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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 904

## Text

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

« Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1210%3A1. Public record. Not legal advice.