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

;

87 a cael

; , 1 ¢

; ’ j

j

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

ae ae ee Ee ee ee eS

IN THE MATTER OF HUGH M. WADE

Petitioner,

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

Bernard Jay Williams

Clark U. Fleckinger II

Counsel for Petitioner

Four Corners Office Park

10010 Colesville Rd., Suite B

Silver Spring, Maryland 20901

° a2 7

~ 7 -

7 ha if ;

7 ~~ ‘ ate

~~ - ae |

iv)

Sa

’

=

QUESTIONS PRESENTED

This case presents the following questions:

1. WHETHER THE LOWER COURT HAD JURISDICTION IN

DISBARMENT PROCEEDING OVER AN INDIVIDUAL WHO DID

NOT COME WITHIN SCOPE OF THE JURISDICTIONAL RULE.

2. WHETHER THE LOWER COURT DENIED PETITIONER DUE

PROCESS WHEN PETITIONER HAD NO NOTICE OF THE

REACH OF DISCIPLINARY JURISDICTION AND WHEN COURT

ASSUMED JURISDICTION BY A JUDICIAL EXPANSION OF

THE RULE CONFERRING JURISDICTION.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..ccccccccccccccccscccesccced

TABLE OF CASES ..cccccccccccccccccccccccccccccceidl

STATUTORY AND CONSTITUTIONAL PROVISIONS.......iii

INTRODUCTION. .ccscccccccccccccccccccccccsccccccel

CITATION TO OPINION BELOW... ccccccccccccccccced

JURISDICTION. ccc ccc ccccccccccccccccccccccccccccea’

STATEMENT OF THE CASE... ccccccccccccccccccccceeed

REASONS FOR GRANTING REVIEW... ccccccccccceceecell

I. That the lower court had no jurisdiction to

discipline an individual who does not come

within the court's own rules of jurisdiction

is in direct conflict with decision of this

court.

II. The lower court denied Petitioner due

process when it assumed disciplinary

jurisdiction over Petitioner by judicial

expansion of the rule conferring

FUELOGISE LOR. ccccccceccéccesesccsceccesdde AG

CONCLUSION... cccccccccccccscccccccccceseseseesed3

APPENDICES

Appendix A-Order Denying Review..........1A

Appendix B-Opinion of ee eee ee

ii

TABLE OF CASES

American Fire & Casualty Co. v. Finn, 341 U.S. 6,

LZ, 95 le Ed. 702, 710 (1951)

Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697

(1964).

Champlain Refining Co. v. Corporation Commission

of State of Oklahoma, 286 U.S. 210, 52 S.Ct. 559

(1931).

Connally v. General Const. €Co., 269 U.S. 385, 46

S.Cé. 126 “(1925)

ExParte Garland, 4 Wall 333, 18 L.Ed. 366.

Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct.

518 (1966)

In the Matter of Ruffalo, 390 U.S. 544, 88 S.Ct.

1222 (1969)

J.H. Marshall & Associates, Inc. v. Burleson, 313

A.2d 587 (D.C.App. 1973).

Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct.

618 (1939).

National Association for the Advancement of

Colored People v. Button, 371 U.S. 415 (1963).

Regatos v. Colorado Supreme Court, 746 F.2d 1429

(10th Cir. 1984)

Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1165

(1957)

iii

Spevack v. Klein, 385 U.S. 511, 17 L.Ed.2d 574,

87 S.Ct. 625.

United States v. McDaniel, 232 U.S. 97 (Pet.) l,

iS.

Yellin v. United States, 374 U.S. 109, 83 S.Ct.

1828 (1963).

iv

TABLE OF CASES & AUTHORITIES

American Fire & Casualty Co. v. Finn, 341 U.S. 6,

17, 95 ie Ed. 702, 710 CERO aD 6 cece 0eeeeesesnesne

Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697

6 if RPP POTTTTTTIY TT TCT re ee UES 28

Champlain Refining Co. v. Corporation Commission

of State of Oklahoma, 286 U.S. 210, 52 S.Ct. 559

CALE 6 0684660064060 0064046666 Oh ERR OOO 6560406820

Connally v. General Const. Co., 269 U.S. 385, 46

me

8 «CEs 126 Bl) rrr TTTTrrCrT TT Terry eT

ExParte Garland, 4 Wall 333, 18 L.Ed. 366......24

Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct.

518 CRPOE ccs 060656666686 6660 060 Oe 06s eEKOReanaT

A.2d 587 (D.C.App. 1973) .ccccccceccccceeel3,17,20

Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct.

618 TRUS) 6604460060060 06060666606 0éde RECORD

National Association for the Advancement of

Colored People v. Button, 371 U.S. 415 (1963)..23

Regatos v. Colorado Supreme Court, 746 F.2d 1429

(10th Gufs SUES 6:40 0d686000060 0060006806608 408000

Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1165 .

CATT heb sdémewce bode ttsoneebhbnduneseeéensesesaene

Spevack v. Klein, 385 U.S. 511, 17 L.Ed.2d 574,

87 BeGe ie 6.6 660660660 66660066666668666666866004

United States v. McDaniel, 32 U.S. 97 (Pet.) l,

Sree rT err TreTTTTTTT rT Te Tie eT rr?

Yellin v. United States, 374 U.S. 109, 83 S.Ct.

1828 eS) RPP TTTTPTTTrIrTIrisiiriiriry ee.

Fifth Amendment, United States Constitution:

Ce acs Ae Ob 666 006060060666060060 06805685040 24, 26

Fourteenth Amendment, United States Constitution:

nhac eee beO0 066 0006660666060 06660000n08 24, 26

D.C. Code, Section 11-2501 states in part:.....15

D.C. Bar Rule XI, Section 1 states in part:

bbabdsosdsecoeccocecooede 8, ll, 12, 15, 18, 22, 30

D.C.C.A. Rule 49 (b)(3) states: Practice of Law

in the District of Columbia...........12, 15, 17

iv \\|

STATUTORY AND CONSTITUTIONAL PROVISION INVOLVED

Fifth Amendment, United States Constitution:

No person shall be held to answer for a

Capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or

in the Militia, when in acutal service in time of

War or public danger, nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

Fourteenth Amendment, United States Constitution:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny any person within its

jurisdiction the equal protection of the laws.

D.C. Code, Section 11-2501 states in part:

(a) The District of Columbia Court of

Appeals shall make such rules as it deems proper

respecting the examination, qualification, and

admission of persons to membership in its bar,

and their censure, suspension, and expulsion.

D.C. Bar Rule XI, Section 1 states in part:

Section 1. Jurisdiction. Any attorney who

engages in the practice of law within the

District of Columbia as defined in Rule 46 II-(b)

of the General Rules of the Court [exclusive of

those persons described in Rule 46 II (b) (4) who

are not members of the Bar of the District of

Columbia Court of Appeals] is subject to the

disiplinary [disciplinary] jurisdiction of this

Court and its Board on Professional

Responsibility.

D.C.C.A. Rule 49 (b)(3) states: Practice of Law

in the District of Columbia

(1) No person shall regularly engage in the

practice of law in the District of Columbia or in

any manner hold himself/herself out as

authorized or qualified to practice law in the

District of Columbia unless he/she is an enrolled

active member of the Bar.

(2) No person, firm, association, bank or

corporation shall, in the District, advise or

counsel any person on matters effecting legal

rights, or practice....or in any manner avertise

that he/she either alone or together with any

other person or persons maintains an office for

the practice of law in the District of Columbia,

without being an enrolled active member of the

Bar.

vi'\

D.C. Bar Rule II Membership, Section 2 Periodic

regristration of Attorneys (1) states:

(1) Every attorney who engages in the

practice of law within the District of Columbia

as defined in Rule 46 II (b) of the General Rules

of the Court (exclusive of those persons

described in Rule 46 II (b)(4)) shall on or

before July 1 of every year file with the

Secretary of the Bar a registration statement

setting forth his or her (hereinafter referred to

for convenience solely in the masculine gender)

date of admission to the Bar of this Court, his

current residence and office addresses, and such

other information as the Court may from time to

time direct. In addition to such registration

statement, ~ every attorney shall file a

supplemental statement with the Secretary of any

change in the information previously submitted

within 30 days of such change. An attorney who

becomes newly subject to these Rules shall file

such a registration statement within 3 months

thereafter, or by the following July 1, whichever

is later.

D.C. Bar Rule XIII Amendment states in part:

Section 1. Amendments of Rules. Proposals

for amendment of these Rules may be presented to

the Court by (a) petition of the Board of

Governors; or (b) petition of the assembly in

respect of changes approved by referendum as

provided in Rule VII. Hearing upon such a

petition will be pursuant to notice in such

manner as the Court may direct.

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

IN THE MATTER OF HUGH M. WADE

Petitioner,

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

Petitioner Hugh M. Wade prays that a writ of

certiorari issue to review the judgment of the

District of Columbia Cort of Appeals entered in

the above entitled case on May 29, 1987.

CITATION TO OPINION BELOW

The opinion of the District of Columbia

Court of Appeals which is the subject of this

petition is reported in 526 A.2d 936 (D.C. App.

1987) and is reprinted hereto as Appendix A. The

District of Columbia Court of Appeals August 18,

1987 order denying Petitioner's Petition For

Rehearing En bene in that court is reprinted

hereto as Appendix B.

JURIDICTION

A decree of the Distrct of Columbia Court of

Appeals was entered on May 29, 1987 ordering the

Petitioner disbarred from the practice of law in

the Distrect of Columbia. A Petition For

Rehearing En Banc was subsequently filed with

that court and, on August 18, 1987, the District

of Columbia Court of Appeals denied such petition

and ordered Petitioner disbarred effective 30

days from the date of that order. This Petition

is filed within 90 days of that order. The

jurisdiction of this Court is invoked pursuant to

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

A separate and distinct ground pursuant to

which this Court could and should take cognizance

of the subject matter herin is that’ the

Petitioner, Hugh M. Wade, is a member of the bar

of this Honorable Court. Rule 8 of the Rules of

the Supreme Court of the United States provides

that any member of its bar who has been disbarred

from the practice of law in any state or district

will be suspended forthwith from practice before

the Supreme Court of the United States with a

Subsequent opportunity to show good cause as to

why he should not be similarly disbarred from

this Honorable Court. Upon Petitioner's response

to the rule to show cause issued by this Court

pursuant to Rule 8 the Court will enter an

appropriate order with respect to disbarment.

Although this Court has not taken notice of

Petitioner's disbarment from the District of

Columbia Court of Appeals, it may do so upon this

Showing and may consider the brief herein as the

showing of good cause by Petitioner as to why he

should not be disbarred from the practice before

this Court.

STATEMENT OF THE CASE

Following a November 30, 1983 hearing before

a Hearing Committee of the District of Columbia

Board on Professional Responsibility, and a

subsequent recommendation to the District of

Columbia Court of Appeals that Petitioner be

disbarred for violations of certain Disciplinary

Rules as codified in Appendix A of the D.C. Bar

Rules, Petitioner was disbarred by that court on

May 29, 1987. Prior to that order of disbarment

by the District of Columbia Court of Appeals,

Petitioner challenged the authority of the Board

on Professional Responsibility and the District

of Columbia Court of Appeals right to assume

jurisdiction of this matter on the ground that

D.C. Bar Rule XI, Section 1, which authorized

jurisdiction by the Board on _ Professional

Responsibility and the District of Columbia Court

of Appeals over certain members of the D.C. Bar,

who engage in the practice of law within the

District of Columbia, did not authorize

assumption of jurisdiction over Petitioner under

the facts of this matter. While maintaining that

the findings were unsupported by substantial

evidence, Petitioner does not raise those issues

of substantial evidence of consideration here.

Rather, the only issue presented for this Court's

consideration is whether the lower court

erred in concluding that it and the Board on

Professional Responsibility had jurisdiction to

discipline Petitioner for alleged disciplinary

violations.

The disciplinary proceedings which are the

subject of this review arose out of a petition by

the District of Columbia Bar Counsel alleging

various violations of the Code cf Professional

Responsibility based upon Petitioner's alleged

misconduct in the Commonwealth of Massachusetts.

The Board on Professinal Responsibility adopted

the findings of the Committee and recommended to

the District of Columbia Court of Appeals the

disbarment of Petitioner. All of the alleged

violations took place in Massachusetts. Indeed,

the lower court noted that "(t]he record reveals

that all of the conduct complained of occurred in

the Commonwealth of Massachusetts, that neither

the complainant (a woman with whom Petitioner has

formally had an intimate and extended love affair

in the mid to late 1970's), nor the Petitioner

were residents of the District of Columbia, and

that Petitioner neither maintained a law office

nor actively represented clients in the District

of Columbia. It is also clear that none of the

property alleged to have been misappropriate by

Petitioner was located in the District of

Columbia." In the matter of Wade, supra, at 938.

The District of Columbia Court of Appleals

recognized that the basis for the recommendation

of disbarment as a sanction were the allegations

and findings of misappropriation. In the matter

of Wade, 526 A.2d 936, 936 n.4 (D.C. App. 1987).

Massachusetts authorities did not find that

Petitioner had engaged in any illegal conduct.

The authority by which jurisdiction to

discipline persons for alleged professional

misconduct is conferred upon the Board on

Professional Responsibility and the District of

Columbia Court of Appeals is by D.C. Bar Rule

XI, Section 1, which confers jurisdiction over

any attorney who engages in the practice of law

within the District of Columbia as_ therein

defined. Notwithstanding the limitation of

subject matter jurisdiction and an_ implied

acknowledgment that Petitioner was not engaged in

the practice of law within the District of

Columbia as noted supra, the District of Columbia

Court of Appeals, nevertheless, held that the

facts of this case require the conclusion that

Petitioner intended to be considered, and had

held himself out as, an attorney engaged in the

practice of law in the District of Columbia

within the meaning of Rule XI, Section 1 and that

he, therefore, came within the scope of the

Board's and the District of Columbia Court of

Appeals' disciplinary jurisdiction. The facts

upon which the lower court's holding rest are

based upon Petitioner having maintained an

"active" status with the D.C. Bar pursuant to the

bar membership registration requirements of D.C.

Bar Rule II. But, most importantly, at the time

of the institution of these disciplinary

proceedings, Petitioner was not engaged in the

practice of law with the District of Columbia.

In fact, the Petitioner has never been engaged in

the practice of law prior to or at the time of

these proceedings whether in the District of

Columbia or otherwide. (Although within the last

several months Petitioner has respresented two

Equal Employment Opportunity grievants)

Petitioner D.C. Bar registration statement

reflects that the Petitioner sub-classified

himself in the “other” category with respect to

those attorneys maintaining an “active" status

with the D.C. Bar. This is for the reason that

Respondent taught, as opposed to practiced, law.

By holding as it did, the District of

Columbia Court of Appeals brought Petitioner

within the reach of disciplinary proceedings

under circumstances where he had no notice of

such a jurisdictional reach and no reason to

believe that such proceedings would encompass

him. It did so by equating an attorney engaged

in the practice of law within the District of

Columbia as being synonomous with members of the

D.C. Bar. The two are not the same. The lower

court's decision has absolutely denied the

Petitioner due process of law as guaranteed to

him by the Fifth and Fourteenth Amendments to the

United States Constitution. Without notice, he

has been brought within the scope of a

jurisdictional rule by judicial expansion of the

rule conferring jurisdiction.

10

REASONS FOR GRANTING REVIEW

I. THAT THE LOWER COURT HAD NO JURISDICTION TO

DISCIPLINE AN INDIVIDUAL WHO DOES NOT COME WITHIN

THE SCOPE OF THE COURT'S OWN RULES’ OF

JURISDICTION CONFLICTS WITH PRIOR DECISIONS OF

THIS COURT.

The District of Columbia Board on

Professional Responsibility and the District of

Columbia Court of Appeals had no jurisdiction to

institute or hear disciplinary proceedings

against Petitioner pursuant to their own rules

and under the facts of the disciplinary

proceeding of In the Matter of Wade, 526 A.2d,

936 (D.C.App. 1987)

D.C. Bar Rule XI, Section 1 ("Jurisdiction")

confers disciplinary jurisdiction upon the Board

of Professional Responsibility of the District of

ll

Columbia and the District of Columbia Court of

Appeals over attorneys who are engaged in the

practice of law within the District of Columbia.

That rule reads:

"Any attorney who engages in the practice of

law within the District of as

defined in Rule 46 II-(b) of the General

Rules of the Court [exclusive of those

persons described in Rule 46 II (b) (4) who

are not members of the bar of the District

of Columbia Court of Appeals] is subject to

the disciplinary [disciplinary] jurisdiction

of this Court and its Board on Professional

Responsibility.*®

D.C. Bar Rule XI, Section 1 (emphasis added)

(Note that District of Columbia Court of Appeals

Rule 46(b) is now Rule 49(b)(3). The court rule

to which D.C. Bar Rule XI, Section 1 refers, now

codified as District of Columbia Court of Appeals

Rule 49(b) (3), reads as follows:

THE PRACTICE OF LAW WITHIN THE DISTRICT OF

COLUMBIA:

12

|

(3) The practice of law as used in this rule

shall include, but is not limited to,

appearing for any other person as attorney

in any court, Or preparing for any other

person any deeds, mortgages, contracts,

assignments, discharges, leases, trust

instruments or any other instruments

affecting real or personal property or any

interest therein, or any wills, codicils,

Or any other instruments affecting the

disposition of property of decedents'

estates, or any-pileadings of any kind in

any action brought before any court, or

preparing or expressing formal opinions or

consulting with respect to any of the

foregoing or on any ohter matters of law.

Moreover, in the only case wherein the lower

court had considered what constituted the

practice of law, J.H. Marshall & Associates, Inc.

v. Burleson, 313 A.2d 587 (D.C. App. 1973), that

court said:

According to the generally understood

definition of the practice of law in this

country, it embraces the preparation of

pleadings, and other papers incident to

actions and special proceedings, and the

management of such actions and proceedings

on behalf of clients before judges and

courts, and, in addition, conveyancing, the

preparation of legal instruments of all

kinds, and, in general, all advice to

13

clients, and all action taken for them in

matters connected with the law...

[T]he practice of directing an managing the

enforcement of legal claims and the

establishment of the legal rights of others,

where it is necessary to form and to act

upon opinions as to hwat those rights are

and as to the legal methods which must be

adopted to enforce the, the practicing of

giving or furnishing legal advice as to such

rights and methods and the practice, as an

occuption, of drafting documents by which

rights are created modified, surrendered or

securred are all aspects of the practice of

law...

Id. at 594 (citations omitted). Thus, by

reference to its own rule defining those persons

who come within the Board on Professional

Responsibility's and its disciplinary

jurisdiction, as well as by case law defining the

practice of law, the lower court has already

determined that the words of Rule XI, Section 1

should retain their ordinary meaning. The rule,

thus, encompasses only an attorney, thereby

defined, who is actually engaged in such

activity.

14

Both D.C. Bar Rule XI, Section 1 and

District of Columbia Court of Appeals “Rule

49(b)3, as were all the court and bar rules, were

promulgated by the District of Columbia Court of

Appeals itself by virtue of its rule making

authority pursuant to Congressional enactment as

codified in 11 D.C. Code, Section 2501 and was

narrowly drawn so as to bring only certain of its

members within its scope. The District of

Columbia Court of Appeals itself recognized that

it could have created broader jurisdictional

authority than it did without going beyond

Congressionally imposed limitations by including

all members of the D.C. Bar within its

Gisciplinary jurisdiction but that it did not.

Wade, supra at 938. Thus, a person who is not

engaged in the practice of law within the

District of Columbia and who has read D.C. Bar

Rule XI, District of Columbia Court of Appeals

15

Rule 49 (b) (3), and the only District -of

Columbia Court of Appeals decision defining what

constitutes the practice of law in the District

of Columbia must conclude that he or she is not

subject to the disciplinary jurisdiction of the

District of Columbia Court of Appeals. One tried

before an agency is “legally entitled to insist

upon observance of its rules." United States v.

MacDaniel, 32 U.S. 97 (Pet.) l, 15.

In the case at bar, neither Petitioner, the

complainant, the property which as the subject of

the alleged violations or the alleged conduct of

the Respondent has any residential, employment,

contractual or other connection to the District

of Columbia. In fact, all parties were residents

of Massachusetts, the alleged conduct which was

the basis for these proceedings took place in

Massachusetts, and the property which was the

subject of Petitioner's alleged conduct was

16

located in Massachusetts. Most importantly,

Petitioner was not actually engaged in the

practice of law with the District of Columbia,

a fact which the lower court acknowledge at least

to the extent of noting that Petitioner did not

have any clients in the District of Columbia and

that he did not maintain an office in the

District of Columbia. Furthermore, no allegation

has ever been made or evidence adduced, with

respect to Petitioner having ever done any of the

kinds of activities within the District of

Columbia as enumerated in District of Columbia

Court of Appeals Rule 49(b)(3) or in J.B.

Marshall & Associates, Inc., supra. Nor could

there have been. Thus, by its own terms,

Petitioner was not subject to the jurisdiction of

the lower court's disciplinary jurisdiction.

17

II. THE LOWER COURT DENIED PETITIONER DUE

PROCESS WHEN IT ASSUMED DISCIPLINARY JURISDICTION

OVER PETITIONER BY JUDICIAL EXPANSION OF THE RULE

CONFERRING JURISDICTION.

Notwithstanding the apparent clear language

of D.C. Bar, Rule XI, Section l, and

notwithstanding the lower court's acknowledgment

that Respondent had not actually been engaged in

the practice of law within the District of

Columbia, the lower court ruled that the Board

and itself did have jurisdiction to institute and

conduct disciplinary proceedings against

Petitioner based solely upon the Respondent

having maintained an “active” status with the

D.C. Bar pursuant to the bar registration

requirements of D.C. Bar Rule II. By so doing

the. lower court held, for the first time, that

maintaining an “active” status bar membership

18

with the Secretary of the bar under D.C. Bar Rule

II, Section 2(a), which simply entitles one so

qualified to practice law within the District of

Columbia, is tantamount to being engaged in the

practice of law within the meaning of D.C. Bar

Rule XI, Section 1. The lower court's opinion

recognized the distinction between the mere

eligibility to practice law and the actual

practice of law but concluded that the filing of

registration statements classifying himself in

the “active” category of bar members constituted

the practice of law. Wade, supra at 941.

However, Petitioner's D.C. Bar registration

statement reflects that Petitioner also

sub-classified himself in the “other” category

within the "active" classification as noted supra

page 9. This was the holding despite the lower

court having previously defined the practice law

in District of Columbia Court of Appeals Rule

19

49(b) (3) and in J.H. Marshall & Assoicates, Inc.,

Supra, both of which embrace only the traditional

lay sense of what is meant by the practice of law

such as the prosecuting and defending claims on

behalf of litigants, preparing legal documents,

advising clients and the like. In fact, the

Opinion of the lower court made no reference at

all to the District of Columbia Court of Appeals

Rule 49(b)(3) to which D.C. Bar Rule XI, Section

1 refers. Further, the lower court cited no

legislative history to either D.C. Bar Rule XI or

II, or judicial precedent, to support their

conclusion that that Rule XI, Section 1 should be

interpreted with reference to D.C. Bar Rule II.

The jurisdiction of federal courts cannot be

expanded by judicial interpretation. American >

Fire & Casualty Company v. Finn, 341 U.S. 6,17,

95. L Ed 702, 710 (1951) Indeed, judicial

precedent to the contrary with respect to this

use by the lower court of D.C. Bar Rule II

20

exists. As noted by Circuit Judge Prettyman when

interpreting Rule 75 of the District of Columbia

Municipal Court Rules, the forerunner to D.C. Bar

Rule II, Rule 75 of the Municipal Court Rules

"merely establishe[d] a convenient roll, with a

card of identification, so that persons entitled

to practice before their Court can be instantly

identified." Austin v. The Municipal Court for

the District of Columbia, 235 F.2d 836 at 837

(D.C. Cir 1956) (emphasis added). That court

went further and stated that the rule “imposes no

substantive requirement for the practice of law.”

Id. Clearly, the lower court's reliance on

Petitioner having maintained an “active” status

with the D.C. Bar pursuant to the requirements of

D.C. Bar Rule II as the basis for concluding that

he was engaged in the practive of law within the

District of Columbia within the meaning of D.C.

Bar Rule XI's jurisdictional requirements was

misplaced.

21

In light of the clear intent that the scope

of D.C. Bar Rule XI, Section 1 extended only to

attorneys actually engaged in the practice of law

within the District of Columbia rather than all

members of the D.C. Bar, no notice existed to

potentially effected persons that they may come

within the reach of the jurisdictional rule even

though they did not engage in the practice of law

within te District of Columbia. Indeed, that

Petitioner did not have notice of the rule's

reach as to him was recognized by Rogers,

Associate Judge, when she wrote in her concurring

opinion,

"Although this opinion would constitute

future notice, I write separately to

indicate that I think Rule XI should be

amended to incorporate the holding of

this opinion...By so amending our Rule,

it would be in conformity with the

disciplinary procedures in Maryland and

Virginia, Rule BVI(a),MD.Code Ann. (1986

Supp.) ("‘Attorney' means any person

admitted by the Court of Appeals to practice —

22

law."); Va. Sup. Ct. Rules, Part 6, Rule 6:

IV, Paragraph 13, 216 Va. 1143 (1976)

("‘Attorney' means a member of the Virginia

State Bar.")

Wade, supra, at 940 (emphasis added). That,

perceived need to both amend the _ rule _ to

incorportate the holding of the opinion and to

give future notice to potentially effected

persons via its holding is a recognition that

first, the rule, as it stands, does not have the

reach that the majority held it to have had and,

that secondly, the rule, as it stands, did not

give notice to the Petitioner and other similarly

Situated persons of the reach of the rule.

"A state may not, under the guise of

prohibiting professional misconduct, ignore

Constitutional rights." National Association for

the Advancement of Colored People v. Button, 371

U.S. 415 at 439 (1963). The issue which

Petitioner requests this Court to review is

23

whether the due process of law, as required by

the Fifth and Fourteenth Amendments to the United

States Constitution, was afforded the Petitioner

before a deprivation of his rights took place in

order to discipline him for alleged professional

misconduct when he had no notice of the reach of

the disciplinary jurisdiction and when his

challenge to the jurisdiction of the disciplinary

authorities was overruled by a judicial expansion

of the rule conferring jurisdiction.

This Court has long held that “(dJisbarment,

designed to protect the public, is a punishment

Or penalty imposed upon the lawyer." In the

Matter of Ruffalo, 390 U.S. 544 at 551, 88 S.Ct.

1222 (1968) (citing Ex Parte Garland, 4 Wall 333,

380, 18 L.Ed. 366, 369; Spevack v. Klein, 385

U.S. 511, 515, 17 L.Ed.2d 574, 577, 87 S.Ct.

625). In reversing the lower court's order of

24

disbarment because of an absence of fair notice

as the reach of the grievance procedure, this

Court went further to note that disbarment

proceedings are adversary proceedings of a

quasi-criminal nature and, accordingly, a

respondent is entitled to procedural due process.

Ruffalo, supra, U.S. at 551-52. Because these

proceedings are quasi-criminal in nature, analogy

to criminal law is appropriate. See Regatos v.

Colorado Supreme Court, 746 F.2d. 1429 (10th Cir.

1984). With that rule in mind, as well as the

rule of statutory construction that penal

statutes are to be strictly construed against the

state and in favor of the accused, it follows

that such rules of construction are applicable to

disciplinary proceedings wherein statutes and

rules are to be strictly construed against the

prosecuting authority and in favor of the

Respondent to a disciplinary proceeding. In

regard to such statues, this Court has stated:

25

"({A]) statute which either forbids or

requires the doing of an act in terms so

vague that men of common intelligence -

must necessarily guess at it's meaning and

differ as to its application, violates the

first essential of due process of law."

Connally v. General Const. Co., 269 U.S. 385 at

391, 46 S. Ct. 126 at 127 (1925)

"No one may be required a peril of life,

liberty or property to speculate as to the

meaning of penal statues. All are entitled

to be informed as to what the state commands

or forbids."

Lanzetta v. New Jersey, 306 U.S. 451 at 453, 59

S. Ct. 618 at 619 (1939).

"It is not the penalty itself that is

invalid but the extraction of obedience

to a rule or standard that is so vague and

indefinite as to be really no rule or

standard at all.*

Champlain Refining Co. vy. Corporation Comm. of

State of Oklanhoma, 286 U.S. 210 at 243, 52 S.Ct.

559 at 568 (1931).

"It is established that a law fails to meet

the requirements of the due process clause

if it is so vague and standardless that it

leaves the public uncertain as to the

conduct it prohibits, or leaves judges and

jurors free to decide, without any legally

26

fixed standards, what is prohibited and what

is not in each particular case."

Giaccio v. Pennsylvania, 382 U.S. 399 at 402-03,

86 S.Ct. 518 at 520-21(1966).

Those statements of this Court as to the

necessity of the notice requirements of penal

statutes, coupled with this Court's decision in

Ruffalo reversing the lower court's order of

disbarment on due process grounds because of an

absence of notice as to the reach of the

disbarment proceeding, would appear to make clear

that notice as to the jurisdictional reach of

desciplinary proceedings is also compelled by the

due process clause of the Fifth and Fourteenth

Amendments. This is particularly true when, as

here, the rule or statute in question fails to

give the requisite notice of prohibited or

mandated conduct or jurisdictional paramenters

because it is written more specifically than it

is later construed to mean thereby encompassing

26

within its scope conduct or persons which should

not come within such scope, rather than because

the rule or statute is vague or overbroad. The

due process violation which has taken place in

that circumstance is a judicial expansion of the

statute or rule. Just such a circumstance arose

in the case of Bouie v. Columbia, 378 U.S. 347,

84 S.Ct. 1697 (1964) which was cited in Ruffalo,

supra for the proposition that Ruffalo may well

have been "lulled into a false sense of security”

by specifically written rules which’ were

subsequently determined to emcompass conduct not

specifically prohibited. Id. at 551 n.4. #14=In

Bouie, this Court reversed the trespass

convictions on the ground that the defendants'

right to due process had been violated when the

state court retroactively expanded a trespass

statute to cover the case at hand. The basic

unfairness of this action by the state court was

27

based upon the fact that the state court applied

a criminal sanction to what had been non-criminal

conduct when it had occurred. More specifically

the law under which the defendants were convicted

as construed by the state court provided the

defendants with no notice that their conduct

would be subject to criminal sanctions prior to

their engaging in it. The due process problesms

wih such a judicial expansion of a statute or

rule as best captured in the extensive language

of Bouie, supra where this Court wrote:

"It is true that in the Connally and

Lanzetta cases, and in other typical

applications of the principle, the

uncertainty as to the statute's prohibition

resulted from the vague or overbroad

language in the statue itself, and the court

concluded that the statute was ' void for

vagueness.’ The instant case seems

distinguishable, since on its face the

language of [section] 16-386 of the South

Carolina Code was admirably narrow and

precise,...

The thrust of the distinction, however, is

to produce a potentially greater deprivation

28

of the right to fair notice in this sort of

case, where the claim is that a statute

precise on its face has been unforeseeably

and retroactively expanded by judicial

construction, than in the typical ‘void for

vagueness’ situation. When a statute on its

face is vague or overbroad, it at least

gives a potential defendant some notice, by

virtue of this very characteristic, that a

question may be held to cover his

contemplated conduct. When a statute on its

face is narrow and precise, however, it

lulls the potential defendant into a false

sense of security giving him no reason even

to suspect that conduct clearly outside the

scope of the statute as written will be

retroactively brought within it by an act of

judicial construction. If the Fourteenth

Amendment is violated when a person is

required ‘to speculate as to the meaning of

penal statutes’ as in Lanzetta, or to ‘guess

at [the statute's] meaning, and differ as to

its application,’ as in Connally, the

violation is that much greater when, because

the uncertainty as to the statute's meaning

is itself not revealed until the Court's

decision, a person is not even afforded an

opportunity to engage in such speculation

before committing the act in question.

There can be no doubt that deprivation of

the right of fair warning can result not

only from vague statutory language but also

from an unforeseeable and retroactive

judicial expansion of narrow and precise

statutory language. As the Court recognized

in Pierce v. United States, 314 U.S. 306 at

311, 62 S.Ct. 237 at 239, ‘judicial

enlargement of a criminal act by

interpretation is at war with a fundamental

29

indiana alien ee i

concept of the common law that crimes must

be defined with appropriate definiteness.'

Even where vague statutes are concerned, it

has been pointed out that the vice in such

an enactment cannot ' be cured in a given

case placing valid limits on the statute,'

for 'the objection of vagueness is twofold:

inadequate guidance to the individual whose

conduct is regulated, and inadequate

guidance to the triers of fact. The former

objection could not be cured retrospectively

by a ruling either of the triai court or the

appellate court, though it might be cured

-for the future by an authoritative judicial

gloss...'... If this view is valid in the

case of a judicial construction which adds a

‘clarifying gloss' to a vague statute, ...

making it narrower and more definite than

it's language indicates, it must be a

fortioriso where the construction

unexpectedly broadens a statute which on its

face had been narrow and precise. Indeed, an

unforesseable judicial enlargement of a

Criminal statute, applied retroactively,

operates precisely like an ex post facto

law, such as Art. I, Section 10, of the

2 Constitution forbids... If the state

legislature is barred by the ex post facto

Clause from passing such a law, it must

follow that a State Supreme Court is barred

by the due process clause from achieving

precisely the same result by judicial

construction..."

Id:, U.S. at 351-54, 84 S.Ct. at 1701-02.

Clearly, the District of Columbia Court of

Appeals construction of Rule XI, Section l,

30

was the kind of judicial expansion of a rule,

narrow and precise on its face, that was

condemned in Bouie because it failed to give the

Petitioner the requisite notice of the reach of

the disciplinary proceedings mandated by Ruffalo.

Lastly, with respect to this issue of the

Board's and the District of Columbia Court of

Appeal's concurring opinion appears to recognize,

that that court has essentially amended D.C. Bar

Rule XI by their opinion in the case at bar so as

to bring within the rule's scope all "active"

“members of the bar regardless of whether or not

they engage in the practice cf law within the

District of Columbia. Such a conclusion is

compelled in light of the concurring opinion's

call upon the court to formally amend the rule.

However, it is inappropriate for the District of

Columbia Court of Appeals to amend its own rule

by case law when that court has adopted D.C. Bar

31 :

Rule XIII as the procedure by which rules of that

court should be amended. Failure to follow its

own established procedure in the amendment of its

rules is, again, a failure to provide adequate

notice to all members of the bar of changes in

the rules that will effect them and which Rule

XIII is designed to address. Without such

notice, due process safeguards are denied thos

members who allegedly violate or come within the

jurisdiction of a rule that did not exist at the

time of the alleged violation. For these

reasons, this Court has mandated that agencies

follow the procedures that they, themselves, have

established. Service v. Dulles, 354 U.S. 363 at

388, 77 S.Ct. 1165 (1957). Even Congress has

been held to bound to comply with regulation for

its own conduct. Yellin v. United States, 374

U.S. 109 at 123-24, 83 S.Ct, 1828 at 1837 (1963).

No reason exists why the District of Columbia

32

a

Court of Appeals, a creature of Congress, should

not be required to do so as well.

CONCLUSION

WHEREFORE, for the foregoing reasons, it is

respectfully submitted that this Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

ay Williams

or Petitioner

Four Caryners Office Park

10010 Colesville Road, Suite B

Silver Spring, Maryland 20901

(301) 593-7768

33

District of Columbia

Court of Appeals

No. 84-1161

In the Matter of

HUGH M. WADE

A Member of the Bar of the

District of Columbia

Court of Appeals

BEFORE: Pryor, Chief Judge, and Nebeker, Mack,

Newman, Ferren, Belson, Terry, Rogers

and Steadman, Associate Judges.

ORDER

On consideration of respondent's

petitition for rehearing en banc, and it

appearing that no judge of this court has called

for a vote thereon, it is

ORDERED that the petitition for

rehearing en banc is denied. It is

FURTHER ORDERED that the disbarment of

respondent shall be effective 30 days from the

date of this order.

PER CURIAM

DISTRICT OF COLUMBIA

COURT OF APPEALS

FILED AUG 18, 1987

RICHARD B. HOFFMAN

Clerk

_/s/

DEPUTY CLERK

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 84-1161

IN THE MATTER OF HUGH M. WADE, 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 Professional Responsibility

(Argued September 16, 1986 Decided May 29, 1987)

Ciark U. Fleckinger II for respondent.

Elizabeth J. Branda, Assistant Bar Counsel, with whom

Thomas H. Henderson, Jr., Bar Counsel, was on the brief,

for the Board on Professional Responsibility.

Before PryoR, Chief Judge, and MACK and ROGERS,

Associate Judges.

Opinion for the court by Chief Judge Pryor.

Concurring opinion by Associate Judge ROGERS at p. 10.

Pryor, Chief Judge: In this disciplinary matter, Hear-

ing Committee Number Seven (Hearing Committee)

found that respondent Hugh M. Wade had violated DR

1-102(A) (3), (4),? and DR 9-103(B) (4)* by misappro-

1“A lawyer shall not... [e] ngage in illegal conduct involv-

ing moral turpitude... .”

2“A lawyer shall not... [e]ngage in conduct involving

dishonesty, fray, deceit, or misrepresentation.”

3“A lawyer shall... [p]romptly pay or deliver to the

client as requested by a client the funds, securities, or other

Appendix 2A 1

priating and converting to his own use money entrusted

to him by a client. The Hearing Committee recommended

a sanction of disbarment, and further recommended that

Mr. Wade be ordered to make restitution to his client in

the amount of $4,531.72. The Board on Professional

Responsibility (the Board) agreed with the findings and

recommendations of the Hearing Committee, and rec-

ommended that respondent be disbarred.’ Before this

court, respondent asserts that the Board lacks jurisdiction

in this matter and, in the alternative, that the Board’s

findings are unsupported by substantial evidence, and the

recommended sanction of disbarment is unwarranted.

We disagree with respondent’s contentions, and, accord-

ingly, we adopt the Board’s recommendation.

I

The evidence against respondent before the Hearing

Committee consisted of the testimony of respondent’s

properties in the possession of the lawyer which the client

is entitled to receive.”

_ * The Hearing Committee also found violations of DR 3-101

(B) (practicing law in a jurisdiction in violation of its regu-

lations) ; DR 2-102 (A) (use of a letterhead containing false

or misleading statement) ; DR 9-103 (A) (failure to properly

preserve identity of client’s funds) ; and DR 1-102 (A) 4),

(5) (“conduct involving dishonesty, fraud, deceit, or mis-

representation” and “conduct that is prejudicial to the ad-

ministration of justice” in respondent’s misrepresentations

to Bar Counsel that he had disbursed certain funds to his

client). The Hearing Committee’s recommendation of dis-

barment, however, was based on respondent’s violations of

DR 1-102 (A) (3), (4), and DR 9-103 (B) (4).

5 Finding that the Hearing Committee’s recommended order

that respondent make restitution in the amount of $4,531.72

“would not ... serve a useful purpose,” the Board did not

include this order in its recommended sanction.

A2

client, supported in part by documentary evidence.

Respondent’s client testified that she and respondent had

been romantically involved in 1975 and 1976 while both

were living in Boston, Massachusetts, but that their rela-

tionship ended in 1976. While she and respondent did not

share bank accounts or living quarters, they did share

some expenses.

In April 1979, respondent’s client’s mother died, and it

became respondent’s client’s responsibility to sell her

mother’s car as well as the house in which her mother

had been living. Since she was about to move to North

Carolina to attend graduate school, she consulted respond-

ent concerning the money she expected to receive. Re-

spondent agreed to handle the sale of the house and car,

and suggested that his client establish a trust with the

money she was to receive from the sale of the house. He

refused to accept a retainer for his services, but did

accept $332, allegedly for administrative expenses in set-

ting up the trust.

At respondent’s suggestion, his client transferred all

her savings from her account in one Boston bank to

respondent’s bank also in Boston and gave him power of

attorney to handle deposits and withdrawals at that bank.

According to their agreement, respondent was to send his

client money in North Carolina as she needed it.

When his client’s mother’s car was sold, respondent, in

his capacity as her attorney, received $600 in proceeds

which he deposited in his client’s savings account. The

sale took place in Massachusetts. Soon thereafter, how-

ever, respondent withdrew $500. Respondent neither sent

his client the money nor expended it on her behalf. In

September 1979, when she questioned respondent about

the $10 balance of her account, respondent’s client was

A3

told that he deposited the money in another account that

paid higher interest.

When the house in which respondent’s client’s mother

had been living was sold, the buyer made no down pay-

ment, but agreed instead to make monthly payments on a

second mortgage. The house was located in Massachu-

setts; the sale took place there as well. Because of this

arrangement, no trust was established, and respondent,

acting as her attorney, never sent his client the $500

deposit or several monthly payments on the mortgage he

received.

In January and August 1980, respondent closed out his

client’s high interest accounts of more than $1,000 each

by executing withdrawal slips in his own handwriting.

When his client discovered the accounts had been closed,

she asked respondent about the matter. He stated that

he had changed the accounts to new accounts that yielded

higher interest. Still, except for $300 respondent sent his

client in 1980, his client received no money from her

attorney.

In January 1981, respondent’s client asked respondent

to send her all of her money, and to return an insurance

policy she had left with him for the purpose of changing

the beneficiary. Respondent did not comply with the

request and did not respond to subsequent letters seeking

the return of the funds.

In January 1982, respondent’s client obtained a judg-

ment against him in Massachusetts for more than $8,000,

and agreed to accept respondent’s offer to pay $4,000 in

settlement of the judgment. Respondent never paid his

client the $4,000.

In 1983, a disciplinary proceeding was instituted

against respondent based on his alleged misconduct.

AG

IT

Before reviewing the Board’s Report and Recommenda-

tion, we address respondent’s challenge to the disciplinary

authority of the Board. Respondent contends that the

Board lacks jurisdiction to proceed against him because

the interplay among D.C. Code §§ 11-2501, -2502 (1981)

and D.C. Bar R. XI must be interpreted by this court as

meaning that the Board may only proceed against attor-

neys who are practicing law in the District, whether the

alleged violation is related to that practice or not, and

that “practicing law in the District” is not synonymous

with “member of the I.C. bar.”

The record reveals that all of the conduct complained

of occurred in the Commonwealth of Massachusetts, that

neither the complainant nor the respondent were residents

of the District of Columbia, and that respondent neither

maintained a law office nor actively represented clients in

the District of Columbia. It is also clear that none of the

property alleged to have been misappropriated by respond-

ent was located in the District of Columbia.‘

D.C. Code § 11-2501 (a) provides:

The District of Columbia Court of Appeals

shall make such rules as it deems proper re-

* Before filing her complaint in the District of Columbia,

respondent’s client attempted to resolve her conflict in Massa-

chusetts. As a result of these attempts, in 1981, the respond-

ent entered into an agreement of Assurance and Discontinu-

ance with the Attorney General of Massachusetts in lieu of

the Attorney General commencing a civil action against him

for practicing law without a license in the Commonwealth.

In addition, in 1982, the Office of Bar Counsel in Massachu-

setts refused to pursue these allegations. As noted supra,

respondent’s client ultimately obtained a judgment against

respondent and agreed to a settlement of $4,000.

AS

specting the examination, qualification and ad-

mission of persons to membership in its bar,

and their censure, suspension, and expulsion.

D.C. Code § 11-2502 provides in part:

The District of Columbia Court of Appeals

may censure, suspend from practice, or expel a

member of its bar for crime, misdemeanor... .

{Emphasis added. } by

While these Code provisions create in the court the

power to establish rules for managing its bar, it is D.C.

Bar R. XI, $1 that actually creates and defines the

scope and duties associated with the disciplinary author-

ity of this court and the Board on Professional Respon-

sibility. Rule XI, § 1 reads in relevant part:

Any attorny who engages in the practice of law

within the District of Columbia as defined in

Rule [49(b)(1)] of the General Rules of the

Court . . . is subject to the disciplinary jurisdic-

tion of this Court and its Board on Professional

Responsibility. [Emphasis added. ]

Accordingly, while it may be true that this court could

have created broader authority for the Board without

thereby overstepping the congressionally established

bounds, this court, by adopting Rule XI, limited the au-

thority of the Board to disciplinary actions against attor-

neys who are “engaged in the practice of law within the

District of Columbia.”

The particular facts of this case require that we reject

respondent’s contentions. Respondent was admitted to the

District of Columbia Bar on November 25, 1975, and he

maintained an “active” status membership from that

date to November 30, 1983. From November 30, 1983 to

AS

March 8, 1984 and again from November 30, 1984 to

December 19, 1984, respondent’s membership was sus-

pended for his failure to pay membership dues. In addi-

tion, each year for more than a decade, he timely filed

registration statements as required by D.C. Bar R. II,

§2(1). Bar R. II, §2(1) requires that every attorney

who engages in the practice of law within the District of

Columbia file an annual registration statement. Registra-

tion statements are not required of attorneys who are

either not practicing law in the District of Columbia or

who maintain an inactive membership status. By filing

annual registration statements, respondent was complying

with a procedure required only of those engaged in the

practice of law and, thereby, maintaining his “active

status” or his eligibility to engage in the practice of law.

Further, it is clear that an attorney who is not engaged

in the practice of law within the District of Columbia is

required to “advise, in writing, the Secretary of the Bar

that he desires to assume inactive status and to discon-

tinue the practice of !aw.” Rule II, §2(4). The record

reveals that respondent never so advised the Secretary.

We note that these reporting requirements are, at least

in part, dependent upon a system of self-classification.

It is the individual attorney who decides what his mem-

bership status is to be, and it is the individual attorney

who takes the initiative to maintain active status. In the

case before us, respondent claims he is not subject to the

disciplinary authority of the Board because he is not

engaged in the practice of law in the District of Colum-

bia; yet, at the same time, respondent has complied with

the requirements for those attorneys who are practicing

law and, indeed, has not complied with the requirements

for those attorneys who are not practicing law or who

have changed status from active to inactive membership.

A7

For this reason, we conclude that respondent for more

than a decade intended to be considered or held himself

out as an attorney engaged in the practice of the law.

Having done so, he cannot now avoid the disciplinary

authority of the Board. While we do recognize a distinc-

tion between mere eligibility to practice law in the Dis-

trict and actual practice of law, we note that respondent’s

behavior over the years, notwithstanding that he may not

have had clients in the District, constitutes practicing

law.

Thus, on the facts of this case and in light of respond-

ent’s continued and voluntary maintenance of active bar

membership, we find that respondent is properly within

the disciplinary authority of the Board as contemplated

by Rule XI, § 1.

III

D.C. Bar R. XI, § 7 provides the appropriate standard

for our review of the Board’s Report and Recommenda-

tion:

[T]he 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.

See also In re Smith, 408 A.2d 296, 302-03 (D.C. 1979)

‘(substantial evidence standard).

We have reviewed the Board’s findings and the record

of the proceeding before the Hearing Committee. Given

the ample factual record in this case, it is clear, as the

Board found, that respondent “stole the money entrusted

A8

to him by [his clievit], including her bank accounts, the

money received from the sale of her mother’s car, and the

payments received by respondent on the house.” Thus,

the Board’s findings are supported by substantial evidence.

Moreover, we conclude that the recommended sanction

of disbarment is appropriate and consistent with that

given for comparable misconduct in other cases. As we

stated in In re Minninberg, 485 A.2d 149, 151-52 (D.C.

1984) (per curiam), “(mJisappropriation by an attorney

of a client’s (or other) funds is a most serious offense.”

Indeed, “such misconduct demonstrates absence of the

basic qualities for membership” in the legal profession,

and accordingly, “disbarment should ordinarily follow as

a matter of course.” In re Quimby, 123 U.S. App. D.C.

273, 274, 359 F.2d 257, 258 (1966). This court has

repeatedly adopted the Board’s recommendation of dis-

barment in cases involving misappropriation of funds.

See, e.g., In re Minninberg, supra, 485 A.2d at 152 (con-

version to own use of funds pledged to bank under trust

agreement warranted disbarment); Jn re Burton, 472

A.2d 831 (D.C. 1984) (per curiam) (commingling and

misappropriation of funds held in fiduciary capacity war-

ranted disbarment). We agree with the Board that

“(t]here is, on the record, no reason why this normal

sanction of disbarment should not apply.” Accordingly,

it is

ORDERED that Hugh M. Wade be, and hereby is, dis-

-barred from the practice of law in the District of Colum-

bia effective thirty days from the date of this opinion.

So ordered.

A9

ROGERS, Associate Judge, concurring: Although this

opinion would constitute future notice, I write separately

to indicate that I think Rule XI should be amended to

incorporate the holding of this opinion. Our Rule should

clearly state that a member of our Bar cannot escape

disciplinary review here and retain a misleading un-

blemished record, notwithstanding admitted unauthorized

practice elsewhere. By so amending our Rule, it would

be in conformity with the disciplinary procedures in

Maryland and Virginia. Rule BV1(a), Mp. Cope ANN.

(1986 Supp.) (“ ‘Attorney’ means any person admitted

by the Court of Appeals to practice law.”) ; Va. Sup. Ct.

Rules, Part Six, Rule 6: IV, 718, 216 Va. 1143 (1976)

(“ ‘Attorney’ means a member of the Virginia State Bar

shee he

District of Columbia

Court of Appeals

Filed May 29, 1987

Alan I. Herman

Clerk

Appendix /s/

Deputy Clerk

Al0O