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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 1010

## Text

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0423%3A1. Public record. Not legal advice.