Petition for Writ of Certiorari — Franklin v. District of Columbia Court of Appeals

shi 88, Frirp

IN THE

Supreme Court of the

OCTOBER TERM, 1986

IN THE MATTER OF

DAVID M. FRANKLIN, Petitioner

A MEMBER OF THE BAR OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

JAMES W. COBB

1004 Sixth Street, N.W.

Washington, D.C. 20001

(202) 387-1100

Counsel for Petitioner

December, 1986

ALPHA Grapuics, INc., e WASHINGTON, D.C. e (202) 331-8101 nN

i\

riv ¥y

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I.

II.

QUESTIONS PRESENTED FOR REVIEW

Whether it was a violation of petitioner’s Sixth

Amendment right to have been disbarred from the

practice of law without being afforded an opportunity

to cross-examine the complaining witness.

Whether it was a violation of petitioner’s rights to due

process under the Fourteenth Amendment by not being

afforded the opportunity to cross-examine a

complaining witness during a disciplinary proceeding.

TABLE OF CONTENTS

Page

OP TT eee ree ee TTT eT er ere ee

Se datbeeceiecssheecevscscdtvecsees? |

re ee rs sent hk ob Sab: bee Baan seen 2

Constitutional Provisions and Rules Involved......... 2

i chan ebb ccdwccebetcsscoenvcsed

Reason for Granting the Writ .................0005. 6

1. The District of Columbia Court of Appeals

has decided an important question of federal

law which has not been, but should be,

Pe rere 6

ee ered EO whe 6 66s 2686 R eh ees ccc eds 8

FOU cei de awcdd twee sb ees buccecccecess 9

TABLE OF AUTHORITIES

Cases Page

Brinkerhoff-Faris Trust & Savings Co. v. Hill,

ER ES Oe 5

In re Ruffalo, 390 U.S. 544, 550 (1968) .............. 6

In re Thorup, 432 A.2d 1221 (D.C. 1981) ...... tne 6

In re Williams, 464 A.2d 115 (D.C. 1982) ....... 5, 6,7

Other Authorities

U.S. Constitution, Amendment VI .................. 5

U.S. Constitution, Amendment XIV................. 5

as ane hc eesenssccetese 6, 2, 7

Sets SA PHREMIEUED ccc ccecccvcccccccsss 3, 5

District of Columbia Court of Appeals

ce an Se batae kb asadesvecscivess 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

IN THE MATTER OF

DAVID M. FRANKLIN, Petitioner

A MEMBER OF THE BAR OF THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA

COURT OF APPEALS

Petitioner respectfully prays that a writ of certiorari issue to

review the decision of the District of Columbia Court of

Appeals of September 3, 1986, declining to review the

federal constitutional issues that Petition for Certiorari

presents.

OPINIONS BELOW

The District of Columbia Court of Appeals denied

petitioner’s Petitions for Rehearing and for Rehearing En

Banc of the decision of the District of Columbia Court of

Appeals, Board on Professional Responsibility which

affirmed the Report and Recommendation of Hearing

Committee Number Five that petitioner be disbarred from

the practice of law in the District of Columbia. The District

of Columbia Court of Appeals’ denial of Rehearing and for

Rehearing En Banc is attached as appendix L.

JURISDICTION

The District of Columbia Court of Appeals’ denial of

Petitioner's Petitions for Rehearing and for Rehearing En

Banc was issued September 3, 1986. This Court has

jurisdiction under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL PROVISIONS AND

RULES INVOLVED

The Sixth Amendment to the United States Constitution

provides, in relevant part, as follows: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him... .”

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, as follows: “. . . nor

shall any state deprive any person of . . . property without

due process of law. . .”

The District of Columbia Bar Rule XI, §7(2) pertaining

to Disciplinary Procedure provides, in relevant part, as

follows:

“If there are any issues of fact raised by the

pleadings, or if the respondent requests the

opportunity to be heard in mitigation, the hearing

committee shall serve a notice of hearing. . .. The

notice of hearing shall advise the respondent that

he is entitled . . . to cross-examine witnesses. . . .”

The District of Columbia Administrative Procedure

Rule on Contested Cases provides, in relevant part, as

follows:

“... Incontested cases, except as may otherwise be

provided by law, other than this subchapter, the

proponent of a rule or order shall have the burden

of proof. Any oral and any documentary evidence

may be received. . . . Every party shall have the

right to present in person or by counsel his case or

devense by oral and documentary evidence, to

submit rebuttal evidence, and to conduct such

cross-eXamination as may be required for a full

and true disclosure of the facts. . . .”

D.C. Code Section 1-1509(b)( 1981).

STATEMENT OF THE CASE

Petitioner is an attorney admitted to the District of

Columbia Bar. On April 8, 1983, a client filed a formal

complaint against him to the Office of Bar Counsel, the

Board of Professional Responsibility, District of Columbia

Court of Appeals (Appendix A). On September 26, 1983,

petitioner responded to the complaint (Appendix B).

On November 8, 1984, Bar Counsel filed a petition

against petitioner instituting formal disciplinary

proceedings. Petitioner was charged with violating

Disciplinary Rule 9-103( A), Disciplinary Rules 1-102( AX 3)

and (4), Disciplinary Rule 9-103(B), and Disciplinary Rule

6-1-1(AX3).

On January 3, 1985, a hearing was held before Hearing

Committee Number Five. Petitioner was not present at the

hearing, but was represented by counsel. Bar counsel did

not call any witnesses, but relied on documentary evidence

to prove his case.

On June 26, 1985, the Hearing Committee filed its report

with the Board on Professional Responsibility (Board). In

its report to the Board, the Hearing Committee found that

petitioner violated Disciplinary Rule 9-103(A),

Disciplinary Rule 1-102(A)(4), and Disciplinary Rule 6-

101(AX(3) of the Code of Professional Responsibility.

On July 15, 1985, petitioner filed an exception to the

Hearing Committee’s report on the ground that petitioner's

right to due process was violated because Bar Counsel had

not presented the complaining witness in support of the

complaint lodged against petitioner. Consequently,

petitioner was never able to to confront his accused. As a

result of said exception, the Board established a briefing

schedule and set oral arguments for September 26, 1985.

On November 4, 1985, the Board filed its Report and

Recommendation with the District of Columbia Court of

Appeals. The Board adopted the findings of fact of the

Hearing Committee and adopted the Hearing Committee's

recommendation that petitioner be disbarred.

Subsequently, on November 25, 1985, petitioner filed the

same exception to the Board’s report as was filed on July 15,

1985 against the Hearing Committee’s report and

recommendations (Appendix C). As a result of the

exception having been filed, the District of Columbia Court

of Appeals, on December 5, !985, ordered that both

petitioner and Bar Counsel file briefs in response to the

Constitutional issues raised in the exception made on

November 25, 1985 (Appendix D).

Petitioner filed his brief on January 9, 1986, addressing

the Constitutional issues raised below (Appendix E). Bar

Counsel filed his Brief on February 10, 1986, (Appendix F).

On April 30, 1986, the Court issued an order upholding the

Board’s decision without expressly passing upon the

Constitutional! issue (Appendix G). Petitioner then filed a

petition for a rehearing (Appendix H) and a petition fora

rehearing en banc (Appendix |). On July 15, 1986, the

District of Columbia Court of Appeals ordered Bar

Counsel to file a response to the petition, which Bar

Counsel filed on August 4, 1986 (Appendix J). Petitioner

subsequently filed a supplemental memorandum on August

25, 1986, addressing the Constitutional issues (Appendix

K). On September 3, 1986, the District of Columbia Court

of Appeals’ merits division denied petitioner's petition for

rehearing or rehearing en banc without expressly

addressing the Constitutional issues involved( Appendix L).

Federal Question Raised

Petitioner raised the first federal question in this case by

charging that his right to due process under the Fourteenth

Amendment had been violated because his right to cross-

examine the complaining witness, as set forth in D.C. Code

§ 1-1509(b), had been denied him.

Petitioner then raised the second federal question in this

case by asserting that a disbarment proceeding is quasi-

criminal in nature, as established in Matter of Williams, 464

A.2d 115 (D.C. App. 1983). Under such circumstances, the

Sixth Amendment of the U.S. Constitution entitles

petitioner to confront the complaining witness, which he

was never afforded the opportunity to do.

The District of Columbia Court of Appeals did not

expressly pass upon the constitutional issues, though of

course it could not have affirmed the decision below

without resolving the constitutional questions against the

petitioner. Brinkerhoff-Faris Trust & Savings Co. v. Hill,

281 U.S. 673 (1930).

REASON FOR GRANTING THE WRIT

The District of Columbia Court of Appeals has

decided an important question of federal law

which has not been, but should be, settled by this

Court.

Petitioner argues that he was denied his Sixth Amend-

ment right of confrontation because the complainant was

not called by Bar Counsel as a witness at the evidentiary

hearing. As a result, petitioner has not been allowed the

opportunity to cross-examine Bar Counsel’s missing

witness. Bar Counsel relied only on documents and letters

to support his case. Bar Counsel’s missing witness was not

subpoenaed or required to testify. This is especially

significant in light of the fact that petitioner’s affidavit and

exhibits disputed the complaining witness’ affidavit. This

fact emphasizes the need for confrontation and cross-

examination in this matter, as set forthin Disciplinary Rule

XI, § 7(2).

In the matter of Jn re Williams, 464 A.2d 115 (DC 1982),

the Court remanded the case for lack of procedural due

process. This Court stated in support of its actions that

disciplinary proceedings are quasi-criminal in nature and

that an attorney who is the subject of such proceedings is

entitled to procedural due process safeguards. /d. at 119.

See also, Jn re Ruffalo, 390 US 544, 550 (1968); Jn re

Thorup, 432 A.2d 1221, 1225 (DC 1981). Thus, the

procedural requirements which apply in attorney disci-

plinary proceedings are analogous to those of contested

cases. /d. at 119. See also, Jn re Thorup, supra.

The District of Columbia Court of Appeals Rule XI,

§ 10(4) places the burden of proof in a disciplinary proceed-

ing on the Office of Bar Counsel. As a result of Bar Counsel

not meeting its burden, the Court has not been exposed to

the full and true disclosure of the facts because petitioner

has not been given the opportunity to cross-examine the

complaining witness, which leaves unexplained crucial

facts. The complaining witness has only submitted an

affidavit which respondent has denied, thus raising issues of

fact which procedurally entitle respondent to cross-

examine the complaining witness. District of Columbia Bar

Rule XI, § 7(2) states: “If there are any issues of fact’ raised

by the pleadings . . . the notice of hearing shall advise

respondent that he is entitled to . . . cross-examine wit-

nesses. . . .” Bar Counsel did not comport with the rule

because the complaining witness, against whom the issues

of facts were raised, never appeared and it was Bar

Counsel’s obligation to bring in the witness. Petitioner

should not have the burden of bringing in the out-of-

country complaining witness when the affidavit submitted

by petitioner clearly established and refuted issues pertain-

ing to the facts.

In Matter of Williams, 464 A.2d 115(D.C. App. 1983), a

matter before the Board on Professional Responsibility, the

Court of Appeals held that the finding of disciplinary

violations and the recommendation of disbarment, which

was not based on proof under oath, and failure to provide

an evidentiary hearing denied due process of law under the

U.S. Constitution.

This case presents a question that has been left undecided

by this Court in that there is no decision by this Court that

addresses the Constitutional issues raised in the instant

case.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue.

Respectfully submitted,

JAMES W. COBB

1004 Sixth Street, N.W.

Washington, D.C. 20001

(202) 387-1100

December 2, 1986

CERTIFICATE OF SERVICE

I hereby certify that | am a member of the Bar of this

Court and that pursuant to Rules 28.3 and 28.5(b) of the

Rules of the Supreme Court, I this day served three (3)

copies of the foregoing Petition for Writ of Certiorari to

Thomas H. Henderson, Jr., Esquire, Bar Counsel, Board on

Professional Responsibility of the District of Columbia.

Such service was accomplished by mailing the copies first-

class and postage prepaid to counsel at the following

address:

Thomas H. Henderson, Jr., Esquire

Office of Bar Counsel

The Board of Professional Responsibility

District of Columbia Court of Appeals

515 Fifth Street, N.W., Building A

Washington, D.C. 20001

By

Date: December 2, 1986 James W. Cobb

APPENDIX INDEX

Page

APPENDIX A

Complaint of Mr. Al-Marzouk submitted

to the Office of Bar Counsel, The Board of

Professional Responsibility, District of

Columbia Court of Appeals,

ES SS a ee A-|

APPENDIX B

Response of petitioner to complaint filed

against him, dated September 26, 1983..... A-5

APPENDIX C

Exceptions to the Report and

Recommendation of the Board on

Professional Responsibility,

eee reaemmmer 25, T9BS ..... 6 ccc ceeae. A-I1

APPENDIX D

Order of the District of Columbia Court

of Appeals requesting briefs in response to

the Constitutional issues raised in the

Exception made on November 25, 1985,

Se Ss A-15

APPENDIX E

Reply Brief of Respondent,

EE ee eee A-16

APPENDIX F

Brief for the Office of Bar Connsel,

Gated February 10, 1986 .............6... A-29

APPENDIX G

Order of the District of Columbia Court

of Appeals disbarring petitioner from the

practice of law in the District of Columbia,

SE PM Sb ces cece crsccascess A-4]

APPENDIX H

Motion for Leave to File Petition for

Rehearing Late, dated May 30, 1986....... A-42

APPENDIX |

Motion for Leave to File Petition for

oe ee Et ere rere er A-43

APPENDIX J

Opposition to Petition for Rehearing and

to Petition for Rehearing En Banc,

ee & . rrrre A-44

APPENDIX K

Petitioner's Supplemental Memorandum,

CO FE as FO is wei wack ecacasacs- A-48

APPENDIX L

Order of the District of Columbia Court of

Appeals denying Petition for Rehearing

or Rehearing En Banc,

GORGE TOOURINOT B,: TFWO. «vox onic ci csncnses A-53

APPENDIX

a ah a NS On et

APPENDIX A

Office of Bar Counse}

The Board of Professional Responsibility

District of Columbia Court of Appeals

515 Fifth Street, N.W., Building A

Washington, D.C. 20001

(202) 638-1501

Date: April 8, 1983

A. Complainant: Mr. Ahdi Fahed Al-Marzouk

Chairman

International General Resources W.L.L.

Address: c/o John G. Gaine

1800 M Street, N.W.

Suite 1000

Washington, D.C. 20036

Business

Telephone: (202) 233-1300

B. Attorney Complained of:

David M. Franklin

Address: 1290 South Omni International

Atlanta, Georgia 30303

Telephone: (404) 688-2233

C. Have you filed a complaint about this matter anywhere

else?

No

D. Have you brought a civil or criminal action against this

Attorney?

No

E. Nature of complaint:

Negligence in representation of client; failure to deliver

documents on behalf of client; failure to notify client of

receipt of client funds; failure to pay over client funds;

improper offset of legal fees; dishonesty; conduct

involving moral turpitude; breach of fiduciary duty.

F. Details of complaint:

Mr. Franklin was retained by International General

Resources W.L.L., a Kuwaiti corporation (“IGR”) in

May of 1981 to represent its interests in connection with

transactions involving the Lake Dow subdivision in

Henry County, Georgia. IGR executed a Power of

Attorney authorizing Mr. Franklin to execute

documents on behalf of IGR to evidence a loan from

IGR to the developer of Lake Dow, Darwish

International N.V., INC. (“Darwish”). Among other

things, Mr. Franklin was authorized to (prepare,

execute, deliver and record any and all quitclaim deeds

for the release of any and all lots) from a security deed

given to IGR in connection with the Loan.

Mr. Franklin was also authorized to (collect, receive

and receipt any and all monies due) IGR under the terms

of its Loan Agreement.

The loan from IGR to Darwish was consumated on

May 20, 1981 and final loan proceeds were disbursed in

August of 1981. Under the terms of of the Loan

Agreement, Darwish presented to Mr. Franklin 130

quitclaim deeds to permit the release of lots from the

IGR security deed in the event of lot sales. Under the

Loan Agreement, these quitclaim deeds were to be

delivered to Pioneer National Title Insurance

Company, Escrow Agent for the transaction. Notwith-

standing the fact that Mr. Franklin’s only responsibility

was to sign and deliver the quitclaim deeds, he totally

failed to carry out this simple assignment.

Mr. Franklin’s failure to deliver the quitclaim deeds to

the Escrow Agent caused the Escrow to fail which meant

that the security deed from Darwish to IGR was never

recorded. The result of Mr. Franklin’s negligence was to

leave IGR with a $1,105,000 loan for approximately

eighteen (18) months without a properly recorded

security instrument.

Another responsibility given to Mr. Franklin under the

initial Loan Agreement was to receive payments from

Darwish under the loan. In June or July of 1982,

Darwish sent to Mr. Franklin an interest payment of

approximately $21,282 for the account of IGR. The

complainant is informed that the Darwish check was

deposited by Mr. Franklin in his law firm’s regular

account, not ina trust account. Mr. Franklin gave IGR

no notice of his receipt of this amount for over six”

months until after IGR sent Mr. Ernest W. Alexander,

IGR’s attorney from Kuwait, to investigate the situa-

tion. On December 15, 1982, long after his receipt of the

interest payment, Mr. Franklin sent a letter to Mr. Al-

Bedah of the Kuwait Financial Center, Agent for IGR.

In this letter, Mr. Franklin first made mention of the

funds received, but before remitting the proceeds, he

made an offset of $6,487, which he claimed to be owed

for legal fees and enclosed a check for the difference,

namely, $14,795. Upon presentation of that cReck for

collection, it was returned for insufficient funds.

Under the circumstances, IGR requested and obtained

from Mr. Franklin a renunciation of his power of

attorney and gave him a written demand taking issue

with his right to offset legal fees, demanding a full

accounting of all monies received by Mr. Franklin on

IGR’s behalf and asking for a detailed statement of legal

services for which Mr. Franklin claimed to be owed.

Further, because of the returned check, IGR made a

statutory demand on Mr. Franklin and finally received,

on or about February 10, 1983, a cashier’s check for

$15,555.50. To this date, Mr. Franklin has not re-

sponded to the demand for a remittance of the sum of

$6,487, for a full accounting of monies received or for a

detailed description of legal services which would justify

the $6,487 in fees claimed by Mr. Franklin.

Complainant believes that Mr. Franklin has injured

IGR through his violations of D.R. 9-102, 1-102(3) and

1-102(4) of the District of Columbia Code of Profes-

sional Responsibility.

S

Ahdi Fahed Al-Marzouk

Chairman

International General Resources W.L.L.

Ernest W. Alexander

The Law Bureau

P.O. Box 2578

Safat, Kuwait

Telephone: 447447 or 412812

ATTORNEYS FOR COMPLAINANT

LOCAL COUNSEL FOR COMPLAINANT

Michael K. Madden

John G. Gaine

Robert C. Lower

Alston & Bird

1800 M Street, N.W.

Suite 1000

Washington, D.C. 20036

Telephone: (202) 233-1300

APPENDIX B

DISTRICT OF COLUMBIA BAR

RECEIVED HAND DELIVERED SEPT 28 1983

OFFICE OF BAR COUNSEL

Franklin & Axam

Attorneys at Law

Suite 1290 South, Omni International

Atlanta, Georgia 30303

(404) 688-2233

September 26, 1983

David M. Franklin

Tony L. Axam

Lisa D. Cooper

Edwin Yourman

Deputy Bar Counsel

515 Fifth St., N.W.—Bldg. A

Washington, D. C. 20001

Re: Frankiin/Madden Docket No.: 48-43

Dear Mr. Yourman:

Listed below is my response to the erroneous complaint

filed with you by Ahdi Fahd Al-Marzouk of Kuwait. I have

also enclosed copies of documents which are in my

possession and which also are in the possession of the

complainant since I turned over my complete files to the

complainant's representative. The facts are as follows: |

was in Kuwait with former Ambassador Andrew Young in

April, 1980 when Mr. Al-Marzouk asked me to assist him

with a matter in Georgia. In late April, 1980 Al-Marzouk

retained my firm to advise him financially and legally on

three (3) land lots he had previously bought unseen in

Georgia, and a possible further investment in an adjacent

planned golf course developed by the same seller, Darwish

Hussamy. The complaint filed with you stated that I was

retained in May, 1981 which is completely false (see Attach-

ment A).

A-6

Relying on Mr. Al-Marzouk’s request for services |

retained a certified M.A.I. Appraiser and a law firm that

specialized in title searches in that county in Georgia.

Within sixty (60) days | submitted to Mr. Al-Marzouk in

Kuwait a 50-page appraisal with photographs, a legal title

report, copies of the seller installment sales contract and

deed, and other information. Please note my July 9, 1980

cover letter (see Attachment A) in which I strongly urged

Mr. Al-Marzouk to withdraw from the investment because

the seller, Darwish, had conveyed a fraudulent general

warranty deed in that the seller did not own the land in

question but was purchasing it on an installment basis (see

Attachment A). I strongly recommended that the invest-

ment was a fraud and had no chance whatsoever of success

because the land lot cost of $35,000 to $60,000 per vacant lot

was 300 to 400 per cent higher than land selling in the

general area according to the M.A.I. Appraisal.

Subsequent to my July, 1980 report Mr. Al-Marzouk met

in Kuwait with Darwish in Fall, 1980 and began negotiating

a preliminary 50% interest purchase of the entire project.

Against my personal objections, I was then asked to

conclude the negotiations in the best manner available to

Al-Marzouk.

This purchase agreement for the land was not completed

until May 20, 1981 because of negotiations complicated by

the sudden absence of Al-Marzouk. For a period of five (5)

months, although directed by Mr. Al-Marzouk to negotiate

for him, he was unavailable by phone for any consultation. I

made numerous calls to his office and was instructed that he

was not available and not in the country. Finally, after

several months, Darwish Hussamy informed me that

Al-Marzouk had an illness and had been in Cairo, Egypt

during that time. I was unable to obtain any information

about this from his office or his assistants. At this point my

legal fees were unpaid for over nine (9) months. No one in

his office volunteered any information except that he was

not available.

Subsequently, Al-Marzouk returned to Kuwait and |

travelled there at his request in April, 1981. In May, 1981 |

was tendered a check for my fees by Darish, (see Attach-

ment B) the person to whom I was asked to observe, watch,

and monitor by Al-Marzouk. At this point the legal fees

were paid for the previous twelve (12) months.

Concerning the security deed, Al-Marzouk knew that

Darwish would not present the Quit Claim Deeds until the

entire loan amount was paid which was not until August,

1981. Furthermore, there were extensive cables and

conversations with Al-Marzouk about establishing a

Netherlands Antilles Corporation for his company in order

that he would not be taxed under U. S. law. Al-Marzouk

first stated that Darwish would do it for him and then

several months later asked me to look into it. This caused a

delay because we did not know what corporate name to

affix to the deed, a Kuwaiti corporation which would be

fully taxed under U. S. law or a Netherland Antilles cor-

poration which would not be taxed under U.S. law. All

during this time, I was still advising Al-Marzouk that the

project was not feasible and urged that Al-Marzouk ter-

minate the agreement because of the total impractically of

the project. Additionally, I stated that since the first interest

payment was due in less than 120 days, December, 1981, if

Darwish did not pay a default would occur, and we could

foreclose on the loan, recover the land, or a combination of

remedies. The complaint alleged that I was negligent. The

facts show that there was no financial damage to AI-

Marzouk from my actions. And I predicted no lots were

sold during the entire period so consequently there were no

deeds to transfer.

Now as to the receipt of the $21,282. The $21,282 was de-

posited to a trust account (see Attachment C) and not as the

complaint alleged in a law firm regular account (see Attach-

ment C). Furthermore, Al-Marzouk sent a representative,

Vartkes Alahaidoyan to Atlanta in May, 1982 after

Darwish had not paid the December, 1981 interest payment

and I was again imploring Al-Marzouk to foreclose. After

meeting with Darwish accompanied by Al-Marzouk’s

personal representative, Darwish forwarded Attachment B

which Al-Marzouk’s representative received. This attach-

ment states that on June 4, 1982, Darwish was to deliver a

check whicii was deposited in my trust account and was

returned insufficient. | called Vartkes and informed him

that | had contacted Hussamy and given him ten (10) days

to make the check good with certified funds. I again called

Vartkes, in June, when that certified check was received by

me. I asked him where should the funds be sent since these

were the first and only funds ever received by me.

Vartkes said he did not know, but stated that he would be

seeing Al-Marzouk within the next several weeks and

would inform him the matter at hand was completed.

I made several calls to Kuwait. In September one of

Al-Marzouk’s assistants called from Kuwait about a new

legal matter in California regarding auto parts. I discussed

with the assistant the fact that I was in receipt of funds, and

also had a legal bill due, and asked what to do. The assistant

had no knowledge of the situation and informed me they

would have to speak with Al-Marzouk. Additionally, the

assistant later sent materials to me concerning the new

matter.

I assumed that Al-Marzouk had disappeared for the

second time, and I was to wait until he contacted me. After

the previous year’s events, I was not not surprised at the

absence of contact from Al-Marzouk, his personal repre-

sentative, or his assistant.

My next contact with Al-Marzouk came ina letter from

him dated December 7, 1982 in which I finally received

instructions and a person’s name to forward information to

(see Attachment D).

I immediately did so (see Attachment D). Within two

days, Mr. Alexander appeared in Atlanta and notified me

he was Al-Marouk’s personal representative and inquired

about the project. Again, I had to start from scratch. |

explained that the first contact I had had with Al-Marzouk

in several months was his December correspondence. |

explained that very little of my advice had been followed

and along with the sudden absences of contact which were

never explained was obviously a disadvantage to me as well

as to Al-Marzouk. I notified Alexander at that time that I

had received a prior communication from Al-Marzouk and

had forwarded everything to the representative listed. I gave

Alexander copies of the cover letters including the state-

ment of services. | tendered a renunciation of my power

of attorney at this meeting and not in February as the

complaint alleges.

In summary, in this initial meeting with Alexander, less

than three (3) days after receiving contrary instructions

from Al-Marzouk, I gave an accounting of the funds and, a

description of legal services and expenses, and a renounce-

ment of my duties (see Attachment E).

Later, when I was notified that the check had not been

honored, I immediately obtained a Cashier’s check for more

than what was due even though the check could have been

presented a second time. There was no damage to IGR or

Al-Marzouk in funds or in land security.

In retrospect I should have withdrawn from the case

when my original advice was not followed and I was not

able to establish a clear line of contact with Al-Marzouk at

all times. At each point a personal representative was

presented to me, I endeavored to work with that person.

The first representative received copies of the agreement,

and notification of the payment. Yet he did not inform

Al-Marzouk of this. The second representative received

copies of all correspondence in my files, and of the cover

memo clearly stating the funds received to date, and an

A-10

explanation of services rendered. Yet the complaint does

not state that Al-Marzouk received this information. In

both cases, I do not know why since both representatives

presented themselves with full authority from Al-Marzouk.

Respectfully submitted,

/S/

DAVID M. FRANKLIN

A-11

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APPENDIX C

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

In the matter of

DAVID M. FRANKLIN,

Bar Docket Number: 48-83

A Member of the District :

of Columbia Bar

Bar No. 199505

EXCEPTIONS TO THE REPORT

AND RECOMMENDATION OF THE BOARD

ON PROFESSIONAL RESPONSIBILITY

I. BACKGROUND

A. This matter is before the Court on the report of

Hearing Committee Number Five, dated June 26, 1985 and

the report of the Board on Professional Responsibility

dated November 4, 1985.

An evidentiary hearing was held on January 3, 1985,

before the Hearing Committee. Respondent was out of the

country and consequently, not present at the hearing. He

was, represented by counsel, James W. Cobb, Esquire.

Both Respondent and Bar Counsel were provided an

opportunity to supplement the record after the hearing and

both did so.

The Hearing Committee found that Respondent had

violated DR9-103(A)—misappropriation, DR1-102(A)(4)

—dishonesty, and DR6-101(A)(3)—neglect. The

Committee recommended that Respondent be disbarred

from the practice of law.

The Board on Professional Responsibility agreed with

the findings of the Hearing Committee and the recom-

mended sanction.

A-13

Il. EXCEPTIONS

1. The Hearing Committee erred in admitting and in

accepting the exhibits. No testimony in support of the

complaints was ever adduced, and Bar Counsel was never

required to produce real or uncontradicted evidence of the

disciplinary violations.

2. The procedures followed by the Hearing Committee

in the petitions violated the Respondent’s due process right

against self-incrimination. The charges in the petition

clearly involved allegations that were almost criminal in

nature. The Hearing Committee concluded in its findings

upon these two counts that the Respondent converted funds

to his own use. The Respondent has thus been found guilty

of criminal conduct by the Committee in the absence of

proof of charges by Bar Counsel of the conduct alleged with

an opportunity provided to Respondent to contest such

proof, the Respondent’s countersubmissions alone are suf-

ficient to refute the charges.

3. The Hearing Committee erred in recommending the

disbarment of Respondent without first finding that the

allegations in the petitions were supported by clear and

convincing evidence, and without making its own findings

of fact rather than just adopting the allegations of the

petitions.

4. The sanction of disbarment is not justified by the

record or other matters before the Board or this Court.

lil. CONCLUSIONS

It is clear from the foregoing that numerous errors were

made in the administrative proceedings below and that

Respondent was deprived of his due process rights warrant-

ing a dismissal of the petitions against him.

Respondent therefore requests that this Court set this

matter for the filing of briefs and oral argument pursuant to

Rule XI, Sec. 7(3).

In view of the seriousness of the discipline recommended,

and it appearing that this appeal calls into questions serious

due process issues regarding the rules and procedures

governing the Board on Professional Responsibility, it is

submitted that the findings and the sanctions of the Board

be reversed.

Respectfully submitted,

/ S /

JAMES W. COBB

Attorney for Respondent

1004 Sixth Street, N.W.

Washington, D. C. 20001

387-1100

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was mailed,

postage prepaid, to Samuel McClendon, Assistant Bar

Counsel, 515 Sth St., N. W., Wash., D. C. 20001, this 25th

day of November, 1985.

/S/

JAMES W. COBB,

ESQUIRE

A-15

APPENDIX D

District of Columbia Filed Dec 5, 1985

Court of Appeals /S/ Clerk

48-83

DISTRICT OF COLUMBIA COURT OF APPEALS

500 Indiana Avenue, N.W.

Washington, D.C. 20001

No. 85-1643

In the Matter of

DAVID M. FRANKLIN

A Member of the Bar of the

District of Columbia

Court of Appeals

ORDER

It appearing that the Board on Professional Responsi-

bility of this court, pursuant to Rule XI, §7 of the Rules

Governing the Bar of the District of Columbia, has

submitted its findings in the above-entitled matter and

respondent having filed exceptions to said Report, it is

ORDERED that the brief of respondent shall be filed

within 40 days from the date of this order, and the brief of

Bar Counsel shall be filed within 30 days from the date on

which the brief of respondent is filed.

BY THE COURT:

IS;

; WILLIAM C. PRYOR

James W. Cobb, Esquire Chief Judge

1004 6th Street, N.W.

Washington, D.C. 20001

Thomas H. Henderson, Jr., Esquire

Bar Counsel

Board on Professional Responsibility

Copies to:

Mark W. Foster, Esquire

Chairman

Board on Professional Responsibility

APPENDIX E

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 85-1643

In the Matter of

DAVID M. FRANKLIN.

D.C. Bar No. 199505 48-83

On Appeal from the Board on

Professional Responsibility

REPLY BRIEF OF RESPONDENT

DAVID M. FRANKLIN

JAMES W. COBB, ESQUIRE

1004 Sixth Street, N.W.

Washington, D. C. 20001

(202) 387-1100

A-17

TABLE OF CONTENTS

i REPRO Ee es Fe Coe ee Bar ee |

At, POP yy PEPER TTC eT ToT TEL ET EP Eee l

I. RESPONDENT HAS BEEN DENIED

PROCEDURAL DUE PROCESS AND

THEREFORE THIS PROCEEDING

SHOULD BE DISMISSED OR

REMANDED WITH INSTRUCTIONS........ I

Il. THE SANCTION OF DISBARMENT IS

NOT JUSTIFIED BY THE RECORD

OR OTHER MATTERS PRESENTED

BEFORE THE BOARD OR THIS COURT ....5

CO ign ks oud ae raed heedans 10

Statues Cited:

Fifth Amendment, United States Constitution ...... 4

Sixth Amendment, United States Constitution ...... 4

Fourteenth Amendment,

NN eT POePerer Terrier errr’ 4

Authorities Cited:

D.C. Bar Disciplinary Rule XI, §7(2)........... 2

D.C. Bar Disciplinary Rule XI, §7(3) .............. 9

Cases Cited:

In re Banks, 461 A2d 1038 (DC App 1983)......... 5

In the Matter of Burton,

OTE FEA OPE A AGO) ass icine 6b5s i ccvwivns 8

In re Cope, MSS Be F357, TIO CE FOG e) ccc cccee 6

In re Gilchrist, No. 84-1162 (DC App 1985) ........ 7

In re Harrison, 461 A2d 1034 (DC App 1983) ... 7,8

A-18

In re Hines, No. M-141-82 (DC App 1984) ......... 9

Office of Disciplinary Counsel v. Lewis

Be 6

in ve Quimby, 359 F2d 257 (19GB). .ccccccccccccess S

In re Reback, 487 A2d 235 (DC App 1985)......... 8

In re Ruffalo, 390 US 544, 550 (1968) ............. 2

In re Thorup, 432 A2d 1221, 1225 (DC 1981)....... 2

In re Williams, 464 A2d 115 (DC 1982) ............ 2

In re Wilson, 81 N.J. 451, 455 n. 1,

46D ADE TESS, Tia We Gere nth dk coccéccccecs 7

THE STATEMENT OF THE CASE

This matter is before the Court on the report of Hearing

Committee Number Five, dated June 26, 1985 and the

report of the Board on Professional Responsibility dated

November 4, 1985.

An evidentiary hearing was held on January 3, 1985,

before the Hearing Committee. Respondent was out of the

country and consequently, not present at the hearing. He

was represented by counsel, James W. Cobb, Esquire.

Both Respondent and Bar Counsel were provided an

opportunity to supplement the record after the hearing and

both did so.

The hearing Committee found that Respondent had

violated DR9-103(A)—misappropriation, DR1-102(A\(4)

—dishonesty, and DR6-101(A\(3)—neglect. The Com-

mittee recommended that Respondent be disbarred from

the practice of law.

The Board on Professional Responsibility agreed with

the findings of Hearing Committee and the recommended

sanction.

A-19

ARGUMENT

I. RESPONDENT HAS BEEN DENIED

PROCEDURAL AND SUBSTANTIVE DUE

PROCESS AND THEREFORE THIS

PROCEEDING SHOULD BE DISMISSED OR

REMANDED WITH INSTRUCTIONS.

The District of Columbia Bar Disciplinary Rule XI, §7(2).

states:

“{ijf there are any issues of fact raised by the

pleadings, or if the Respondent requests the

opportunity to be heard in mitigation, the hearing

committee shall serve a notice of hearing upon Bar

Counsel and the Respondent, or his counsel,

stating the date and place of the hearing . . . shall

advise the Respondent that he is entitled to be

represented by counsel, to cross-examine

witnesses, and to present evidence on his own

behalf.”

In the case at bar, Respondent has not been allowed the

opportunity to cross-examine the petitioner's missing

witnesses based upon the issues. This is even more serious

by the fact that contrary affidavits and exhibits were

submitted by both Respondent and petitioner's witnesses.

In the matter of Jn re Williams, 464 A2d 115 (DC 1982),

the Court remanded the case for lack of procedural due

process. This Court stated in support of its actions that

disciplinary proceedings are ‘quasi-criminal in nature and

that an attorney who is subject of such proceedings is

entitled to procedural due process safeguards.” /d. at 119.

See also, Jn re Ruffalo, 390 US 544, 550 (1968); in re

Thorup, 432 A2d 1221, 1225 (DC 1981). Thus, “the

procedural requirements which apply in attorney

disciplinary proceedings are analogous to those of

‘contested cases’. Jd. at 119. See also, Jn re Thorup, supra.

A-20

In the case of /n re Thorup, supra, the court dismissed the

petition because “the committee improperly used letters

written by Walton (the petitioner’s witness) as substantive

evidence.” /d. at 1226. The Court further stated that “the

Hearing Committee was not correct in accepting the docket

entries as establishing the charge and then shifting the

burden to the Respondent to explain his actions.” /d. at

1226.

In the case at bar, Bar Counsel has relied only on docu-

ments and letters to support its case. Petitioner’s missing

witnesses were not subpoenaed nor required to testify; thus,

the Hearing Committee nor the Board on Professional Re-

sponsibility had an opportunity to observe the missing

witnesses’ demeanor, etc. The observed demeanor and right

of cross-examination demeanor (a part of testimonial)

evidence is important for it helps the trier of the facts, the

Hearing Committee or the Board on Professional

Responsibility and Respondent’s counsel to help determine

the facts, i.¢., innocence or guilt and truth as opposed to

non-truth.

a

Also, the fact that Respondent’s affidavit and exhibits

disputed petitioner’s affidavit emphasized and dramatized

the need for cross-examination in this matter, more than

any other, as set forth in Disciplinary Rule XI, §7(2). This

raised a question of fact that even under Civil Rule 56 of the

Superior Court of the District of Columbia would not )

support Summary Judgment or disposition in view of what

this record reflects.

The matters which were entrusted to Mr. Franklin were,

in fact, completed and any remaining disputes that may

have remained were of a civil nature, pure and simple. This

was the only reason counsel was employed to seek damages

in any way possible. To accomplish this, the law firm first

initiated the proceeding by the preparation of Interroga-

tories for their client to sign and with suspect motives have

their client appear to document the specific alleged

violations of the District of Columbia Code of Professional

iceaeeaiitie aati

A-21

Responsibility (B.C.Ex.1). After an answer with explana-

tion was submitted by Respondent (B.C.Ex.2), Counsel

remained unsatisfied or presumed that Bar Counsel's office

was incapable of doing what it is chartered to do, proceeded

literally to lecture Bar Counsel in a Twelve (12) page brief

on why charges should be filed against Respondent.

(B.C.Ex.3) If it does not raise professional/ ethical

questions regarding the other submissions while omitting

intentionally or refusing to respond to the defense of other

affairs between Respondent and the missing witnesses. It is

insulting to the Office of Bar Counsel, the Disciplinary

process and this Court for these exhibits and submissions to

have the effect of reducing this process to that of a collection

agency. Their letter dated January 19, 1984, stating that

they would accept One Hundred Thousand ($100,000)

Dollars as settlement based on disputed damages in

exchange for halting this procedure (R-EOI), is a

monument to that suspicion to which this Court should not

become an instrument. There have been no damages sus-

tained by the parties and any delays were the result of un-

refuted judgment and caution exercised by Respondent that

his client not be the subject of a fraudulent scheme. Whether

in error or not this was a decision and coupled Respondent’s

unrefuted claim of his inability to confer regularly with the

missing witness or the alternative (alter ego) corporate

entity. Respondent's affidavit reaffirms his letter to Bar

Counsel that there were additional matters between the

parties (B.C.Ex.2). It is not denied by new counsel that there

is no damage in spite of their effort to extract ($100,000).

This is even more suspicious and should be considered by

this court in weighing the procedural and substantive due

process considerations. Counsel could not improve upon

the justification for this argument than the quote from the

Amendments of the Constitution of the United States

which succinctly and appropriately provide:

A-22

Fifth (V) Amendment

“no person . . . shall be held to answer for a capital

or otherwise infamous crime, . . . nor be deprived

of life, liberty, or property without due process of

aire

Sixth (VI) Amendment

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy trial. . . . to have

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor and to have the assistance of counsel for his

defen(c)e.”

Fourteenth (XIV) Amendment

“. .. No state shall make or enforce any law which

shall abridge the privileges or immunities of the

citizens of the United States... nor shall any state

deprive any person of life, liberty, or property

without due process of law. . .”

It is interesting that in this same exhibit new counsel offers

to pay Respondent whatever is owed, on the other hand,

attempt to extract One Hundred Thousand ($100,000)

Dollars.

Il. THE SANCTION OF DISBARMENT IS NOT

JUSTIFIED BY THE RECORD OR OTHER

MATTERS PRESENTED BEFORE THE BOARD

OR THIS COURT

In the matter of Jn re Banks, 461 A2d 1038 (DC App

1983), the Court held that neglect of professional obliga-

tions may warrant public censure. In this matter, Respon-

dent had been privately reprimanded twice before. Once for

a similar incident. The Hearing Committee stated “we

might have considered a reprimand the appropriate sanc-

tion in this case. However, we are bound to take into

A-23

account Respondent’s record of prior discipline.” /d. at

1042.

In this case at bar, Respondent had no prior reprimands

of admonitions or dereliction.

Respondent’s charges in /n re Banks, supra, were not

compounded with other disciplinary violations. However,

the Hearing Committee seems to suggest that had Respon-

dent’s charge been compounded, the ordinary sanction

might be “a suspension of six months.” Id. at 1043.

In the present case, although Respondent was charged

with more than one violation, the Hearing Committee

seemed to ignore the charge relating to misconduct involv-

ing dishonesty and moral turpitude (BPR Rep. and Recom.

n.1).

However, the incontradicted evidence supports the

position that this Respondent did not neglect the complain-

ant’s interest for he diligently strived to gain the

information needed to serve his “post-client” in the best

possible way.

This is to clear because petitioner's missing witnesses did

not even offer any expert testimony as to a better method of

handling their matters.

In the matter of Jn re Reback, 487 A2d 235 (DC App

1985), Respondent’s Reback and Parsons were suspended

for a year and a day after being convicted of neglect of a

legal matter, forgery, misrepresentation as to the status of

client’s case, and filing a false statement.

The complainant had apparently hired Respondents to

handle her divorce case. Time elapsed after filing of the first

complaint and the case was dismissed. Respondent Reback

prepared another complaint similar to the first and forged

petitioner’s name in front of Respondent Parsons, had the

pleading notarized, and the complaint was filed with the

Court.

A-24

These were serious and almost criminal offenses, but

because of Respondent’s previous record the above

sanction was reached. “[T]he fact that an attorney has had

no prior disciplinary actions is “highly relevant and ma-

terial” to the determination of sanctions.” /d. at 244. See

also, In re Cope, 455 A2d 1357, 1361 (DC 1983).

Again, in the matter of /n re Reback, supra, Respondents

were also accused of gregious negligence since complain-

ant’s brother continuously contacted Respondent concern-

ing his sister’s divorce case. The Court held that clear and

convincing evidence had not been given to support a finding

that his neglect was conscious or intentional since the

Respondent had not fabricated excuses. He had honestly

felt that he was working on behalf of his client’s interest and

that these matters should be heavily weighed in determining

any sanction of Respondent.

In the matter of the Office of Disciplinary Counsel v.

Lewis, 426 A2d 1138 (Pa. 1981), the presiding Judge held

that

“the commingling and converting of client funds,

misrepresenting” that certain bills had been paid,

“and neglecting and intentionally failing to

properly represent client [sic] warrants disbar-

ment.” /d. at 1138.

However, the Judge reached that decision based on the

Respondent’s past admonitions and his failure to make

restitution.

Our client has no prior record of informal admonitions,

has not been convicted of misconduct, and has assured that

there were no legal or financial losses.

In a relatively more serious matter, /n re Gilchrist, No.

84-1162 (DC App 1985), the Court held that public censure

was the sanction to impose. In this instance, Respondent

had deposited a $1,500.00 dollar settlement check into his

personal bank account. He wrote various checks causing

A-25

the balance to drop below the deposited amount for three

‘ months.

The court considered the Respondent’s testimony as

“barely hold together and raises several questions. [sic]”

However, his testimony was considered credible.

In the case at bar, Respondent’s testimony too, should be

considered credible since he has been barred in the District

of Columbia for numerous years and has never been repri-

manded for any dereliction in the past.

Although the Bar Counsel alludes to Respondent being

overdrawn at:the time the $21,282.00 dollar check was

deposited, there was an unanswered question which was

therefore an issue as to whether the Complainant owed

Respondent $6,487.00 dollars. Arguendo, the remaining

balance in Respondent’s account was surely enough to

cover what may have been due between either party.

In the matter of Jn re Harrison, 461 A2d 1034 (DC App

1983), the Court held a Respondent should be suspended

from practice for a year and a day. /d. at 1035. In this

mattter, Respondent endorsed a check received in settle-

ment of a personal injury matter and deposited it into a

general funds account on October 12, 1979. When the client

inquired as to his portion of the settlement, Respondent

claimed that he was extremely busy. Subsequently, Respon-

dent wrote the client a check which returned for insufficient

funds. In addition, Respondent had not paid medical bills

for petitioner which he had agreed to do until January, 1980.

The Court cited Jn re Wilson, 81 N.J. 451, 455 n.1, 409

A2d 1153, 1155 n.1 (1979) as containing the appropriate

definition of misappropriation of funds. [M]isappropria-

tion is any unauthorized use of client’s funds entrusted to

him, including not only stealing but also unauthorized

temporary use for the lawyer’s own purpose whether or not

he denies any personal gain or benefit therefrom.”

Further, in the present case, Respondent received and

deposited funds into an account belonging to him as

“disputed offset” given additional funds on deposit with his

Bank which is uncontraverted in addition to what should be

construed as a disputed offset in the absence of evidence to

the contrary.

In re Harrison, supra, the Court stated that disbarment

was the ordinary sanction for misappropriation cases in the

past, but that Harrison relied upon his account balance

rather than his running balance and that “did justify a lesser

sanction”. /d. at 1036.

In this matter, Respondent relied on his account balance

as opposed to his running balance. He never avoided his

client and corrected the oversight immediately.

In the matter of /n re Quimby, 359 F2d 257 (1966), the

Court held that the embezzling of funds justified disbar-

ment. In that case, appellant withdrew large sums of money

from estate accounts to ease his financial burden. This is not

the case here. The funds which were withdrawn from the

account could at the most be considered as “commingled”

as opposed to “embezzled” funds. Respondent did not

wrongfuly convert nor fraudulently take any funds from the

account. Respondent has continually taken the position

that he was due certain additional funds for other services

rendered and other ventures with the petitioners’ missing

witnesses.

In the Matter of Burton, 472 A2d 831 (DC App 1984),

this Court recommended disbarment after finding that the

Respondent had commingled and misappropriated funds in

addition to misappropriation of funds in another matter.

By comparison, in this matter, Respondent did not

misrepresent anything that he had done on behalf of Peti-

tioner’s missing witness, nor did he make any misrepresen-

tations to the Bar Counsel. His position has been consistent

A-27

and clear and at the very least represent an honorable

question of fact deserving of some medium of respect if not

due constitutional considerations.

In this matter, Respondent has had no prior disciplinary

record nor is there clear and convincing evidence that he

intentionally misappropriated the missing witnesses’ funds.

In the matter of /n re Hines, No. M-141-82 (DC App

1984), Respondent was charged with violation of disci-

plinary rules in two cases pertaining to the misappropria-

tion of funds. Again by way of comparison, the court held

that Respondent should be suspended for two years

although the Hearing Committee recommended public

censure. The Court based its conclusion on the fact that

Respondent had two similar charges against him and that

he had violated other disciplinary rules. In addition,

Respondent's conduct was not confined to one client.

In the case at bar, Respondent has been accused of

misappropriating funds of one client and the facts could be

considered similar to Hines, supra. Accordingly, it is

respectfully urged that the Court should find in this

instance, that at the most, Respondent's conduct

constituted simple negligence and impose a lesser sanction,

pursuant to BPR Rule XI, §7(3) which states:

In considering the appropriate order, the Court

shall accept the findings of fact made by the Board

unless they are unsupported by substantial

evidence of record, and shall adopt the

recommended disposition of the Board unless to

do so would foster a tendency toward inconsistent

dispositions for comparable conduct or otherwise

would be unwarranted. /d. at 1314. |

Respondent submits that BPR Rule XI, §7(3) should

apply because the Board’s recommendation of disbarment

would be inconsistent with comparable conduct as noted in

the cited cases. It suggests what some members of this Bar

have felt—that there are dual standards.

CONCLUSIONS

First, it is respectfully submitted that there is in fact, no

violation of any provision of the Code on Professional Re-

sponsibilitiy. Respondent should mot be subjected to this

process to serve as a method for some other suspicious

reasons.

Second, as argued previously, upon reflection any of us

might perform a service better or differently, but it does not

appear that any sanction against this Respondent should

result in disbarment. His actions do not justify the chages

and specification, nor this maximum sanction.

Respectfully submitted,

/S/

JAMES W. COBB

Attorney for Respondent

1004 Sixth Street, N. W.

Washington, D. C. 20001

387-1100

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Reply Brief,

was hand delivered to Office of Bar Counsel, Thomas H.

Henderson, Jr., Bar Counsel, Board on Professional

Responsibility and to Mark W. Foster, Chairman, Board

on Professional Responsibility, 515 - Sth Street, N.W..,

Washington, D. C. 20001, this 9th day of January, 1986.

iS;

JAMES W. COBB, ESQUIRE

A-29

APPENDIX F

DISTRICT OF COLUMBIA

COURT OF APPEALS

No. 85-1643

In the Matter of

DAVID M. FRANKLIN

A Member of the Bar of the

District of Columbia

Court of Appeals

BRIEF FOR THE

OFFICE OF BAR COUNSEL

THOMAS H. HENDERSON, JR.

Bar Counsel

Bar Number 144089

SAMUEL MCCLENDON

Assistant Bar Counsel

for Special Litigation

Bar Number 316828

Office of Bar Counsel

515 - Sth Street, N.W.

Building A, Room 127

Washington, D.C. 20001

Telephone: 638-1501

DISTRICT OF COLUMBIA

COURT OF APPEALS

No. 1643

In the Matter of

DAVID M. FRANKLIN

A Member of the Bar of the

District of Columbia

Court of Appeals

CERTIFICATE REQUIRED BY RULE 28(a\1) OF THE

GENERAL RULES OF THE

DISTRICT OF COLUMBIA COURT OF APPEALS

The undersigned, counsel of record for Bar Counsel,

District of Columbia Bar, certify that the following list of

parties appeared below:

District of Columbia Bar

S/

James W. Cobb, Esquire

This representation is made in order that Judges of this

Court, inter alia, may evaluate possible disqualification or

recusal.

/S;

Thomas H. Henderson, Jr.

Bar Counsel

/S/

Samuel McClendon

Attorney of Record

for Bar Counsel

A-31

TABLE OF CONTENTS

PAGE

Table OF AutOrities. oo bck ec ik cece tee ceseacees il

fesues Presemted .... 0. ccccncccccccccnewesvessens ill

Counterstatement of the Case... ..... 2... cee ee ee eee I

A. Background ......... 0. eee ee ee cece eee eeeees I

B. The (RPC Gre rrr re rere Pr

AIQuMent .......- eee eee eee eee teen eee e cence eens 6, 8

Cs tS cca dakeaa ee e564 ees meV ORES eS 9

Certificate of Service ........ ccc cece ccc cece ecceces 10

TABLE OF AUTHORITIES

CASES PAGE

Attorney Grievance Commission v. Boehm,

446 A.2d 52 (Md. 1982)... ......ccccccccccescecees 8

In re Burton, 472 A.2d 831 (D.C. 1984) ..........-05- 9

Garris v. United States, 465 A.2d 817 (D.C. 1983)..... 6

In re Harrison, 461 A.2d 1034 (D.C. 1983)-.........-- 8

In re Hines, 482 A.2d 378 (D.C. 1984) ........6. 500s 9

In re Quimby, 359 F.2d 257 BONE Fi ichicsnds cata 0s Y

In re Smith, 403 A.2d 296 (D.C. 1979) ........cceeee 7

STATUTES CITED

Sixth Amendment, United States Constitution ..... 6, 8

A-32

RULES

District of Columbia Court of Appeals,

FONE 7aGs ON. FUDD usc sce cewkeeeher ects disebyi 7

District of Columbia Court of Appeals,

SOU FU OLED Aik kad ciattints h debi bn apedeiaue ne 6

ISSUES PRESENTED

1. Whether Respondent was denied procedural or sub-

Stantive due process.

Il. Whether disbarment is the normal sanction for mis-

appropriation absent extenuating circumstances.

STATEMENT OF CASE

Background

On November 8, 1984, Bar Counsel filed a petition

against Respondent in the above matter. On January 3,

1985, a hearing was held before Hearing Committee Num-

ber Five, comprised of George W. Miller, Esquire, Chair,

and Wendell P. Gardner, Esquire.

Respondent was not present at the Hearing but was

represented by counsel. Bar Counsel did not call any wit-

nesses but relied on documentary evidence to prove his case.

On June 26, 1985, the Hearing Committee filed its report

with the Board on Professional Responsibility (Board). In

its report to the Board, the Hearing Committee found that

Respondent violated Disciplinary Rule 9-103(A) of the

Code of Professional Responsibility when he misappropri-

ated client funds. (H.C. Rpt. at 9).! The Hearing Commit-

'“H.C. Rpt.” refers to the Hearing Committee's report. “Bd. Rpt.”

refers to the Board's report. “Tr.” refers to the transcript of the hearing.

“BE” refers to Bar Counsel's exhibits. “RE” refers to Respondent's

exhibits.

A-33

tee also found that Respondent violated Disciplinary Rule

1-102(A)(4) because his unauthorized use of client funds

constituted dishonesty within the meaning of that rule.

(H.C. Rpt. at 11). Further, the Hearing Committee found

that Respondent viclated Disciplinary Rule 6-101(A)(3)

because Respondent's failure to record a $1,105,000 loan

for approximately a year and four months constituted

neglect of a legal matter entrusted to him. (H.C. Rpt. at 7).

On July 15, 1985, Respondent filed exceptions to the

Hearing Committee’s Report. Subsequently, the Board on

Professional Responsibility established a briefing schedule

and set oral argument for September 26, 1985. .

On November 4, 1985, the Board filed its Report and

Recommendation (Bd. Rpt.) with this Court. The Board

adopted the findings of fact of the Hearing Committee as

supported by substantial evidence of record and adopted

the Hearing Committee’s recommendation that Respon-

dent be disbarred. Subsequently, Respondent noted

exceptions to the Board's report.

FACTS

The Undisputed Facts Found by the

Hearing Committee and Adopted by

The Board are as Follows:

On May 20, 1981, International General Re-

sources W.L.L. (IGR) entered into a loan

agreement with Darwish International N.V., Inc.,

(Darwish), whereby IGR loaned Darwish

$1,105,000 to be secured by a security deed from

Darwish to IGR on 130 lots located in Henry

County, Georgia (Bar Counsel Exhibits(BE 5 and

6)).

The loan agreement provided that the lots com-

prising the secured property would be released

A-34

from the security deed as they were sold by

Darwish and repayment was made toIGR. Under

paragraph 7 of the agreement, IGR was expressly

required to deliver executed quitclaim deeds for

each lot within the secured property to the escrow

agent, Pioneer National Title Insurance Com-

pany, “[s]imultaneously with execution and

delivery of the [executed] security deed. . . .” (BE

5). Upon delivery of the executed quitclaim deeds,

the escrow agent would record IGR’s security

interest in the property. (BE 14).

On April 22, 1981, IGR gave Respondent a Power

of Attorney authorizing him, inter alia, to: 1) ex-

ecute the loan agreement on behalf of IGR; 2)

execute the quitclaim deeds; and 3) deliver the

quitclaim deeds to the escrow agent, thereby

insuring that the security deed protecting IGR

would be recorded. (BE 4).

Pursuant to the loan agreement, Darwish exe-

cuted and notarized the security deed on August

14, 1981. (BE 8).

On August 17, 1981, Darwish delivered the deed

to the escrow agent. (BE 7). That same day

Darwish sent to Respondent the quitclaim deeds.

(BE 8). !t was then Respondent's responsibility to

execute the quitclaim deeds and deliver them to

the escrow agent so that the security deed could be

recorded, thereby protecting IGR’s interest.

Between August and November, 1981,

Respondent received repeated inquiries from IGR

and Darwish asking why he had not executed the

quitclaim deeds so that the security deed could be

recorded. (BE 9, 10, 11, 12 and 13).

In June 1982—ten months after it was Respon-

dent’s duty to act—Respondent received a letter

from the escrow agent informing him that the

A-35

security deed remained unrecorded. Respondent

did nothing. IGR’s $1,105,000 loan to Darwish

remained unsecured. (BE 14).

On December 18, 1982— over 16 months after it

was Respondent's duty to act—IGR revoked the

power of attorney given to Respondent. (BE 16

and |7).

Four days later, on December 22, 1982, new

counsel had executed the quitclaim and IGR’s

security was recorded. (BE 18).

In addition to authorizing Respondent to act on

IGR’s behalf in connection with ‘he loan agree-

ment, the Power of Attorney from IGR to

Respondent authorized Respondent to “collect,

receive, and receipt any and all monies due the

corporation under the terms and conditions of the

loan agreement, whether as repayment of

principal or payment of interest, or otherwise, and

to remit same as provided under the terms and

conditions of the Loan Agreement.” (BE 4).

On or about June 8, 1982, Respondent received

from Darwish a check for $21,282 made payable

to IGR (BE 23). This check represented the first

payment due IGR under the loan agreement. (BE

19).

On June 9, 1982, Respondent deposited the check

into an account at the First National Bank of

Atlanta, No. 16 061 302, labeled “David M.

Franklin and Associates Trust Account.” (BE 24

and 24a).

David M. Franklin and Associates is a

management and consulting firm. At the time,

Respondent's law firm was Franklin & Axam.

The law firm had a distinct and separate escrow

account, but Respondent did not deposit the IGR

check into that escrow account.

A-36

On the day Respondent deposited the check for

$21,282 in the “David M. Franklinand Associates

Trust” account, his balance was overdrawn by

$1,602.62. (BE 24). Thus, immediately after

Respondent deposited the check, the balance in

the account was $19,680.38. (BE 24).

That same day, checks against the account for $50

and $7,000 cleared, causing the balance in the

account to fall to $12,630.38, a sum well below the

$21,282 which Respondent owed IGR. (BE 24).

Subsequently, Respondent made other with-

drawals from the account not related to his

representation of, and not authorized by, IGR.

On July 12, 1982, the balance fell to $11.60. (BE

28). The account was overdrawn in October and

December of 1982. (BE 28 and 30).

On December 15, 1982, Respondent wrote a check

to IGR for $14,795, a sum which represented the

difference between the $21,282 Respondent had

received on IGR’s behalf less $6,487 which

Respondent claimed as a fee or “disputed offset.”

(BE 32).

IGR deposited the check for $14,795 but it was

returned due to insufficient funds in Respondent's

trust account. (BE 32).

A-37

ARGUMENT

I. Respondent Was Not Denied Procedural or Sub-

stantive Due Process

Respondent argues that he was denied his Sixth Amend-

ment right of confrontation because the complainant (his

client) was not called by Bar Counsel as a witness at the

evidentiary hearing. As Respondent argued in his brief, he

“has not been allowed the opportunity to cross-examine the

petitioner's missing witnesses based upon the issues.”

(Resp. Brief at p. 1). Under Rule XI, Section 13(1), of the

Rules Governing the District of Columbia Bar, “A Respon-

dent may, subject to Superior Court Civil Rule 45, compel

by subpoena the attendance of witnesses and the

production of pertinent books, papers, and documents

before a hearing committee after formal disciplinary pro-

ceedings are instituted.” Thus, Respondent had the same

opportuniiy to call the complaining witness as did Bar

Counsel. Thus, to the extent that Respondent did not have

an opportunity to cross-examine the complaining witness,

it was because of Respondent’s own failure to call him.

Respondent may not now shift the burden to Bar Counsel

to have called the complaining witness. Especially when one

considers that at the conclusion of the hearing held on

January 3, 1985, the Chairman informed Respondent that

he could move for leave to call witnesses but Respondent

did not. (HC Tr., p. 74). Therefore, Bar Counsel submits

that Respondent's argument is without merit.

Moreover, for the Hearing Committee or the Board to

have drawn an adverse inference from Bar Counsel's failure

to call the complaining witness, they would have had to

believe that the complaining witness would both elucidate

the transaction and that he was “peculiarly available” to the

non-producing party. Garris v. United States, 465 A.2d 817,

822 (D.C. 1983). Here, there was no showing that the

complaining witness was unavailable to Respondent and

Bar Counsel had no reason to believe that the complaining

witness would elucidate the transaction.

A-38

a

It should be noted that Bar Counsel has the burden of

proof ina disciplinary proceeding. See Board Rule 10.4. As

the Board noted, Bar Counsel also has the discretion to

prove his case in any manner that he chooses. In this case,

Respondent did not contest the authenticity of the Bar

Exhibits. Therefore, Bar Counsel chose to meet his burden

through the introduction of documentary evidence. The

Board found that the documentary evidence was

substantial evidence of record that Respondent had

neglected a legal matter entrusted to him and had misappro-

priated client funds. Therefore, under the Court's standard

of judicial review the Board's findings should be accepted

by the Court. D.C. App. Rule XI, §7(3); See also In re

Smith, 403 A.2d 296 (D.C. 1979).

With regard to the charge of neglect, the evidence showed

that Respondent was given a power of attorney by IGR to

handle a loan transaction in which he was required to secure

a $1,105,000 debt on IGR’s behalf and that he did not do it.

For close to a year and one-half, Respondent left a

$1,105,000 loan unsecured and unprotected. The evidence

also demonstrated that the borrower, Darwish was able to

borrow more money from another lender against the land in

question because Respondent failed to file the deed securing

the loan. (BE 18).

The evidence further showed that during the year and

one-half period, IGR consistently confronted Respondent

about executing the necessary documents to secure the

loan. Moreover, the escrow agent also confronted

Respondent about executing the necessary documents.

However, Respondent still did not execute the quitclaim

deeds nor did he deliver them to the escrow agent as he was

required. In fact, it was only after Respondent had been

replaced as IGR’s counsel that the quitclaim deeds were

executed and delivered to the escrow agent.

With regard to the charge that Respondent misappro-

priated client funds, Respondent's monthly bank

A-39

statements and checks? from the David M. Franklin &

Associates trust account demonstrate that Respondent's

running balance fell below the amount that he owed IGR

immediately upon depositing IGR’s funds into this trust

account.? Specifically, on June 9, 1982, Respondent owed

IGR $21,282 but his running balance was only $20,681.38.

Subsequently, Respondent continued to misappropriate

IGR’s funds out of the trust account so that by July 12,

1982, the funds in the account had dropped to $11.60 (at a

time when Respondent still owed IGR $21,282).

The checks and bank statements from Respondent’s trust

account also show that Respondent knowingly used IGR’s

money as his own fora period of seven months. Specifically,

the checks and bank statements show that Respondent

spent IGR’s money to finance recording sessions, to pay his

Carte Blanche bills, to pay METRO Music, and for his

personal use. |

Il. The Normal Sanction For Misappropriation of

Client Funds, Absent Extenuating Circumstances, Is

Disbarment

The Court must adopt the recommended sanction of the

Hearing Committee “unless to do so would foster a

tendency toward inconsistent dispositions for comparable

conduct or otherwise would be unwarranted.” District of

2In Attorney Grievance Commission v. Boehm, 446 A.2d 52,54(MD

1982), the Maryland Court of Appeals stated that it:

. .. Cannot conceive of any clear or more convincing evidence

of [attorney's] misappropriation of . . . funds than that

supplied by the escrow account, bank records, and [the

attorney's] failure to explain exactly how these funds were

used.

‘In In re Harrison, 461 A.2d 1034, 1036(D.C. 1983) the D.C. Court

of Appeals stated that once the running balance in an attorney's trust

account falls below what he owes his client misappropriation has

occurred.

A-40

Columbia Bar Rule XI, Section 7(3). In the District of

Columbia, the normal sanction for misappropriation of

funds, absent extenuating circumstances, is disbarment. /n

re Quimby, 359 F.2d 257 (D.C. 1966); Jn re Burton, supra;

In re Mininberg, 484 A.2d 149 (D.C. 1984). In Jn re Hines,

482 A.2d 378 (D.C. 1979) and /n re Harrison, supra, the

Court found extenuating circumstances where the mis-

appropriation was inadvertent (e.g., due to sloppy

bookkeeping practices rather than an intention to convert

client funds). Thus, the Court held in those cases that a

lesser sanction than disbarment was appropriate. In this

case, however, the Board found no extenuating

circumstances which would justify a sanction less than

disbarment. (Bd. Rpt. at 12).

Moreover, Respondent not only misappropriated client

funds, but neglected a client by leaving a $1,105,000 loan

unsecured for approximately a year and one-half. In cases

where the Court has found misappropriation, coupled with

other violations of the Disciplinary Rules, the Court has not

hesitated to disbar the attorney. /n re Mininberg, supra.

Thus, the Board’s recommendation for disbarment falls

well withing the range of sanctions imposed for comparable

misconduct and should be upheld by the Board.

CONCLUSION

For the foregoing reasons, the Court should affirm the

Report of the Board and should order that Respondent be

disbarred.

Respectfully submitted,

/S/

Thomas H. Henderson, Jr.

Office of Bar Counsel Bar Counsel

515 - Sth Street, N.W. /S/

Building A, Room 127 Samuel McClendon

Washington, D.C. 20001 Assistant Bar Counsel

Telephone: 638-1501 for Special Litigation

A-41

APPENDIX G

FILED APR 30, 1986

/S/ Clerk pISTRICT OF COLUMBIA

COURT OF APPEALS

No. 84-462

IN THE MATTER OF DAVID M. FRANKLIN,

RESPONDENT.

A Member of the Bar of the

District of Columbia Court of Appeals

On Review of a Report and Recommendation

of the Board on Prefessional Responsibility

(Submitted April 15, 1986 Decided April 30, 1986)

BEFORE: Pryor, Chief Judge, Nebeker, Associate Judge,

and Pair, Senior Judge.

ORDER

In this disciplinary case, respondent is charged with

neglecting a legal matter, dishonesty, and misappropriation

of client funds. The Board on Professional Responsibility

hes recommended that the respondent be disbarred from

the practice of law. We conclude that respondent has

violated Disciplinary Rules DR 9-103(A) (failure to pre-

serve identity of funds of a client), DR 6-101(A)(3) (neglect

of a legal matter), and DR 1-102(A)(4) (conduct involving

dishonesty).We therefore agree with the Board’s recom-

mendation of disbarment, as set forth more fully in the

Board’s Report and Recommendation appended hereto

and incorporated herein by reference.

Accordingly, it is ORDERED that respondent, DAVID

M. FRANKLIN, is disbarred from the practice of law in the

District of Columbia effective thirty (30) days from the date

of this order. D.C. Bar R. X1§ 19(3). See In re Burton, 472

A.2d 831 (D.C.), cert. denied, 105 S.Ct. 563 (1984); /n re

Minninberg, 485 A.2d 149 (D.C. 1984); In re Burka, 423

A.2d 181 (D.C. 1980) (en banc).

PER CURIAM

/S/ DEPUTY CLERK

A442). =

APPENDIX H

DISTRICT OF COLUMBIA COURT OF APPEALS

In the Matter of

David M. Franklin

Respondent

No. 84-462

MOTION FOR LEAVE TO FILE PETITION FOR

REHEARING LATE

Comes now the Respondent, David M. Franklin by and

through his attorney, James W. Cobb represents to this

Honorable Court, as follows:

1. That Respondent and his counsel were unable to

communicate with each other after the April 30, 1986 order

by the Court because the Respondent was away from his

place of residence, which is the state of Georgia and

although a member of the Bar of the District of Columbia

does not practice law in this jurisdiction.

2. In this case there were no oral arguments in regard to

the factual evidence presented nor were there oral

arguments in regard to the constitutional issues raised by

the Respondent.

3. The Court did not write an opinion on the issues raised

by the Respondent, i.e., he had been denied procedural and

substantive due process.

4. The order issued by the Court would be more

meaningful and instructive in future litigations if the

Honorable. Judges of the Court addressed the constitu-

tional issues raised by the Respondent.

WHEREFORE, the Respondent respectfully request

leave of Court to file its Petition for Rehearing late in that it

would appear that justice would best be served if the consti-

tutional issues raised were addressed by this Court.

Respectfully submitted,

1004 6th Street, N.w. /S/ James W. Cobb (2253)

Washington D.C. 20001 Attorney for Respondent

A-43

APPENDIX I

DISTRICT OF COLUMBIA COURT OF APPEALS

In the Matter of

David M. Franklin

Respondent

No. 84-462

MOTION FOR LEAVE TO FILE PETITION FOR

REHEARING EN BANC LATE

Comes now the Respondent, David M. Franklin by and

through his attorney, James W. Cobb, represents to this

Honorable Court, the following:

1. That Respendent and his counsel were unable to

communicate with each other after the April 30, 1986 order

by the Court because the Respondent was away from his

place of residence, which is the state of Georgia, and

although a member of the Bar of the District of Columbia

has never practice law in this jurisdiction.

2. The Court did not write an opinion on the issues raised

by the Respondent in that he had been denied procedural

and substantive due process.

3. The order issued by the Court would be more mean-

ingful and instructive in future litigation only if the

Honorable Judges of the Court had addressed the

constitutional issues raised by the Respondent and not the

Hearing Committee members.

4. Inasmuch as the proceedings involves a question of

exceptional importance, constitutional rights, it would

appear that a rehearing by the full Court is warranted.

WHEREFORE, the Respondent respectfully requests “

leave of Court to file his Petition for Rehearing En Banc

late.

Respectfully submitted,

/S/ James W. Cobb (2253)

Att for R dent

1004 6th Street, N.W. ttorney for Responden

Washington, D.C. 20001

Telephone: 387-1100

pene a

A-44

APPENDIX J

DISTRICT OF COLUMBIA

COURT OF APPEALS

In the Matter of

David M. Franklin

Docket No. 84-462

A Member of the Bar of the

District of Columbia

Court of Appeals

OPPOSITION TO PETITION FOR

REHEARING AND TO PETITION

FOR REHEARING EN BANC

On April 30, 1986, a panel of this Court agreed with the

recommendation of the Board on Professional Responsi-

bility that Respondent be disbarred from the practice of law

for misappropriation of client funds in violation of Disci-

plinary Rules 9-103(A) (failure to preserve identity of client

funds) and 1-102(A)(4) (conduct involving dishonesty); and

neglecting a legal matter entrusted to him in violation of

Disciplinary Rule 6-101(A)(3) (neglect of a legal matter).

ARGUMENT I

Respondent was not Denied

Procedural or Substantive Due Process

Respondent argues that he was denied his Sixth Amend-

ment right of confrontation because the complainant (his

client) was not called by Bar Counsel as a witness at the

evidentiary hearing. As Respondent argued in his Petition

for Rehearing he “has not been allowed the opportunity to

cross-examine the petitioner’s missing witnesses based

upon the issues.” (Petition for Rehearing, page |, para 3.)

Under Rule XI, Section 13(1), of the Rules Governing the

District of Columbia Bar, “A Respondent may, subject to

Superior Court Civil Rule 45, compel by subpoena the

attendance of witnesses and the production of pertinent

A-45

books, papers, and documents before a hearing committee

after formal disciplinary proceedings are instituted.” Thus,

Respondent had the same opportunity to call the

complaining the deed securing the loan. (BE 18). These

facts, supported by substantial evidence of record, were

undisputed by Respondent below.

The evidence further showed that during the year and

one-half period, IGR consistently confronted Respondent

about executing the necessary documents to secure the

loan. Moreover, the escrow agent also confronted Respon-

dent about executing the necessary documents. However,

Respondent still did not execute the quitclaim deeds nor did

he deliver them to the escrow agent as he was required. In

faci, it was only after Respondent had been replaced as

IGR’s counsel that the quitclaim deeds were executed and

delivered to the escrow agent.

With regard to the charge that Respondent misappropri-

ated client funds, Respondent’s monthly bank statement

and checks? from the David M. Franklin & Associates trust

account demonstrate that Respondent’s running balance

fell below the amount that he owed his client immediately

upon depositing the client’s funds into this trust account. ?

Specifically, on June 9, 1982, Respondent owed IGR

$21,282 but his running balance was only $20,681.38. Sub-

sequently, Respondent continued to misappropriate his

2In Attorney Grievance Commission v. Boehm, 466 A.2d 52,54(MD

1982), the Maryland Court of Appeals stated that it:

. cannot conceive of any clear or more convincing

evidence of [attorney’s] misappropriation of .. . funds than

that supplied by the escrow account, bank records, and [the

attorney’s] failure to explain exactly how these funds were

used.

31n In re Harrison, 461 A.2d 1034, 1036(D.C. 1983) the D.C. Court

of Appeals stated that once the running balance in an attorney’s trust

account falls below what he owes his client misappropriation has

occurred.

A-46

client's funds out of the trust account so that by July 12,

1982, the funds in the account had dropped to $11.60 at a

time when Respondent still owed his client $21,282. «

The checks and bank statements from Respondent's trust

account also show-that Respondent knowingly used IGR’s

money as his own for a period of seven months. Specifically,

the checks and bank statements show that Respondent

spent IGR’s money to finance recording sessions, to pay his

Carte Blanche bills, to pay METRO Music, and for his

personal use.

ARGUMENT III

The Normal Sanction for Misappropriation of Client

Funds, Absent Extenuating Circumstances, is Disbarment

The Court must adopt the recommended sanction of the

Hearing Committee “unless to do so would foster a

tendency toward inconsistent dispositions for comparable

conduct or otherwise would be unwarranted.” District of

Columbia Bar Rule XI, Section 7(3). In the District of

Columbia, the normal sanction for misappropriation of

funds, absent extenuating circumstances,is disbarment. /n

re Quimby, 359 F.2d 257 (D.C. 1966); In re Burton, supra;

In re Mininberg, 484 A.2d 149 (D.C. 1984). In Jn re Hines,

482 A.2d 378 (D.C. 1979) and /n re Harrison, supra, the

Court found extenuating circumstances where the

misappropriai..n was inadvertent (e.g., due to sloppy

bookkeeping practices rather than an intention to convert

client fux.4s). Thus, the Court held in those cases that a

lesser sanction than disbarment was appropriate. In this

case, however, the Board found no extenuating circum-

stances which would justify a sanction less than disbarment.

(Bd. Rpt. at 12).

Moreover, Respondent not only misappropriated client

funds, but neglected a client by leaving a $1,105,000 loan

unsecured for approximately a year and one-haif. In cases

where the Court has found misappropriation, coupled with

A-47

other violations of the Disciplinary Rules, the Court has not

hesitated to disbar the attorney. /n re Mininberg, supra.

Thus, the panel’s recommendation for disbarment falls well

within the range of sanctions imposed for comparable mis-

conduct.

CONCLUSION

For the above reasons, the Office of Bar Counsel respect-

fully requests that the petition for Rehearing and for

Rehearing En Banc filed by Respondent be denied.

Respectfully submitted,

Ss)

Thomas H. Henderson, Jr.

Bar Counsel

iS)

Samuel McClendon

Assistant Bar Counsel

for Special Litigation

515 Fifth Street

Building A, Room 127

Washington, D.C. 20001

202-638-1501

A-48

DISTRICT OF COLUMBIA

COURT OF APPEALS

REC’D AUG 25, 1986

S,

Clerk

APPENDIX K

DISTRICT OF COLUMBIA

COURT OF APPEALS

In the Matter of

David M. Franklin

: Docket No. 84-84-462

A Member of the Bar of the

District of Columbia 85-1643

Court of Appeals

SUPPLEMENTAL MEMORANDUM

Comes now the Respondent, David M. Franklin, by and

through his attorney, James W. Cobb, and by way of a

Supplemental Memorandum in support of his Petition for

Rehearing and Other Relief, and represents to this

Honorable Court as follows:

ARGUMENT I

PETITIONER (RESPONDENT)

HAS BEEN DENIED BOTH PROCEDURAL AND

SUBSTANTIVE DUE PROCESS OF LAW

The District of Columbia Code Section |-1509(b) states:

“In contested cases, except as may otherwise be provided by

law . . . the proponent of a rule or order shall have the

burden of proof. Any oral or documentary evidence may be

received . . . [e]very party shall have the right to present in

A-49

person or by counsel his case, or defense by oral and docu-

mentary evidence, .. . and to conduct such cross-examina-

tion as may be required for a fu// and true disclosure of the

facts.”

Here the key words are “full and true” disclosure of the

facts. The Court has not been exposed to the full and true

facts because petitioner has not been given the opportunity

to cross-examine the complaining witness, thus leaving left

unexplained crucial facts. The complaining witness has

only submitted an affidavit which respondent has denied.

Thus raising issues of fact which procedurally entitles

respondent to cross-examine the complaining witness.

District of Columbia Bar Rule XI, Section 7(2). “If there are

any issues of fact raised by the pleadings. . . [t]he notice of

hearing shall advise the respondent that he is entitled to be

represented by Counsel, to cross-examine witnesses, and to

present evidence in his own behalf... .” Here, Bar Counsel

did not comport with the rule because the complaining

witness, with whom the issue of facts were raised never

appeared and it was Bar Counsel's obligation to bring in the

witness or to have the testimony taken, since Bar Counsel

was the proponent of the rule. D.C. Code section 1-1509(b)

and section 14-104. Respondent should not have the burden

of bringing in the out-of-country complaining witness when

the affidavit submitted by respondent clearly established

and refuted issues pertaining to the facts.

In Matter of Williams, 464 A.2d 115(D.C. App. 1983), a

matter before the Board on Professional Responsibility, the

Court of Appeais held that the finding of disciplinary

violations and recommendation of disbarment which was

not based on proof under oath, and failure to provide

evidentiary hearing denied due process. In that case,

Respondent claimed that among other rights, his due

process rights were violated because the hearing committee

did not hold a hearing on any of the charges against him.

The Court of Appeals agreed. They said “[i]t is well settled

that disciplinary proceedings are quasi-criminal in nature

A-50

and that an attorney who is the subject of such proceedings

is entitled to procedural due process safeguards.” Id. at 1 18-

119. See also, In re Ruffalo, 390 U.S. 544, 550 (1968); /n re

Thorup, 432 A.2d 1221, 1225(D.C. 1981); /n re Burka, 423

A.2d 181, 185(D.C. 1980) (en banc); /n re Colson, 412 A.2d

1160, 1164 (D.C. 1979) (en banc); and /n re Wild, 361 A.2d

182, 184 (D.C. 1976). The Court proceeded to state that

“[t]he procedural requirements which apply in attorney

disciplinary proceedings are analogous to those of other

‘contested cases’.” /d. Also citing, In re Thorup, supra, at

1225; the Court said “[t]he burden of providing the charges

rests with Bar Counsel and factual findings must be

supported by clear and convincing evidence.”

In the Matter of James, 542 A.2d 163, 169 (D.C. App.

1982), the question was raised of “timely issues”. The issue

of respondent not being able to cross-examine the com-

plaining witness was brought before the Board on

Professional Responsibility. Bar Counsel asserted it was the

respondent's responsibility to call the complaining witness,

although the rules clearly state that Bar Counsel is the

proponent of the rule and therefore it was their responsi-

bility to have the complaining witness testify. D.C. Code

section 1-1509(b).

ARGUMENT II

THE FINDINGS OF FACT AS PRESENTED BY THE

BOARD ON PROFESSIONAL RESPONSIBILITY

WERE NOT SUPPORTED

BY SUBSTANTIAL EVIDENCE

Bar Counsel must substantially prove its case, and the

evidence they have relied upon had been contradicted by

respondent. In order for the Court of Appeals to have a//the

facts necessary to achieve an honest and fai: result, it has to

rely on the Board on Professional Respensibility to

establish the facts. In the case of Jn re Hutchinson, 474 A.2d

842, 843 (D.C. App. 1984), a disciplinary action, the Court

stated that “[t]his Court is not equipped to engage in fact

A-51

finding. The function in disciplinary proceedings rests with

the Board on Professional Responsibility whose findings of

fact we must accept if they are supported by substantial evi-

dence.” (underscoring supplied) Citing, Jn re Dwyer, 399

A.2d 1 (D.C. 1979). In Dwyer, supra, the complaining

witness did not testify; however, the wife of the complaining

witness did testify, along with three other witnesses, to

support the complaint of Bar Counsel. /d. at 5. The Board's

findings appeared to turn on a question of credibility. The

Hearing Committee stated that the “observation of the

witnesses on the stand entered into its considerations... the

demeanor of the witnesses. .. .” /d. at 6. However, in that

case, respondent felt that the contradicted testimony of the

complaining witness’s wife “fell tar short of the kind of

convincing proof essential to an order of suspension or dis-

barment.” /d. Bar Counsel took the position that because

“the hearing committee heard the testimony and observed

the demeanor of the witnesses its resolutions of credibility

should be accepted.” /d. The Court observed that the

crucial findings turned upon “questions of credibility and...

the demeanor of the witnesses. .. .” /d. at 7. See also, Matter

of Thornton, 421 A.2d 1,2(D.C. App. 1980). Inthe Matter

of Thornton, supra, a case before the Court of Appeals

involving conflict of interest, the Court said “the crux of the

factual matter revolves around respondent's credibility... .”

/d. at 2., and that the Hearing Committee “was in the best

position to determine credibility because they had a chance

to observe and question the witnesses.”

In the case at bar, respondent has not had the opportunity

to expose the complaining witness, nor any witness's

demeanor to the Hearing Committee or the Board on Pro-

fessional Responsibility. As stated above the crucial finding

turns on credibility and demeanor and since neither the

Hearing Committee nor the Board on Professional Re-

sponsibility has had an opportunity to observe the com-

A-S2

plaining witness or any witness to support Bar Counsel's

Complaint, the contradicted evidence cannot be considered

to be substantial evidence to support the position of the

Petitioner below.

S

James W. Cobb (2253)

Attorney for Petitioner

1004 6th Street, N.W.

Washington, D.C. 20001

387-1100

A-53

APPENDIX L

DISTRICT OF COLUMBIA

COURT OF APPEALS

No. 85-1643

In the Matter of

DAVID M. FRANKLIN

A Member of the Bar of the

District of Columbia

Court of Appeals

BEFORE: *Pryor, Chief Judge; *Nebeker, Mack,

Newman, Ferren, Belson, Terry, Rogers and

Steadman, Associate Judges, and * Pair, Senior

Judge.

ORDER

On consideration of respondent’s petition for rehearing

or for rehearing en banc, the opposition of Bar Counsel

thereto, and respondent’s supplemental memorandum in

support of said petition, it is

ORDERED by the *merits division that respondent's

petition for rehearing is denied; and it appearing that no

judge of this court has called for a vote thereon, it is

FURTHER ORDERED that respondent’s petition for

rehearing en banc is denied.

PER CURIAM.

DISTRICT OF COLUMBIA

COURT OF APPEALS

FILED SEP 3, 1986

iS

Clerk