*1 vеsted in hardship under the discretion Super.Ct.Dom. sentence of
by the second by dispensing publication 4(j)
Rel.R. it that if the newspaper.
in a I take second publica- requiring had an order issued Reporter, only Washington
tion Law periodical specified 4(j), in Rule recognize that such an order was scope
well of its discretion within the publication in cost between
the difference Reporter paper preferred showing
the movant was No $7.50. inability pay differ-
was made of
ence. ANGARANO, Appellant,
William J.
v. STATES, Appellee.
UNITED Appellant, LONG,
Richard H.
v. Appellee. STATES,
UNITED Appellant, McKOY,
Lucius Frank
v. STATES, Appellee.
UNITED BARNES, Appellant,
Gertrude Appellee. STATES,
UNITED
Joseph RUSSELL, Appellant, STATES, Appellee.
UNITED
Nos. 7312 and Appeals.
District of Columbia Court
Dec. *2 Lefstein, Robert Weinberg,
Norman Jeffrey Freund, Washington, C., ap- D. for pellants. Titus, Jr., Atty.,
Harold H. U. S. Pease, Terry A. and William D. Asst. John Attys., appellee. U. S. for Canfield, Jr., Austin N. F. and David Webster, C., Washington, D. amicus curiae Bar Association of the District Columbia.
Charles and David T. Duncan N. Webs- ter, C., Washington, D. amicus curiae Board of The District Governors Columbia Bar. KELLY, REILLY, Judge,
Before
Chief
FICKLING,
GALLAGHER,
KERN,
NE-
BEKER, YEAGLEY,
HARRIS,
Asso-
PAIR,
Judges,
Judge,
ciate
Associate
Retired.1
HARRIS,
Judge,
Associate
with whom
REILLY,
Judge,
Chief
NEBEKER and
YEAGLEY,
PAIR,
Judges,
Associate
Retired,
Associate Judge,
concur:
Reconsideration
sought
en banc
been
of the decision
division of the court
Judge
particii>ated
judge pursuant
PAIR
in the resolution
came that of a retired
to D.C.
.Judge prior
of this matter as an Associate
Code
11-1502.
April 14, 1974, on which date his status be-
ment, represented by attorneys
them-
in these
have not been
(which
cases
con-
who
obliged
solidated but which have been considered
selves are
to be members of
bar,
together
vigorously opposed
filing
unified
for the convenience
parties). Angarano
brief tendered on behalf of the Dis-
Bar,
D.C.App.,
contending
trict of
that the
Columbia
A.2d
not,
“may
consistently
unified bar
with the
light
motion is
of the dis-
denied.
*3
Amendments,
senting
expressed by
First and Fifth
and without
views
our brothers
Gallagher
Kern,
position
creating significant
of in-
the
of the
issues of conflict
terests,
partisan positions
mаjority
briefly
take
should be stated
with re-
mat-
aspects
spect
ters being litigated in the
to three
of these
District of Co-
cases.
3
party.”
lumbia courts
it is not a
to which
The
the
I.
Brief of
There
no doubt that the constitutional
District
Columbia Bar
of
submission,
problems presented by the
of an
purportedly
amicus brief
the
expressing
One concomitant
the extensive Dis-
of
position
membership
of the total
of a com-
reorganization
trict of Columbia court
de-
pulsory
question
by
bar on a
to be decided
by Congress
creed
the creation
1970.was
See,
this court are
g.,
serious ones.
e.
generally
this court of what is
referred
Donohue,
820,
Lathrop
367 U.S.
S.Ct.
Acting
to as
unified
the au-
bar.
under
1826,
(1961), particularly
g.,
Thirty-seven
ting
judges
forth the
United States
Photo
two
grant
who voted to
graphs, 402
motion. While
S.Ct.
U.S.
particular
dispose
did
L.Ed.2d
division
it,
narrow
in no
before
sense did
its action
constitute
“decision” of the
II. The Procedural Posture
contemplation
court within the
of either M.
the Case
Ryan, D.C.App.,
A.P. v.
third
filed a
attorney
PDS
motion for
States, supra
part
a
of the
—constituted
leave to
withdraw. Exclusive of
few ci-
body
jurisdiction,
of law in this
absent
tations, the entire text of that motion was
rejection by a
court en
majority
appellant
as follows: “Counsel for
is com-
banc or
Supreme
reversal
Court.
pelled to respectfully request
to with-
leave
See,
g.,
States,
e.
Robinson v. United
draw
from and
counsel
have new
U.S.App.D.C. 325,
positions majority, po is seen that the It thus ultimate minority may dissenters sitions of the be characterized succinct- ly as far apart. follows:5 is not (1) PDS contends faith,” permitted “in absence bad whether of evidence of PDS with permitted should be withdraw draw at the level if a real ques upon the alleged “that he tion exists as whether naked assertion ineffec duty conflict attorney may situation tiveness of a arising pursue a in- proportions. nonfrivolous claim reached constitutional See against Thompson D.C.App., effectiveness member of United a fellow A.2d 766-767 If such a agency”. his law firm or The division con opinion Angaraño exist, assuredly flict following includes the of interest does most two statements: “The is certain- leave threshold to withdraw should and would *5 higher ly nonfrivolity. granted. in such is cases than PDS seeks carte What blanche ** * appellate handling to from We think the better test is the withdraw applied any one the trial which was when deter- casе tried anoth [in court] mining attorneys, er necessity hearing simply by stating for a on a collateral attack that asserting present. “ethical considerations” are ineffective as- position rejected by sistance of That is counsel. That is—does the all mem contention, true, majority goes if bers of the court. entitle pleader relief; or, prima is a from conclude that of con- there to we have facie case stitutional obligation satisfy apparent?” prima ineffectiveness ourselves that a 312 facie (citations omitted). A.2d 298 of constitutional ineffectiveness “Again, granting we state that exists upon ... before leave to withdraw.6 an attack 738, California, trial counsel is a 386 device be Anders used on U.S. Cf. appeal except 744-745, 1396, 493 S.Ct. 18 L.Ed.2d most severe cases of glaring ineptitude.” (1967). at 300. A.2d (3) dissenters take middle-ground a question, Beyond none of the ma
position, rejecting position but PDS jority appellate having a at envisions PDS stopping short of majority’s view: through torney attorney a trial attack PDS “. . . it is appel- our view when that arguing constitutional ineffectiveness late counsel finds himself in this [ethical] problems, it predicament considering these counsel. need advise the court of the nature of relationship his close must be mind that few claims with borne trial counsel . a properly be general and state in ineffectiveness raised terms issue, as, Appellate such from a appeal asserted failure direct conviction. any organization impute 5. The two bar do we bad faith In no sense briefs contain Opinion Gаllagher concepts Judge recitations of various See PDS. Rather, position agreement, 468, which we are in full our but briefs infra. stop are, showing” “prima recommending spe- “good somewhat short of facie faith” essentially this, showing setting cific standard as to iden- such should granting be made to warrant leave to with- tical twins. general tenor, however, sup- draw. Their portive position of PDS. prima issue exists facie ineffectiveness be- confines of the by the courts are bound withdraw, grant leave to fore we will them, (1) and the vast records before appoint (who will new be raised questions must of ineffectiveness then to assert such would decide whether through a collat initially the trial court an issue in seek collateral pursuant this court or to to D.C. eral attack advanced Further, court).9 relief in irre- 1973, [or, depending Code 23-110 spective par- treatment of circumstances, Superior court’s under Court case, appointed ticular no bar there is Criminal See United 32(e) Rules 33].7 to the trial Mandello, 1021, going counsel’s 426 F.2d 1022- States point hearing possible need for a out (4th Mitchell v. Unit 1970); Cir. cf. 57, question. on an U.S.App.D.C. ineffectiveness 259 F.2d ed denied, cert. U.S. (1958).8 The correctness L.Ed.2d 86 herein, pleading In an earlier readily proceeding in a fashion ac such stated “strongly that its Trustees Board knowledged minority. Opinion by the See recommended that the Public Defender of Judge Gallagher at infra. Service seek leave to specific cases, any preju and that to avoid sure, any collateral at To be dice the cases specific clients not be tack advanced in the trial court under § discussed in The contention detail.” upon allegations 23-110 which is based the disclosure which we hold to be ineffectiveness, if the trial court concludes necessary prejudice a client strikes held, hearing non-PDS all, illusory. us if an After ineffective attorney original if the should be question ultimately ness considered See, agency. trial counsel e. was with presenta and decided a full g., People v. Ill.2d 230 N.E. Smith, 37 tion must be made someone some proposition, 2d Yet ob point. apparent We can understand the is, vious as it what is not the court has required say desire of PDS not to be dealt with in In the these cases. decision *6 anything suggest particular which which we now decline to reconsider en ly poor performance by any member of its banc, directly deal court did not with staff, able accept but the argu we cannot type of showing which should be made ment preliminary that a limited disclosure the trial to seek to court to a prejudice motions division new counsel raise to an ineffec appellant’s rights. tiveness issue level. What say feel obliged did is that we re to Petition en for reconsideration banc de- nied. adequate specific showing ceive an that a purposes which decided it two members of For collateral included of a attack on a minority conviction, case. There § 23-130 is vir D.C.Code tually indistinguishable part argued counsel in his own ineffective- from 28 U.S.C. (1970). ness as trial The court stated that 2255 counsel. be avoided” such “conflict should and noted States, also See Bruce v. United 126 U.S. situаtion, properly in such a App.D.C. (1967) ; F.2d 113 379 United Id. should seek leave to withdraw. Nonetheless, at 718. (4th Fisher, States v. F.2d 477 300 Cir. did not find it neces- the court 1973) Davis, ; United 436 States F.2d 679 sary readily appoint counsel, to and re- new (10th Dyer 1971) ; Cir. solved the issue on its merits. ineffectiveness U.S.App.D.C. 312, 315, F.2d (This merely factual, reference to Bhelton is (1967) dissenting). (Bastian, J., any way encourage and to is not intended argue appointed appellate to tlieir own opinion
9. Of interest is this court’s recent trial.) ineffectiveness at States, D.C.App., Shelton v. A. United 2d division of the court problem is this jurisdiction with Judge, GALLAGHER, Associate —and the D.C. briefs of is discussed which and FICK- Judges KELLY whom Associate Bar Association.2 Since D.C. Bar and the join, dissenting: LING filing the brief accepted has for court’s by the addressed proceeding refer need Bar Association the D.C. statement, this dissent orders further our discussion it no filed, has two facets: the discussion amicus issue. We confine accept the failure of the court to (1) asks Service the Public Defender (1) curiae the brief amicus on behalf our go pursuant en banc this court the Pub Bar itself denial of D.C. a con in order resolve 40(c)(1) Rule rehearing lic Defender motion hearing decisions of two flict between prior en banc denial of motions alleges court, and also of this divisions appellate representation from Angarano v. court’s that this decision separate criminal five cases. States, D.C.App., A.2d United contrary “to analysis adopts an (1973), premises the adver
the fundamental I. system in accord sary precedent”; existing court, pursuant Bar moved this The D.C. D.C.App.R. 29, permission to file a Bar and (2) the District Columbia requests supporting amicus curiae brief District of Bar Association of the (PDS) to with- Public Defender Service Bar Associa- Columbia D.C. [hereinafter rep- grounds draw on asserted to be believe issues raised both tion] pend- appeals resentation in five criminal importance ask leave of of sufficient this court. This motion of before file extensive this court to the rather Bar for leave to file as amicus was D.C. they amicus curiae briefs which vigorously opposed by government,3 proffered.1 reply.4 Bar filed The court Bar’s mo- denied D.C. tion for leave to amicus file its brief as This court ruled on the mo- follows granted curiae but Bar Associa- D.C. tion of D.C. Bar: request tion’s disagree to do so. We consideration On the motion for relate will our views on the net effect leave to file brief amicus filed curiae this ruling, viewed realistically. Duncan, President, Charles and David At all, Webster, member, the root it the Dis- Public Defender each of N. *7 question pleadings Service raises a Bar, under the Code trict of Columbia of Responsibility support opposition Professional thereof and in —an question relating thereto, practice it the afore- appearing of law from proffered by Instead, opposition 1. Tlie briefs came Bar this did not occur. very party government, Bar Association much the same as a from the which positions object, normally right as their are the same. a has a criminal particular standing this but it is without 2. The Bar D.C. is what is known as a unified question. The tlie case to raise constitutional bar, integrated sometimеs called an bar. It government opposition filed to the had no compulsory membership is a bar and came motions the Public Defender into existence rule of this court after a as counsel. of referendum members of the Bar D.C. As- favoring ju- sociation a in this unified bar Attorney also 4.An Assistant United States Association, risdiction. The D.C. Bar relating affidavit to the activities filed an hand, voluntary a other is association of law- study Bar Committee of D.O. jurisdiction. yers in this bars, of activities of other unified related thought 3. One if there were United States that committee Assistant opposition Attorney to it from would have come is a member. among membership Bar but of D.C. 460 practicing bar within would come “The Board of
said motion that Gover- particular purpose. this brief should nors believes that any event, the sense of the order it . be filed explanation majority’s of it are elusive. is directed that the Clerk ORDERED As we of read our rules elected Board brief as a to file aforesaid brief filed 7 represents and, Governors the Bar there- of the Board Governors behalf of of fore, purposes par- practical for all [Empha- of Bar. District Columbia ap- ticular case it is the Bar. No member sis added.] pears here and asserts otherwise. actually obscure because The order is concept of a unified bar leave a motion for was involved was what forms new one. It exists various now Bar, “on not someone file the D.C. plus in at least of 29 states the District Yet of Governors.” of the Board behalf Among the Columbia and Puerto Rico. ex- order preamble to the adopt a uni- earliest states to some form of purely collat- tracted of out context fied are: bar Bar’s memoran- in the D.C. eral footnote statement support the motion the dum — North Dakota 1921 believes Board Governors “[t]he — Alabama 1923 filed ... this should brief — Idaho 1923 sup- and, .” this as the — New Mexico 1925 file port, this directs the Clerk to court — California 1927 the Board brief “on behalf — South Dakota 1931 5 difficulty have further We Governors.” — Utah according understanding the order because — Arizona the Board of to the rules of — Washington management charged with the Governors — Kentucky Bar the affairs direction of — Texas IV, ; (Rule and one of 1) Section — Oklahoma purposes (affairs) of the Bar is “to safe- guard proper professional interest I, newly It is not uni- (Rule unusual formed the Bar” members of Section fied bar that there be certain glance, appear amount of
2). At
it would
rather
opinion
difference of
as to its
role
likely
legal
proper
question
us
ethics
that a
Furthermore,
V,
D.C.App.K.
4 entitled
5. The footnote
the Bar’s motion states:
Cummings
al.,
PUBLIC EXPRESSIONS
states:
In United
et
States
opinion
in-
Bar on
matter
No
raised
A.2d 229
major public
volving legislation
appropriate
interest
whether
for The District
major
importance
or of
amicus
or concern
of Columbia Bar
file briefs as
publicly ex-
members of the Bar
shall be
curiae. At
time the Board
of Gov-
pressed
study
the Board of
unless authorized
a committee to
ernors convened
report
question.
Governors.
on this
The committee
yet
reported,
the Board
Gov-
but
government
it-
7. At
time does the
аddress
no
ernors believes
never-
brief
relating
man-
self to this court’s rules
importance
*8
be
the
of
theless
because of
filed
Plainly,
agement
operation of the Bar.
[Emphasis
question
Bar.
the
to the
added.]
with in
these rules would have to be dealt
any
proper
D.C.App.R.
IV,
of the
role and
serious discussion
6.
1 reads:
functioning
managed
of the Bar.
Bar shall be
The affairs of the
by a Board of
con-
and directed
Governors
Lathrop
230,
Donohue,
8.
v.
10
102
Wis.2d
sisting
officers of the Bar and the
of the
(1960), aff’d,
820,
N.W.2d 404
367 U.S.
81
past-president
Bar,
immediate
of the
who
Applica
1826,
(1961) ;
L.Ed.2d 1191
S.Ct.
6
Board,
of the
shall be ex
members
officio
101,
Ass’n,
Mont.
tion of Montana Bar
10
by the members
and fifteen members elected
(1962).
461 procedural right of normally the accorded Apparently that is what and function. party be heard on whether litigating a question concerns This the here. for fil- be received an amicus brief should appears the of at times arise in context govern- ing, that here the the fact remains opposition the entire con fundamental on raising ment is a constitutional cept g., e. In re of unified bar. See Uni uncomplaining of Bar, behalf unnamed Hampshire 600 fied 291 A.2d New rights, it constitutional Donohue, 10 members whose Lathrop v. (N.H.1972);9 aff’d, says, government be violated. The would 230, (1960), Wis.2d 102 404 N.W.2d says con- Bar’s “intrusion” is “direct 1826, 820, 6 367 81 L.Ed.2d 1191 U.S. S.Ct. , interests of certain flict with stated ; As (1961) of Florida State Bar Petition sequ [Emphasis sociation, its own members.” (Fla.1949). added.] 902 40 So.2d Con any support record We are not aware ently, discussion constitution D.C. Bar for this No individual assertion. ality specific is found Bar-activities oppor- has court for the member askеd this cases challenge where there is a opposition to the Bar’s mo- tunity to state constitutionality of a bar itself. unified See, Donohue, tion. Lathrop g., supra, e. v. Olah, 497,
Sams
225
v.
II by Judges dentally, are the Chief Defender turn now to Public We Appeals for United Court of the States en petition rehearing for (PDS) court, circuit, States this the United this grounds banc on the that this court’s (1) Court, Superior Court and District States, su- Angarano in decision v. United the District Columbia.14 Commissionerof pra, prior deci- is in direct with a conflict PDS, doing, says so Board sion of this court in Smith “strongly Trustees recommended that the dated D.C.C.A. No. Order Defender leave to Public Service seek analysis adopt- “the July and (2) cases, specific withdraw from the and fun- counter to the ed runs [the court] any prejudice specific to avoid to the premises adversary system of the damental clients cases not be discussed existing and is not in accord with And, finally, detail.” both the Bar D.C. precedent.” and the urge D.C. Bar Association withdrawal allowed supra, While, deci- Angarano, unlike grounds, a seriously factor we should con- Fick- (Judge sion the merits division sider. Smith, supra, ling, dissenting) unreported order, rul- as is the custom in Turning first to the matter of decisional motions, ing upon most the fact remains conflict hearing between the divisions of
Smith a decision "this was nonetheless court, this it appellate is traditional court, and was after rendered a full-blown policy, reasons, court for obvious to avoid argument.13 oral hearing direct decisional conflict between divisions especially on issues Angarano It seems undeniable importance public to the and the Bar. fact, Smith As a are matter of conflict. Ryan, stated in A. P. We M. D.C. recognized this court stat- this was so and App., 285A.2d (1971) that: ed specifically Angarano, so supra, that, Beyond A.2d at 296 n. policy, As a matter of internal knows there is a be- conflict the issue adopted the rule that no of this division divisions; tween the two hearing prior court will overrule decision Service, Public Defender which was this court . . and . . . such . only moving party cases, in these also be- accomplished by a result can only be lieves and states there is this conflict. en court banc. [Footnote omitted.] There is additional factor that is- importance provided part sue practice is one of to the In our Rule 40(c) jurisdiction hearing rehearing law in this that “a party rais- [en banc] issue, ordinarily Service, not favored will not be or- Public Defender represents except by the high dered consideration de- when volume criminal necessary full to secure or main- system. fendants this court court There is the tain consideration, uniformity further its decisions . we do lightly, position adopt- [Emphasis take reason for that the ethical added.] practice ed before this courts is so elementa- the Public Defеnd- ry Service, extended er discussion unneces- which we discuss ful- will more sary.15 ly, was taken at their the instance of exception, hearing disposition banc are the 15.En courts of the motion They extra- when panel rule. convened assigned were heard before the ordinary exist call circumstances merits because the motion was consideration and decision authoritative filed after case was briefed and calendared charged administration those development argument. law of the circuit. appear, en banc When such circumstances 14. D.O.Code 2-2223. effective make more determinations “for *11 similar mo- filed two Earlier had PDS conflict
Moving to what the decisional was withdraw. One for leave to tions about, the Public De- actually in Smith in and as that Smith filed same date fender filed this motion: Service subsequent to the decision two were filed appellant compelled Counsel for assigned in All were of these Smith. to withdraw respectfully request leave No the court.17 one motions division of appointed to and have new counsel held, majority argument oral and was ethical considerations. this case due to in Kelly, panel (Judge dissenting), of this Ap Columbia Court See District of motions, that in denying the held order Rules, X; Rule Code of Profes peals prevail required first establish was PDS Rule Responsibility, Disciplinary sional ineffec- prima a facie case of constitutional 5-21, Consideration 2-110(c)(2), Ethical at the tive assistance of the counsel PDS 5-101, Disciplinary Rule Disciplinary States, supra, Angarano trial. (A), Consideration Rule 5-105 Ethical stage for this 312 A.2d at This set the 298. Borden, 9-2; A.2d 89 Borden v. petition by en banc. rehearing for a PDS Ryan, A. v. (D.C.C.A.1971); NLSP Smith, People v. (D.C.C.A.1971); 2d 728 By against voting rehearing a en banc 37 Ill.2d 230 N.E.2d where there is a direct conflict impor court on two decisions of obvious said, that this represented, as we It was tance; only ignores now the recommendation position at was taken own A. 'controlling decision M P. opposition No of its Board of Trustees. Ryan, as its Rule supra, 40(c), as well own by government. filed the motion was but it leaves in confusion on the issue the motion, it de- argument on the At oral Service, represents Public Defender wheth- veloped real issue was that the of defendants in percentage substantial was re- er Defender the Public Service system. If, our court as we said in A.M. quired satisfaction develop the court’s Ryan, supra, P. v. division of “no “nonfrivo- a factual basis the asserted for prior court will of this overrule decision lous” ineffective of constitutional court” where action now does court’s at the trial on the assistance that, might assert leave us? While one part of a Defender attor- Public motions, pub ruling Angarano was ney. majority hearing A division ruling lished the earlier on the Smith thought motion was sufficient certainly motion not —that potential without an elaboration on its avowed, be controlling where there is an merit granted the motion for recognized and unmistakable decisional withdrawal.16 conflict between divisions of the court.
judicial time-saving procedure having panels administration. Conflicts within Finality judges circuit will be avoided. of decision of three hear and decide the vast appeal pro- majority in the circuit courts of will be of cases to which no division especially Maris, Hearing moted. Those considerations are exists within the court.” important Rehearing Banc, 1954, in view of the fact our Oases judicial system page federal these courts F.R.D. States v. [United American-Foreign Corp., the courts of last resort run of ordi- S.S. 363 U.S. nary 689-690, Corp. cases.” Textile Mills Securities S.Ct. L.Ed.2d 1491 Commissioner, pages (1960).] 326 at U.S. 334-335, page 278, 86 L.Ed. principal utility already “The 16. The determina- briefs Smith had been filed appeals cursory reading tions the courts of and a banc is of the uncontroverted integrity to enable the court to maintain its facts revealed substantial constitu- by making possible as an litigated institution tional issue had not been judges always attorney. of its to control thereby uniformity to secure and con- tinuity decisions, enabling in its Smith, yet while 17. Unlike briefs had not been court at the same time to follow the efficient filed these five cases. deprived defendant Otherwise, opinion published the last g., Angar (see, e. rights Amendment Sixth he the law— of the court would division ano, 298). 312 A.2d until the next one. fairly issue consider that basic We departure was a Angarano decision being: Bar stated prior this court
from a
decision of
*12
the motions
principal
(a)
three
reasons:
the
attorney
Public
Whether
were,
Angarano
for all intents
Smith and
propriety ac-
Defender Service
rulings
purposes,
and
identical but
appointment
represent an indi-
cept
previous-
completely different,
as
(b)
were
gent
appeal
a case where
convict on
stated,
ac-
ly
opinion
Angarano
represented
by
at trial
сonvict was
this,
knowledges
(c)
the full
lawyer
another
Defender Service
Public
parties
a conflict
know there is
well
judgment good
faith
and where
hearing
the two
divisions.
between
issue
legitimate
exists
adequacy
as
the constitutional
Actually,
division of the court
unless a
representation provided by the Public
feels the
en banc
be con-
matter of
should
Defender
trial counsel.18
Service
prior
sidered
and unless a
full
distinguishable,
duty
decision is
it is the
issue, it
discussing
might
Before
departing
prior
division
to avoid
point
preliminarily
well
out
decision of the
Harris v.
court.
United
that,
recognizes
Defender
Public
D.C.App., 315 A.2d
575-576
fairness,
receive a substitute
(separate
Judge
statement
Ne-
appellate appointment
of its
where one
beker).
the stat-
allowed to withdraw on
ground.
ed
all,
that,
All in
we think
in view of the
decisional conflict between the court’s divi-
it,
agreement
As we
there is
understand
sions
importance
of the issue on
all around that the Public Defender Serv-
practice
jurisdiction,
of law in this
as
correctly analogizes
ice
firm
itself to law
evidenced by
importuning
the D. C.
for present purposes.
In Borden
Bor-
Bar and D. C.
Association,
Bar
den,
D.C.App.,
(1971),
277 A.2d
92-93
was seriously mistaken in denying rehear-
we stated that:
ing en banc in this
issuing
case and
instead
an opinion
precedential effect,
with no
are reluctant
to make
ever
an ex-
[W]e
hope
it will not
proce-
be viewed as a
ception
professional
from the
norm for
dural precedent.
attorneys employed by
government or
provide
representation
others
legal
who
A. The final point for discussion is the
compensation
without
from the client be-
contention
petitioners,
D. C. Bar
misap-
cause then we
encourage
D.
Bar
C.
Association that the Angarano
prehension
special
nature
analysis is contrary to the fundamental
representation justifies departure
such
premises of the adversary system and con-
profession’s
from the
We
standards.
trary
precedent.
important
It is
to be
always
should avoid
action that
aware that the majority expressly leaves
give
appearance
govern-
Angarano standing,
including its
sua
attorneys
“legal
ment
Hessians”
sponte
record,
review of the
as the author-
hired
job”
attorneys
“to do a
rather than
itative decision
jurisdiction
.
law.
[Footnote omitted.]
issue
presented.
here
Angar-
heart of
ano is the
sponte
sua
review of the record
That
Neighborhood
involved
by this court in order to decide on the Legal
Program
Services
(NLSP). We
merits whether the asserted
said, further,
lack
specifically
that we
included
Amicus brief of the D.
Bar
C.
(i)
(i).
Association at
and brief of the
Bar
D. O.
attorney
perform in
set the.desire of the
but also “the Public
NLSP
Counsel,
profession by
highest
traditions of the
Defender,
Corporation
part
indicating
shortcomings
on his
Attorney,
as well
the United States
constituted ineffective assistance of coun-
members
bar who are ‘house coun-
at the trial ?
corporations engaged in the
sel
prac-
sel’ for
n.
Id. at 93
‘public
tice of
interest’ law.”
partner
If a
in a firm is
law
ne-
(emphasis added).
there
no
So
represent a
defendant
appeal
conviсted
cessity
already
estab-
to belabor what
represented
had
at trial
who
been
lished, namely,
the Public Defender
consideration,
and,
partner
own law
Service,
Profession-
insofar as the Code of
genuine
that there is a
issue
considers
concerned,
Responsibility
al
is on .the
partner
ineffective
whether his
rendered
in-
footing
same
here as a law firm an
trial,
obliga-
assistance at
what is his
so, An-
practitioner.
being
This
dividual
tion? And if he files a motion to with-
*13
garano, supra, and the full court’s action
issue,
draw
the existence
the
because of
banc,
rehearing
petition
the
en
has
on
for
require
should the
court
him to
practice
law in
long
the
reach into
give chapter
If
partner?
and verse
his
on
this de-
jurisdiction. By
this
this we mean
required,
it were the law that this is
deeply
cision reaches
into a serious
likely
in
first in-
that be
inhibit him the
to
question
practice
law
relating to the
making
stance from
the motion to with-
lawyers.
the
all
It is not restricted to
local
And,
so,
apt
draw?
if
is the defendant
to
may be
Public Defender Service. This
get
representation
he is
the full
to which
why
Bar As-
the
Bar and the D. C.
C.D.
entitled ?
sought
be heard in this case.
sociation
to
ethical considera-
These are some
matters,
ap-
simplify
initially
we
To
because,
us
tions in the case now before
proach
standpoint
issue from
said,
Defender Service
Public
prac-
practitioner. Suppose
individual
this
question
plainly
footing
the same
on
on
represented
titioner
defendant
convicted
or,
practitioner
more
individual
as the
appeal,
at trial and also on
and concludes pointedly, the law firm.
good
legitimate
issue exists
faith that a
supra,
(cid:127)as
whether he afforded the defendant
Angarano,
to
court did
What
trial —what
effective assistance at the
Defender
require
was to
the Public
Service
descrip-
an ethical mat-
duty
attorneys
particularized
As
counsel?
to file
ter,
represen-
simply
his
should he
continue
the ineffective assistance of coun-
tion “of
argue
response
trial effective-
tation and
his lack
sel issue.” 312 A.2d
appeal;
this,
for
ness
seek leave to move
its Board of
on
or
to
stated
PDS
ground
trial court on the
that the
“strongly
a new trial
recommended
Trustees
ineffectiveness;
should he make
to
or
Defender
seek leave
of his
Service
Public
cases,
and recom-
specific
his client
and
known the issue to
from the
argue
respective
his
any
he remain in the case
prejudice
mend
to avoid
trial;
ex-
should he
or
not be discussed
ineffectiveness
the cases
clients
it wished
and recommend
further that
plain the issue
the client
stated
detail.” PDS
due
of Pro-
withdraw as counsel
Code
a motion to
reiterate its view
law,
presence,
opinion,
Responsibility,
and decisional
in his
fessional
discussing
assistance
ineffective
provided
prevented
“from
whether
attorney takes the
any great
“(1)
because
And if
detail”
at the trial.
cases
nonadversary
re-
course,
appellate court
issues
latter
discussion
general
prejudice the
spell
posture
in more than
quire
might
him
out
serve
the issue
clients;
simply discuss
(2) to
incapability manifested
terms wherein his
аn advocate would
because,
acting
without
be unwise
would that
itself? Or
acting as amicus curiae.”
tantamount
law, might chill at the out-
it
if it were the
motion,
had
reached
simply state the na-
PDS
then went on to
PDS
legal conclusions as
tactical and
same
in each case.
ture of the issue involved
Smith],
did
coun-
counsel in
PDS
[new
of this
then
division
Angarano
sel would
had an unavoidable obli-
have
in the cas-
records
proceeded
review the
pursue
gation
course of ac-
same
generally stated is-
and to discuss each
es
tion as outlined
result would
above.
then vari-
The division
sue
merits.
been,
best,
spectacle:
a ridiculous
to withdraw
ously
motion
denied each
lawyer attempting
one
discredit
PDS
Put another
prejudice.
it without
denied
colleague’s performance.
Such
way,
each
motion
after a discussion
might
occurrence
leave the trial
well
an as-
giving rise to
issue
the merits of the
judge
suspicion
of a
at-
collusive
substantial,
nonfrivolous, or
claim
serted
tempt
for a
to secure relief
convicted
ineffective-
counsel’s
on the existence of
client;
it
client
might leave the
wonder-
ness,
no motion to with-
granted
these,
whether,
fact,
col-
office
draw.
leagues
him;
against
it
conspiring
were
undoubtedly
hostility
would result
banc,
rehearing en
petition
In its
disharmony
staff;
among the
draws
disturb-
Defender
Public
perhaps
important,
potential
most
ing picture
where this court
left
disharmony
serve,
hostility
Angarano decision.
It
as a result of the
subtly, to chill
raising
legitimate
previous
by tracing
does this
initially
appellate issues on
*14
cli-
Smith, supra, following
course of events in
behalf
8-9; empha-
ents.
at
brief
[Petitioner’s
grant
of its motion to withdraw
sis added.]
that
It is related that this
case.
counsel,
court
then
new
who
We
validity,
think
contention has
thereupon
following steps:
took
gives
only
and it
us concern if
because it
then, pursuant
prac-
to established
fairly bristles
[H]e
with constitutional overtones.
See,
tice
filed motion for new trial with the
g.,
e.
Glasser v. United
315 U.
trial
alleging
that trial
counsel had
S.
L.Ed.
rendered ineffective assistance of coun-
might say,
time,
We
at the same
that this
sel;
grounds
because the
for the motion
apply
equal
mosaic would
force to a
lay
record,
outside the
words,
evidence
it was
law
In
firm.
other
one
only
need
necessary
evidentiary
to hold an
hearing,
spectacle
visualize the
one
law firm
called,
at which
partner
as his
forcefully examining
[new
his partner
counsel]
witness,
only
counsel;
original
an effort
establish his
lack of
sought
demonstrate,
through
professional ability
trial;19 or,
examina-
worse,
tion
argument,
that
trial counsel’s
one should
prospect
consider whether this
actions violated Smith’s constitutional
judgment
would affect
whether to
right
to effective assistance of counsel.
raise the
issue at
ineffectiveness
all even
8;
brief at
footnote omit-
though,
[Petitioner’s
objectively,
it
he believed
to have
problem
ted.]
merit.
If one considers the
practitioner,
individual
the issue becomes
The thought-provoking point
made
magnified.20
appear
in-
And it would
that
the Public Defender Service here is this:
practitioners
majority
in the
dividual
are
Had the
defеndants
representing
division which
those
criminal
considered the
motion
jurisdiction.
Smith
denied that
spectacle
that,
neglects
(1974),
majority
It would be no less a
to mention
Public
attorneys.
here,
Defender Service
motion to withdraw
unlike
there was no
signifi-
case,
considerable
a matter of
relating
9).
(majority
tlie circumstances
n.
Shelton
cance
States, D.C.App.,
We
considerable
Service,
ing a
ed factor that the
Defender
sound basis for this court
force
Public
least,
unhealthy
jurisdiction
such an
choice on counsel seek-
is considered to
appeal.
composed
specialists in
to withdraw on
As matters
of well-trained
stand,
perceive
Consequently,
we
reason which
field
criminal
one
law.
might require
deny
normally
they
expected
us
such motion
to be
trial,
That
be bad faith will be “ineffective” at
in the consti-
reason would
withdraw.
Finally
attorney
part
asking
to withdraw.
tutional sense.
each PDS
prospect facing
Defender
asserts that
faces the same
all attor-
Public
Service
neys,
props
grave
bad
for its
mis-
faith would remove the
recurrence of such
hardly
takes would
enhance his career.
motion.
This
Ang
court in
araño did not ascribe
So, even if there were no other consider-
PDS,
bad faith to
nor does
obviously
ations—and we believe there
here, and we
basis for such a
discern no
—we
protection
think
is inherent
there
beyond that,
is the
conclusion.21 But
there
against any
pattern
such
of conduct. We
telling
pattern
consideration
such
moment,
do not
however,
mеan for a
discouraged by the
of conduct
such a motion to withdraw should be inhib-
facts of life.
ited
just
if it
considerations
related
is conscientiously believed to have suffi-
emerge
pattern
If a
were to
where the
Otherwise,
cient merit to be warranted.
infre-
Public Defender
was not
would in
discouraging
turn be
effective as-
quently filing motions withdraw on the
sistance
'simply
counsel. We
ground of
its at-
ineffective assistance
outline these checks and balances to illus-
trial,
certainly require
torneys at
it would
that,
view,
trate an added reason
in our
whether,
step,
as a first
consideration
apprehen-
court realistically need have no
be asked
Board
Trustees should
sion of a bad-faith
pattern
use
say
just
account.22 We
this because
Furthermore,
the motion.
if there were no
prac-
*15
neither
law firm nor an individual
ineffective
at trial it
assistance of counsel
public
long
titioner would
withstand
scruti-
hardly
expected
in
final
to be
they
ny if
often
in
appeared
court to seek
analysis a
This
reversal would occur.
withdrawal due
their
own ineffective-
ground
spar-
for reversing a
conviction
partners
trials,
ness or that of their
ingly
by appellate
utilized
courts.
Public Defender
Service would
should be faced with
reality.
the same
principal difficulty
explo-
with the
Additionally, we should think
in
those
ration made on the merits of the ineffec-
appointed managerial positions of
araño,
Ang
tiveness issues in
which that
could not reasonably expect
very
requires,
survive
decision
is that it
in
results
no so-
provided
generalized
21.PDS
investigate
this court with a
particular
[FJailure
or call
description
potential
surely may
of each
ineffective
as
witnesses
amount
to ineffective-
illustrate,
sistance of counsel
issue. To
in
ness of
in
counsel
certain circumstances.
States, D.C.App.,
Russell v.
nothing
United
generalized
312 A.2d
There
was
the above
295,
(1973),
companion
showing
An
case to
to indicate bad faith and the division
ga rano,
Angaramo
it was asserted that:
did not so conclude.
“[A]ppellate
through
learned
in-
earlier,
formation outside the record that
for non-
22. As we stated
the members of the
tactical
reasons
trial
counsel did not se-
Board
Trustees
presence
important
Judges
cure at
trial
of an
various Chief
and the Commissioner
jurisdiction.
witness on the issue of misidentication.”
Compare
Thompson,
United States
U.S.App.D.C.
347,
(1973),
Deputy
475 F.2d
The Director and
Director of PDS
normally
pleasure
where the court said that while
serve at the
of the Board of Trustees.
decision
which witness to call was the trial
D.C.Code
2-2224.
counsel’s:
really
apparent
Angarano
what
It is
And as
lution,
was a futile exercise.
holding that
Defend-
stands for is a
Public
by the court
approach
will show this
we
er
have
a show-
not made
Service counsel
is all about
ignore
this case
what
seems
is-
the merits
the ineffectiveness
on
question
legal
—the
ethics.24
grant
sue
warrant a
sufficient
any notion that
Initially, we
aside
brush
motions
in these cases.
to withdraw
made a
Angarano division
in-
merits of the
determination on
final
irony
is that it
of it all
leaves coun-
by counsel as
issue described
effectiveness
precisely
they
sel
where
were before on
of effective
itself
denial
would be a
they
sought
ethical dilemma
which
fact,
counsel.
assistance
nothing.
be extricated.
It solves
Because
prelimi-
specifically
stated
unless this
is going
arrogate
court
effect,
which, in
nary
Angarano,
order
itself
right
dictate
what
issues
description
particularized
called for more
be,
he,
ap-
or should
raised on
issue,
showing need not
“[s]uch
peal, counsel
follow their
judg-
must
own
advocating ineffective-
the form of
take
ment
very
these
on
raise
same issues
supra,
471 conflict employment knowing fender’s office a of interest accepting be will since, natural ought to on one hand its lawyer that “a firm inclination [their] reputation protect to its called . D.C. would be de- be as a witness . . charges incompe- App. X, fending against the of R. DR if the (B). 5-101 But even hand, while, duty represen tency on the other assuming court is that continued petitioner in es- tation as an advocate is to aid in these cases is or ethical clearly, unethical, tablishing veracity charges. less of these that it is not Ethical spells conflict-of-interest situation should why arguably Consideration 9-2 out This proper appoint- petitioner and the be attorneys conduct be avoided should public avoided if other defender ap such conduct has ed counsel than even pearance represent impropriety.28 hearing to him at new on his of 624, 230 petition. N.E.2d 170.] [Id. presented may
While the
here
situation
unusual,
seem
it is not
precedent.
without
Subsequent
the Uinois
decisions
The
has been reached in Illinois.
have
courts
characterized failure
follow
Smith,
People
622,
In
v.
37 Ill.2d
230 N.E.
“highly prejudi
rule set out
above
petitioner
post-
2d 169 (1967), the
sought
right
capable
full
cial to defendant’s
and
alia,
alleging,
conviction relief
"inter
pointed
assistance of counsel”
out
and
trial,
public
his counsel at
de
assistant
оbviously
attorney
that “where his
has di
fender,
incompetent
was
for various as
loyalties
clearly
vided
de
defendant
signed
ap
reasons.”
circuit court
prived
right.” People Gray,
of this
v.
4 Ill.
pointed
public
represent
defender
934, 935,
App.3d
189,
N.E.2d
190
282
petitioner
Supreme
and the
Court
(1972);
People
Sigafus,
see
Ill.2d
v.
39
Illinois held
rep
was
entitled to
29
68,
N.E.2d
(1968).
233
386
by appointed
resented
than
counsel other
public
defender. The court said:
validity
People
reasoning
Smith,
We have
.
.
.
recognized the dis-
supra, has been borne out
v.
advantages,
Brittain,
petitioner
People
both to
subsequent
In
v.
52
case.
public
office,
rep-
91,
(1972),
defender’s
Ill
having
.2d
An analogous Surely situation if that state of affairs was suffi- Campbell States, tion occurred in cient to arouse the court’s concern U.S.App.D.C. 250, 126 F.2d (1966). Campbell31 135 partners where no law were involved, There new a counsel moved for new trial here record be suffi- should witnesses, ground certain alibi cient “that to grant the motion to withdraw. called, if placed would have [the defendant] reaches the conclu overall far from the scene of crime at the cru- by way sion proceeding that if were PDS cial hour.” In the attack collateral under D.C.Code original attributed this to failure trial 23-110,32 attorney trial was § counsel, who had been aware of wit- these counsel, attorney a non-PDS should auto nesses, but matically appointed if trial court
[although
suggested
original
hearing
that the
In
concludes
should be held.
support,
People
Smith,
might
good
trial counsel
not have
su
had
there is cited
v.
failure, Appellant’s
conclusion,
us,
pra.
reason for
to
this
coun
This
unsound.
sel in this
explained
why
court
own fail We do
understand
not
defendant
ure
call
original
to
a witness
imprisonment
should
to await
(after
have
the hearing
at
on the motion for new
right
appeal
exhaustion of his
to
to this
by
saying that he had not wanted to
indepen
being able to
court) before
obtain
expose
embarrass
him
trial counsel and
dent,
issue
uninhibited counsel to raise the
suggestion
to a
of ineffective assistance.
' Furthermore,
any
to
on his
behalf.
High
professional courtesy
standards of
proposi
in the Illinois case cited
etiquette
between members of the
Smith,
(People
happens
tion
supra)
v.
it so
important
bar are
elements
an effi
and,
pleaded guilty
that
had
the defendant
system justice,
duty
cient
but
if
post-conviction
consequently, a
collateral
professional
client and
to a
deference
only remedy.34 But
was his
proceeding
colleague
conflict, plainly the
come into
say
any
hardly
this is
the decision
latter must
U.
yield to
[126
former.
support
independent
theory
250-251,
S.App.D.C.
F.2d at 135-
pro-
(emphasis
new counsel would
also have been
supplied).]
impose
sentence,
defenders,
they
pur-
or that
not one
such
contain
word
risdiction
portedly
by any
maximum
in excess
them.
was
uttered
There
sentence
subject
law,
counsel,
any stage
nothing
or is
authorized
оtherwise
indicate
attack,
court, sought
the court
as-
move
of the case in the circuit
collateral
vacate,
imposed
petitioner’s complaints,
set
which
the sentence to
certain
basis of
[Emphasis
pro
petitions
se
aside
correct
the sentence.
were
amended so as
Clearly,
legal
supplied.]
state his
form.
contentions
petitioner
receive the
as-
did not
effective
sure,
ad-
33.
attack
“To be
collateral
we have
es-
sistance of counsel which
held
a non-PDS
23-110
...
§
vanced under
..”
Id.
N.E.2d at 633.
sential
original
attorney
if the
agency.”
opinion
per
with that
was
trial counsel
This
curiam
entered
was
Judge (now
Justice)
then
Bur-
Circuit
Chief
also
The line of Illinois cases cited
us
ger
Judge Wright
Pretty-
(Judge
and Circuit
proceeding
generally
involved
a collateral
dissenting). Ultimately,
man
as is most often
pleas
imprisonment
well after
after
case,
appellant
failed on the merits of
supra;
guilty.
g., People
Brittain,
E.
v.
the ineffective
assistance
of counsel claim.
Watson,
supra;
People
People
Terry,
v.
v.
U.S.App.D.C.
473
155,
prosecute a diréct
2d
(1970);
159 n. 11
Campbell
vided the defendant
v. Unit-
States,
appeal
supra.
preferred
after trial.
ed
This
if he had been convicted
provides
course because it
a record for de-
explain
majority
does
What
allowing
attempt
cision rather than
“an
on
why
should be
different rules
there
two
retry a criminal case in
appellate]
[the
pro
of counsel
collateral
withdrawal
presented by
court on
affidavits
It
to us
ceedings
appeal.
and on
seems
Thompson,
counsel.” United
su-
States v.
fundamental considerations
the same
348,
pra
(Robb, J.,
at
298. One should things as this course such “Of of the issue see where that erroneous view stop is it happen, place never immediately stating after leads. Because the advocate professional conscience of view, preceded inap- by an which was F. involved.” Porter v. United sponte exploration of the propriate sua 1962). “[J]udges (5th 2d Cir. record, surprisingly, sta- proper standards strive to maintain ted: rep- performance by attorneys who are inadvertent failure We hold that even resenting in criminal cases defendants as to to raise constitutional attack this Richardson, 397 their McMann v. courts.” amount a vi does 22-2701 759, 771, 1441, 1449, 25 L. U.S. appellant’s Amendment olation of Sixth Ed.2d 763 representation. right to effective [An 298; empha garano, supra, 312 A.2d at majority question treats the B. The sis con- problem added.] on what simply presenting of counsel. assistance stitutes ineffective majority This demonstrates that States, supra, the Angarano present- views the motion to withdraw avoiding “a purpose court announces ing essentially question on the merits 'ineffective’ as- wherein state of the law the asserted of the trial ineffectiveness an effective can become sistance of counsel questions (1) rather than the counsel A. way obtaining a new trial.” Id. 312 appellate may, consistent whether counsel 2d at 300.36 Responsibili- with the Code of Professional We, hand, such can see no on the other participate any whether ty, further and presented. inef- question What constitutes may properly explore the record this court is be- nowhere claim, fective assistance counsel make alone merits of let simply fore us. is before us it, What The strik- “holding” as was done. faith question good of whether ing thing Angarano, is that nowhere in su- issue” exists as showing “legitimate here, that a pra, majority opinion nor rep- adequacy of the to the “constitutional acknowledgment there that what is essen- 37 re- resentation counsel” provided trial tially presented legal eth- quires appellate removal to seek they actually Consequently, do not ics. partner if his law perplexing. This is deal with issue. counsel. refine the between the To difference majority dissent, crucial with the
Our difference it is our view require appellate is that we would not when finds himself (Powell 36.Ever since the Scottsboro case Bar Association Amicus brief of D.C. Alabama, (i) (i). U.S. L.Ed. Bar at S.Ct. brief the D.C. (1932)), however, the law has been that e¿titled Actually, involved, an individual new trial where there is no “contention” request permission assistance of counsel at his former trial was as it is a constitutionally inadequate. normally grounds, on ethical made before the briefs are filed. advise predicament profession, need and this Court should do everything of the nature of his close relation- can to goal. foster that counsel, here, ship with trial such as exists Bar, hand, The D.C. on the other after issue, general and state terms the such analysis painstaking puts the same it this as, important to call de- asserted failure way taking position the motions to justification. witness without tactical fense granted: withdraw should be *21 words, good In other make a faith enough identify showing “legiti- it is a [Tjhis do nothing Court should which claim, mate issue” rise giving to the which appears lawyer develop- to chastise a automatically anything of course excludes propriety of sense ethical which It is at this frivolous insubstantial. Court, organized the the bar and point depart majority, that we from the new Disciplinary actively Board are the proposition who assert that this court trying to foster. go only get must further and not the fac- claim, This effort the Bar accords with the normally tual of basis in- continuing Burger effect of adversary function, volves an Chief but also ex- Justice lively and, resurrect plore sponte interest the Code of record sua of all Responsibility. Professional As he said things, “holding” on occasion make a on not long ago: the merits of underlying the issue supra, Angarano, A.2d claim. at 298. compre- The basic raw material for majori- It is no Angarano, wonder professional hensive of conduct standards here, ty avoids the issue discussing is now available. This Association has ethics, perspective of legal where it be- general promulgated a Code of Profes- longs. Consequently, join we are unable to Responsibility together sug- sional with the in its statement that “the gested disciplinary stand- enforcement majority and minority are far not ards, a set standards for the detailed apart”; Angarano, supra, not with now prosecution lawyers, and defense being controlling jurisdic- left as press, standards fair trial and free tion. report disciplinary enforce- analysis After learned ethical standards, together, taken ment. Those involved, considerations Bar Asso- the D.C. hope maintaining an offer best position ciation takes the that: Bar, every honorable and effective state association now to bar should move nothing There being in this case from establish means make sure those which we can conclude that the claims rigorously standards enforced. faith, here are made in bad the Court Without strict enforcement of ethical permit of counsel withdrawal standards, mis- the Bar will fail in its not repre- so as him force to continue sion, have, it will and will never senting a client when to do so would deserve, pub- never the confidence of the рlace with,, him in if confrontation Judiciary Federal lic. State [The of, violation the Code of Professional —1971, ABA 857-58 J Responsibility. (Footnote omitted).]39 Bar, referring D.C. the Bar We believe Board Trustees of Association said further: Service, Public Defender D.C. Bar and Organized Bar and made sound the new Dis- Bar Association D.C. ciplinary and, Board are actively trying analysis no indication of bad faith foster a found, sense of propriety grant within the court should having been general area, Special In this Burger, Advocacy, 42 see also Chief Skills Justice Fordham L.Rev. 227 expressed en banc. petition deep for reconsideration concern about how a court, respectfully Division of the judge dissent. one dissenting, We has decided that issue. KERN, Associate Separate Statement response our While ostrich-like Judge: spared in this particular us case from de- court, ciding, as a the difficult ethical quite to understand I find it difficult question presented,1 paid for en banc we have rehear why court declines to respite temporary very price, viz., have di- stiff judges of its nine this case. Six here; abiding by presented the court’s own evenly on the Rule issue vided respon- 40(c)(1) and leaving the members professional that issue involves the uncertainty bar in a lawyers whom the afloat sea of sibility group of a dependent what the law is all look to Congress and the bar panel judges luck the draw as significant number of criminal handle *22 particular and, sitting who in a associations appeals; largest the two again the issue in the future. attorneys in the when arises District of Columbia comprehensively significant Gallagher Judge the vote discussed his statement clearly complex nature. en bane has described to rehear