.

(1957)

232

Thompson v. City of Louisville,

362 U.S. 199 (1960)

Wilner v. Committee on

Character and Fitness,

96, 102 (1963)

Statutes:

28 U.S.C. § 1257(3)

D.C. Code 1973

§ 11-2502 ....

§ 11-2503(b)

-V-

373 U.S.

28,

34

28,

:

42

36,

38

25

29

29

38

TABLE OF AUTHORITIES

(Continued)

Pub. L. 91-358 .. « « « « «

64 Stat. 521, § 121 . w 2 «

Other:

Rules of the Board on Profes-

sional Responsibility .of the

District of Columbia Court of

Appeals

Chapter 10 . . « « « © e «

Cmepter 12. «© « «© © © «©

Rule 10.4 of the Rules of the

Board on Professional

Responsibility .....«.. -»

Rule 12.6 of the Board on Pro-

fessional Responsibility ..

Rule XI of the Bar Rules of

the District of Columbia

Court of Appeals

oe Oe 6 us 6 6 es © foie

Be ge Ne ee ae oer ar

(1) R

; BEBE? 6 «a & = « * -

D.C. App. R. XI, Section 7(3)

-vi-

> >

OU > &

~

TABLE OF AUTHORITIES

(Continued)

Joint Committee of Professional

Discipline of the Appellate

Judges Conference and the Stand-

ing Committee on Professional

Discipline of the American Bar

Association, Standards for Lawyer

Disciplinary and Disability Pro-

cedures (February, 1979)

Sten@ara 8.40 ..-e«sevss6 es 32

Stan@ard $8.49 ..«escseeees 34

-vii-

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

HARRY TOUSSAINT ALEXANDER,

A Member of the Bar of the

District of Columbia Court of Appeals,

Petitioner,

v.

BOARD ON PROFESSIONAL RESPONSIBILITY

District of olsuasie Goins of Appeals,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Harry Toussaint Alexander,

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

aQea

case on September 7, 1983, petition for

rehearing en banc denied on December 14,

1983.

OPINIONS BELOW

The opinion of the District of

Columbia Court of Appeals is reported at

466 A.2d 447 (D.C. App., 1983) and is

printed in the Appendix hereto at

la-12a.2/ The order of the District of

Columbia Court of Appeals denying the

petition of Respondent below for rehear-

ing en banc is printed in the Appendix

hereto at l3a-l4a. The Report and

Recommendation of the Board on

Professional Responsibility of the

1/ " a" references are to the pages

of the separately bound Appendix

which accompanies this Petition.

=3-

District of Columbia Court of Appeals is

printed in the Appendix hereto at

28a-47a. The Report of Hearing

Committee Number Ten of the Board on

Professional Responsibility is printed

in the Appendix hereto at 15a-27a.

JURISDICTION

The judgment of the District of

Columbia Court of Appeals was entered on

September 7, 1983. A timely petition

for rehearing en banc was denied on

December 14, 1983. Jurisdiction of this

Court is invoked under 28 U.S.C.

§ 1257(3).

age

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED

This case involves the Fifth

Amendment to the Constitution of the

United States; §§ 11-2502 and 11-2503(b)

of the D.C. Code (1973), Pub.L. 91-358,

84 Stat 521, § lll, portions of §§ 4, 5

and 7 of Rule XI of the Bar Rules of the

District of Columbia Court of Appeals;

and portions of Chapters 10 and 12 of

the Rules of the Board on Professional

Responsibility of the District of

Columbia Court of Appeals. All of the

relevant provisions are set forth in

Section b of the Appendix to this

Petition.

=§-

STATEMENT OF THE CASE

Section 11-2502 of the District of

Columbia Code vests the District of

Columbia Court of Appeals with juris-

diction over attorney discipline. To

assist it in performing this statutory

assignment, the court has established a

Board on Professional Responsibility to

hear complaints of attorney misconduct,

to report its findings and conclusions

to the court, and to make appropriate

recommendations in connection

therewith.2/ In turn, the Board is au-

thorized to, and does, appoint hearing

committees to conduct evidentiary

2/ Rules Governing the Bar of the

District of Columbia, Rule XI,

Section 4(1).

=£-

hearings. With respect to the matters

referred to it, a Hearing Committee will

submit a report to the Board setting

forth the committee's findings, con-

clusions, and recommendations.2/

Rule 10.4 of the Rules of the Board

on Professional Responsibility states,

with respect to the conduct of hearings

by the Hearing Committee, that “Bar

Counsel shall have the burden of proving

violations of the disciplinary 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

3/ Rules Governing the Bar of the

District of Columbia, Rule XI,

Section 4(3)(c).

oFe

employ a ‘substantial evidence on the

record as a whole’ test." So also, as

the Court of Appeals stated in its

opinion in this case, under its own

rules it is “required to ‘accept the

findings of fact made by the Board

unless they are unsupported by substan-

tial evidence of record, ...* and must

‘adopt the recommended disposition of

the Board unless to do so would foster a

tendency toward inconsistent disposi-

tions for comparable conduct or other-

wise would be unwarranted.' D.C. App.

R. XI, Sec. 7(3); In re Smith, 403 A.2d

296, 302-03 (D.C. 1979)." (2a).

In its decision issued on September

7, 1983, a three-judge panel of the

Court of Appeals for the District of

Columbia concluded that Petitioner

herein, Harry T. Alexander, had "twice

neglected a legal matter entrusted to

him in violation of DR 6-101(A)(3), and

once engaged in conduct prejudicial to

the administration of justice in viola-

tion of DR 1-102(a)(5)."4/ (1a-2a).

The court ordered that Mr. Alexander “be

suspended from the practice of law for a

period of three months...." (12a). The

Court's decision and order were consis-

tent with the conclusions and recommen-

dation of the Board on Professional

4/ DR 6-101(A)(3) provides that: "A

lawyer shall not ... [nJeglect a

legal matter entrusted to him."

DR 1-102(A)(5) provides that: "A

lawyer shall not ... [e]ngage in

conduct that is prejudicial to the

administration of justice."

-9-

Responsibility, which, in turn, had

agreed with the report of its Hearing

Committee. (2a, 30a-3la).

The disciplinary suspension imposed

on Mr. Alexander is based on two dis-

crete, relatively brief events. With

regard to the first, a trial date had

been set for November 6, 1980 in

Superior Court before Judge Tim Murphy

for a client of Mr. Alexander's who was

charged with “driving under the influ-

ence" and reckless driving. Although

Mr. Alexander did not appear at the pre-

scribed time, the Board accepted

Mr. Alexander's explanation that his

failure to do so was inadvertent, not

willful. Nevertheless, it found his

conduct to be prejudicial to the

=16-

administration of justice and to

constitute neglect of a legal matter

entrusted to him, apparently because of

what in its view were additional aggra-

vating factors (2a-3a, 7a).

The first of these involved a

chance encounter around 3:00 o'clock in

the afternoon of November 6th between

Mr. Alexander and Judge Murphy's court-

room clerk. The two men passed each

other on escalators going in opposite

directions as the clerk was hurrying

back to the courtroom and Mr. Alexander

was hurrying to a court appearance. In

the few seconds available for conversa-

tion, the clerk advised Mr. Alexander

about his failure to appear, indicated

that the case would be continued on a

=li-

day-to-day basis until the matter was

settled, and suggested that Mr. Alex-

ander check with the court. The clerk

did not identify the case to

Mr. Alexander because he could not re-

call its name. (60a-67a). Mr. Alexander

did appear in Judge Murphy's court on

the very next day, November 7, and

sought to preffer an explanation for his

absence. But by then, the case had been

called again and further continued, and

Judge Murphy refused to hear the expla-

nation, deciding instead to refer the

incident to the Office of Bar Counsel.

(7a, 32a-34a) .2/

5/ Mr. Alexander's written response to

the Bar Counsel's complaint stated

that, when he and the court clerk

met, “I was apparently on my way to

another court ..., and at that time

it was not convenient to make a

(Footnote cont'd next page)

o} 2-

The second supposedly aggravating

factor relied on by the Board was

Mr. Alexander's failure to avail himself

of the "locator" procedure established

for the Superior Court (7a-8a, 32a).

That procedure was designed to alleviate

Situations in which attorneys are aware

in advance of a potential scheduling

conflict, not for attorneys to check in

generally when they are in the court-

house. °/ Neither the Board nor the

(Footnote cont'd previous page)

note, and not having been provided

with the name of the case, the in-

cident slipped my mind." (92a).

Neither the Board nor the court

referred to this explanation, but

simply seemed to assume that

Mr. Alexander acted in "cavalier"

fashion in not contacting Judge

Murphy forthwith. (7a, 33a, 35a).

6/ As Judge Murphy explained in his

testimony before the Hearing

(Footnote cont'd next page)

=] 3-

Court stated why, if the scheduled ap-

pearance in Judge Murphy's court was not

noted (albeit inadvertently) on

(Footnote cont'd previous page)

Committee, "there was concern

caused by actions of mine in disci-

plining lawyers for failing to

appear in court and the lawyers

being concerned that they were

obligated to be in more courts than

one at the same time and it was a

Catch 22 situation...." (53a-54a).

The court in this case described

the “locator” procedure:

The "locator" procedure

permits attorneys to

telephone the Chief

Judge's Chambers before

8:45 a.m. and give the

clerk a list of the

attorney's other court

appearances scheduled for

that day. This list then

is distributed to all

trial judges in order to

facilitate locating an

attorney when needed.

(7a-8a).

«14=-

Mr. Alexander's calendar, he should

nonetheless have somehow anticipated a

scheduling conflict for which he should

have used the "locator. "2/

The other event which resulted in a

separate and second finding that

Petitioner neglected a legal matter

entrusted to him is based on a complaint

7/

There was no allegation nor any

evidence that the interest of

Mr. Alexander's client was harmed

by Mr. Alexander's failure to

appear on November 6.

Mr. Alexander had anticipated the

case would be disposed of through a

negotiated plea, and had previously

started negotiations with the pros-

ecutor towards that end. That was

indeed the way in which the case

ultimately was concluded, to the

complete satisfaction of the client

(who, notwithstanding Judge

Murphy's urging him to file a com-

plaint with Bar Counsel, declined

to do so). (56a-59a).

=| =

filed by a Larry Fisher and concerns a

Superior Court hearing on August 25,

1980 before Judge Fred McIntyre to re-

voke Mr. Fisher's probation.

Mr. Alexander was unable to appear at

the August 25 revocation hearing and

sent an associate, Patrick Patrissi,

instead. (4a, 37a). Mr. Patrissi was a

member in good standing of the District

of Columbia Bar.

The gist of the Board's finding

with regard to the Fisher complaint is

that Mr. Patrissi's representation "was

completely ineffective", for which

Petitioner is responsible; that, as a

result, Judge McIntyre made a mistake in

sending Mr. Fisher back to jail; and

that Petitioner did nothing to correct

=16-

the alleged mistake and obtain

Mr. Fisher's release. (4a, 9a-10a,

37a-39a, 43a-44a). The record shows

without dispute that Mr. Fisher had pre-

viously had two preliminary hearings on

an unrelated charge for which

Mr. Alexander had been retained and at

which Mr. Patrissi was present, once as

Mr. Fisher's sole counsel to seek a con-

tinuance and once accompanying

Mr. Alexander (85a-86a). Immediately

prior to Mr. Fisher's August 25 revoca-

tion hearing, Mr. Patrissi talked brief-

ly with the Assistant U.S. Attorney

handling the case and with Mr. Fisher

himself (38a).

The transcript of the revocation

hearing establishes that the Government

=i Jeo

asserted that Mr. Fisher “... never

brought proof of employment, ... has not

enrolled in a drug treatment program as

ordered by this Court ... [a]nd, recent-

ly he failed to report on August the

20th and also failed to show for a show

cause hearing." (98a). Mr. Patrissi

responded in detail to these allega-

tions, explaining that Mr. Fisher did

report on one occasion and why he did

not report on another occasion.

Mr. Patrissi also produced a medical

certificate indicating that Mr. Fisher

could not be in a drug program because

he was hospitalized during the relevant

period. In addition, Mr. Patrissi

stated that Mr. Fisher was gainfully

employed, gave the name of the employer,

and offered to bring proof of

=] 8@-

Mr. Fisher's employment when challenged

by the Government. When the Government

then urged that Mr. Fisher “had been

arrested several times since he has been

placed on probation," Mr. Patrissi twice

argued that his probation be continued

pending disposition of those cases,

pointing out that "[hJe's only been

arrested in three, not convicted of any

of the three." (100a-103a,

107a-109a) .2/

8/ Both the Board and the Court fault

Mr. Patrissi for not specifically

directing Judge McIntyre's atten-

tion to Rule 32, Superior Court

Rules of Criminal Procedure, which

deals with the use of unadjudicated

criminal charges in a probation

revocation hearing. (4a, 37a-38a).

However, neither the Board nor the

court mentions that, even if he did

not refer to the applicable rule by

number, he did assert the basic

principle underlying the rule --

not once, but twice.

=19-

Notwithstanding Mr. Patrissi's

efforts, Judge McIntyre decided to take

Mr. Fisher off probation, not permanen-

tly, but only until the pending charges

on which he had been arrested were "“dis-

posed of" (llla-ll2a). Although Judge

McIntyre adverted to the arrests, he

expressly stated that he did not feel

Mr. Fisher had “been working out on...

{his) probation at all" and emphasized

that Mr. Fisher neither “seem[ed] to

have any type of employment" nor had

presented any evidence of employment to

his probation officer (llla).

Mr. Fisher was later released from

his incarceration, but not because of

any judicial determination that Judge

McIntyre had erred. Rather, the record

=20-

is unequivocal that the “main basis for

release was his [Mr. Fisher's] commit-

ment to cooperate with the government”

in then on-going narcotics investiga-

tions (77a-78a, 82a, 84a). The attorney

for the Public Defender Service who took

over Mr. Fisher's representation testi-

fied that the situation with respect to

the revocation hearing “was very confus-

ing" and that she “was not completely

sure that it was proper and within the

guidelines." (78a, 79a-80a) .2/

9/ The Public Defender attorney testi-

fied that she “initially... thought

that he [Mr. Fisher] was being held

pending final revocation, as would

be the usual practice of a pending

case... that he was probably being

held pursuant to... a preliminary

determination awaiting the final

revocation, which usually would

happen after the disposition of the

pending case." (73a-74a). The

transcript of the August 25 hearing

(Footnote cont'd next page)

-2l1-

The record is also unequivocally

Clear that Mr. Fisher met with

Mr. Alexander about a week after the

August 25 revocation hearing. Thus, the

transcript of proceedings before

Superior Court Judge George H. Revercomb

on September 3, 1980 establishes that

Mr. Fisher appeared before Judge

Revercomb on that date for arraignment

on the unrelated charge as to which he

had retained Mr. Alexander to represent

him, that Mr. Alexander was then present

as Mr. Fisher's counsel, that he did

(Footnote cont'd previous page)

(llla-ll2a), referred to above,

indicates this is precisely what

happened. What seems to have con-

fused the Public Defender was an

improper entry, probably due to a

clerical error, in Mr. Fisher's

jacket.

=22-

represent him, and that at the

conclusion of the hearing he specifi-

cally asked for and was granted permis-

sion to confer with Mr. Fisher "in the

corner" to discuss “some very important

information" (26a-27a, 114a-1214) .22/

As to both the complaint by Judge

Murphy and the complaint by Mr. Fisher,

the Court of Appeals stated with respect

to the Board's findings against

10/ Mr. Fisher untruthfully testified

that Mr. Alexander did not appear

at his arraignment and he never

heard from him after the August 25

revocation hearing. (68a-69a,

70a). Mr. Fisher also untruthfully

testified “that Patrissi had not

opened his mouth" before Judge

McIntyre in the probation revoca-

tion hearing. (38a). Mr. Fisher

further insisted that he paid

Mr. Alexander his full $2000 fee,

yet could produce receipts for pay-

ments of only $1500 (37a).

o23=

Mr. Alexander that “we cannot say that

these findings are unsupported by sub-

stantial evidence” (10a). At all stages

of the proceedings below, Petitioner

herein challenged the evidentiary basis

for these findings. (e.g. 6a, 48a,

50a-52a). Moreover, Petitioner specifi-

cally contended in his brief to the

Court of Appeals that the findings of

the Board are not supported by clear and

convincing evidence. (48a).

=24-

REASONS FOR GRANTING THE WRIT

A. Due Process Requires That

Disciplinary Orders Against

Attorneys Must Be Based On A

Higher Standard of Proof Than

Substantial Evidence

In In re Ruffalo, 390 U.S. 544, 551

(1968), this Court held that discipli-

nary proceedings against attorneys “are

adversary proceedings of a quasi--

criminal nature ..." Because such pro-

ceedings 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 not "a matter of grace and

favor", but rather a right that cannot

lightly or capriciously be taken from an

attorney; the power to withdraw that

=23§—

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 Cheracter 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).

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), reiterated that "a

standard of proof... is embodied in the

Due Process Clause", and that the func-

tion of such a standard is to “instruct

the factfinder concerning the degree of

confidence our society thinks he should

have in the correctness of factual

=-26-

conclusions for a particular type of

adjudication." Specifically, “[t]Jhe

Standard serves to allocate the risk of

error between the litigants and to indi-

cate the relative importance attached to

the ultimate decision." Ibid.

The Court in Addington described

"three standards or levels of proof for

different types of cases." Ibid. Thus:

(1) "At one end of the spec-

trum is the typical civil

case involving a monetary

dispute between private

parties. Since society

has a minimal concern

with the outcome of such

private suits, plain-

tiff's burden of proof is

a mere preponderance of

the evidence. The liti-

gants thus share the risk

of error in roughly equal

fashion." 393 U.S. at

423.

(2) "In a criminal case, on

the other hand, the

(3)

@2Ja

interests of the

defendant are of such

magnitude that histori-

cally and without any

explicit constitutional

requirement they have

been protected by stan-

dards of proof designed

to exclude as nearly as

possible the likelihood

of an erroneous judg-

ment... This is accom-

plished by requiring

under the Due Process

Clause that the state

prove the guilt of an

accused beyond a reason-

able doubt...." 393 U.S.

at 393-394.

"The intermediate stan-

dard... usually employs

some combination of the

words ‘clear,’ ‘cogent,'

‘unequivocal,’ and ‘con-

vincing,'.... One typi-

cal use of the standard

is in civil cases involv-

ing allegations of fraud

Or some other quasi--

criminal wrongdoing by

the defendant. The in-

terests at stake in those

cases are deemed to be

more substantial than

mere loss of money and

some jurisdictions ac-

cordingly reduce the risk

=28-

to the defendant of

having his reputation

tarnished erroneously by

increasing the plain-

tiff's burden of proof.

Similarly, this Court has

used the ‘clear, un-

equivocal and convincing'

standard of proof to pro-

tect particularly impor-

tant individual interests

in civil cases... (depor-

tation)... (denaturaliza-

ton)...” 4410U0.S. at

424-425.

In Santosky v. Kramer, 455 U.S.

745, 754+757 (1982), the Court quoted

extensively and with approval from

Addington, pointing out that the ana-

lysis in Addington flowed from a

"straightforward consideration" of three

distinct factors specified in Mathews v.

Eldridge, 424 U.S. 319, 335 (1976):

"the private interests affected by the

proceeding; the risk of error created by

=29<

the State's chosen procedure; and the

countervailing governmental interest

supporting use of the challenged proce-

dure."

Applying this Court's decisions in

Ruffalo, Eldridge, Addington and

Santosky to attorney discipline proceed-

ings, we submit that a substantial evi-

dence standard does not pass

Constitutional muster. That standard,

as this Court has defined it, requires

only “such relevant evidence as a

reasonable mind might accept as adequate

to support a conclusion." Consolo v.

Federal Maritime Commission, 383 U.S.

607, 619-620 (1966); Consolidated Edison

Co. v. Labor Board, 305 U.S. 197, 229

(1938). “This is something less than

=-30-

the weight of the evidence, and the

possibility of drawing two inconsistent

conclusions from the evidence does not

prevent an administrative agency's find-

ing from being supported by substantial

evidence." Consolo v. F.M.C., supra.

As the United States Court of Appeals

for the District of Columbia Circuit

Stated in Charlton v. F.T.C., supra, in

refusing to permit the Federal Trade

Commission to suspend an attorney from

practicing before it based only on sub-

Stantial evidence of wrongdoing:

“Nowhere in our jurisprudence have we

discerned acceptance of a standard of

proof tolerating ‘something less than

the weight of the evidence.'" (543 F.2d

at 907).

-3]-

Indeed, even a preponderance of the

evidence standard is Constitutionally

questionable in attorney discipline

cases. Given that such discipline

imposes a punishment or penalty on the

lawyer (Ruffalo, supra), and given also

that withdrawal of the right to practice

law ought always to be exercised with

great caution (Ex Parte Wall, supra),

surely society has more than a “minimal

concern" with the outcome of such pro-

ceedings, and surely a "roughly equal"

sharing of the risk of error is grossly

inequitable. (Addington, supra).

Accordingly, nothing less than the

"clear, unequivocal and convincing”

standard can fairly be said to provide

due process. As Addington states, that

is the appropriate standard where, as

-32-

here, the proceedings are quasi-criminal

in nature, and a particularly important

individual interest is at stake which is

far more substantial than mere loss of

money. Both the Appellate Judges

Conference and the American Bar

Association have recognized this by

adopting a "clear and convincing" stan-

dard of proof in attorney discipline

1l/

proceedings.—

In the instant case, the District

of Columbia Court of Appeals did not use

a “clear and convincing" standard nor

~

~

™—

Standard 8.40, Joint Committee of

Professional Discipline of the

Appellate Judges Conference and the

Standing Committee on Professional

Discipline of the American Bar

Association, Standards for Lawyer

Disciplinary and Disability

Procedures (February, 1979).

-33-

even a preponderance of the evidence

test in ordering Petitioner's suspension

from the practice of law. It was satis-

fied to take the action it did against

Petitioner based only on substantial

evidence.

It is no answer to the

Constitutional objection that the Board

on Professional Responsibility concluded

that the Hearing Committee's “findings

of fact were supported by clear and con-

vincing evidence." (30a). Matters of

attorney discipline are the ultimate

responsibility of the District of

Columbia Court of Appeals, not the

Board. In re Dwyer, 399 A.2d l, 11-12,

(D.C. App., 1979), citing §§ 11-2502 and

11-2503(b), D.C. Code, 1973; cf. Powell

=34-

v. Nigro, 543 F.Supp. 1044, 1046 (D.C.

1982). That responsibility cannot be

abrogated by the court by delegating it

to a non-judicial board, and then treat-

ing that board's decisions as those of

an independent administrative agency.

See Standard 8.49, Joint Committee of

Appellate Judge and ABA, supra, n. ll.

(The report of a disciplinary committee

is advisory only.) The inescapable fact

is that, whatever standard of proof the

Board used, the statutory decision--

maker -- the Court of Appeals -- had

only to be persuaded by substantial evi-

dence that discipline was warranted to

impose such discipline upon Petitioner.

In short, for all that appears in its

opinion, the court to whom the statute

entrusted the authority to discipline

=35=

attorneys could have based its action

against the Petitioner on “something

less than the weight of the evidence” or

on the bare possibility that the infer-

ence of Petitioner's wrongdoing was

co-existent with a contrary inference.

We submit that this is Constitutionally

12/

impermissible.—

The District of Columbia Court of

Appeals has not been unanimous in

delegating its authority to the

Board and merely exercising a

reviewing function. A strong dis-

sent was filed in In re Colson, 412

A.2d 1160, 1175 (D.C. App., 1979)

asserting that “the basic deci-

sional responsibility for the

sanction to be imposed in a disci-

plinary proceeding should rest upon

the judges of a jurisdicton's high-

est court, rather than upon the

members of a court-created disci-

plinary body. After all, our Board

on Professional Responsibility is

not akin to an administrative

agency....”"

-36-

We further submit that the issue of

what standard of proof in attorney

discipline proceedings complies with

Constitutional due process is an impor-

tant one meriting this Court's atten-

tion. Indeed, the issue goes beyond

attorneys, and affects all whose profes-

sion or other occupation depends on a

license by the government.

B. The Evidentiary Basis For

Petitioner's Suspension Is So

Inadequate That the Suspension

Violates Due Process

Government action adverse to an

individual as a result of a criminal or

quasi-criminal proceeding violates due

process if it is not based on adequate

proof. For example, in Thompson v. City

of Louisville, 362 U.S. 199 (1960), the

o3Je

petitioner had been convicted in police

court of disorderly conduct and loiter-

ing, and this court reviewed "(t]he ul-

timate question presented to us...

whether the charges against petitioner

were so totally devoid of evidentiary

support as to render his conviction un-

constitutional under the Due Process

Clause of the Fourteenth Amendment" (362

U.S. at 199). The Court set aside the

convictions, holding that the record was

devoid of supporting evidence. In

Schware v. Board of Bar Examiners, 353

U.S. 232 (1957), the question presented

was “whether petitioner, Rudolph

Schware, has been denied a license to

practice law in New Mexico in violation

of the Due Process Clause of the

Fourteenth Amendment to the United

-38-

States Constitution” (353 U.S. at 233).

The Court held that Schware was deprived

of due process. In reaching this re-

sult, the Court considered in some de-

tail not only the evidence showing

Schware was of good moral character, but

also the "facts in the record which

raised substantial doubts about his

moral fitness to practice law" (353 U.S.

at 240). The Court concluded that "[iJn

the light of petitioner's forceful show-

ing of good moral character, the evi-

dence upon which the State relies...

cannot be said to raise substantial

doubts about his present good moral

character" (353 U.S. at 247).

This is not to say, of course, that

the Thompson and Schware cases are

-39-

factually analogous to the instant case;

obviously, they are not. The point is,

though, that this Court has interceded

in the past on due process grounds where

the evidence is woefully lacking to sus-

tain the result reached by lower courts.

We submit we have such a situation in

the instant case.

Thus, with respect to Mr. Alex-

ander's inadvertent failure to appear at

a hearing in Superior Court before Judge

Murphy, the supposed “aggravating” fac-

tors relied on by the court below turn

out to be no more than "“makeweights".

The circumstances of Mr. Alexander's

disjointed and fragmentary conversation

with a court clerk cannot justify char-

acterizing Mr. Alexander as “cavalier”

-40-

in his disregard for the court, as if a

chance encounter on an escalator were

somehow to be equated to formal notifi-

cation and a command to appear.

Moreover, there is no logic whatever to

faulting Mr. Alexander for not using the

"locator" procedure, which is designed

to resolve problems resulting from

conflicting scheduling of court dates,

when Mr. Alexander did not realize he

had a conflict in the first place.

With respect to Mr. Patrissi's sup-

posedly inadequate representation of

Mr. Fisher at the latter's revocation of

probation hearing (for which Mr. Alex-

ander was deemed responsible), plainly

the court's perception of the matter was

that Mr. Fisher was deprived of his

=41<

liberty for some months because of a

mistake by his counsel, who then had no

further contact with him. As we have

shown (supra, pp. 15-22), the record is

clear that the facts are otherwise: no

mistake was proven, and there was no

abandonment because Mr. Alexander and

Mr. Fisher conferred together several

days after the hearing. Moreover, it

has not been suggested that there was

any additional evidence that

Mr. Patrissi should have brought to the

court's attention at the probation hear-

ing. And, having specifically argued to

the court that Mr. Fisher had only been

arrested but not convicted on new

charges, surely Mr. Patrissi was enti-

tled to assume that an experienced judge

would be aware of what limitations the

-42-

rules placed on the use of such arrests

in making the court's determination of

whether to return Mr. PFisher to jail.

Indeed, to blame Mr. Patrissi for igno-

rance of the rules is to implausibly

blame both the judge and the Assistant

U.S. Attorney handling the case as well

for similar lack of knowledge.

The subject of the disciplinary

action in this case is a well-known and

respected member of the Bar of the

District of Columbia as well as of the

community in general, having sat as an

Associate Judge on the Superior Court of

the District of Columbia from 1966 to

1976, 23/ Just as the Schware Court

13/ Mr. Alexander, who is black, was

born in 1324 in New Orleans,

Louisiana in other than wealthy

(Pootnote cont'd next page)

-43-

found inadequate evidence to support the

findings below, Petitioner asks this

Court to recognize the same type of due

process defect here.

CONCLUSION

For all of the reasons set forth

(Footnote cont'd previous page)

circumstances. He served in the

Navy in World War II, graduated

from Xavier University of New

Orleans in 1949, and received his

J.D. in 1952 from Georgetown

University Law School, where he was

a member of the Georgetown Law

Journal. Prior to his judicial

service, Mr. Alexander held various

positions in the Department of

Justice and also served as an

Assistant United States Attorney in

Washington, D.C. From 1965 to

1966, he was the principal assis-

tant in that office, second only to

the United States Attorney. Since

retiring from the bench in 1976,

Mr. Alexander has been engaged in a

general private practice.

-44-

herein, Petitioner asks that this Court

grant this Petition and issue a Writ of

Certiorari to the District of Columbia

Court of Appeals.

Respectfully submitted,

punt KifoteLl

Jewel Lafontant*

Eugene B. Granof

Lester R. Gutman

Vedder, Price, Kaufman,

Kammholz & Day

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 828-5040

Dated: February 4, 1984

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