*1 ROGERS, Bеfore TERRY and Appeals. District of Columbia Court NEBEKER, Judges, Associate 5, 1987. Submitted June Judge, Retired.* Associate Decided Dec. 1987.
PER CURIAM:
filed
1986 Bar Counsel
a two-
Board on Professional
against respondent
petition
count
Jones.
alleged that she had violat-
The first count
(DR)
Disciplinary Rule
ed
1-
legal
and DR
neglecting a
matter1
102(A)(5)
legit-
by failing to
The sec-
inquiries of Bar Counsel.2
imate
alleged
additional violation
ond count
1-102(A)(5),
failing
again by
inquiries Bar Counsel.
XI, 7(2),
R.
In accordance with D.C.Bar
§
*
1. DR
Judge
court at the time this
September
status
lawyer
6-101(A)
Nebeker was an Associate
changed
[******]
shall not:
provides
to Associate
case was' submitted. His
part:
Judge,
Judge
Retired,
of this
2.
the administration
A
[her].
(5)
(3)
lawyer
1-102(A) provides
Engage
Neglect
[******]
shall not:
in conduct that is
legal
justice.
matter
part:
entrusted to
*2
1-102(A)(5).
of DR
I do
of the Board held an
deemed a violation
hearing committee
Jones, however,
hearing.
provides adequate
did
this rule
no
evidentiary
not believe
punishable
hearing,
nor did counsel
tice that such an omission is
as
not attend
violation,
hearing
separate
commit-
and dis
on her behalf.
found that she had committed
viola-
violation which
tee
tinct from the substantive
alleged by
investigating.
and recom-
may
tions
be
Due
suspended
Specifically,
she
for six
process requires
mended that
be
more.
it re
practice
give
person
from the
of law.
Jones
quires
months
“that
laws
of ordi
hearing
objection
opportunity
commit-
nary intelligence
made
a reasonable
findings
prohibited,
tee’s
or its recommendation.
so that he
to know what is
[or
Board,
turn,
findings of
accordingly.” Grayned
v.
adopted
in
both the
may
act
she]
104, 108,
Rockford,
hearing committee and its recommenda-
City of
408 U.S.
92
again
suspension,
2294, 2298-99,
(1972);
a six-month
with-
tion for
TERRY, Judge, concurring: Associate (1983). L.Ed.2d 789 103 S.Ct. James, however, order, respondent attor opinion I court’s join Board, raise it before the ney had failed to misgivings. quite some I am trou- but with it had been result we held that and as a bled the notion that failure happened in Id. at 168. What le- inquiry from Bar however waived. case as well. Re- James be, happened gitimate inquiry may may be spondent only failеd raise this Jones I APPENDIX Board; issue before the she failed to raise DISTRICT OF COLUMBIA COURT OF any has not issue before Board. She APPEALS ON BOARD any pleadings appeared, per- filed or either PROFESSIONAL RESPONSIBILITY counsel, sonally hearing or before the Bar Docket Nos.: 291-85 committee, Board, or this court. James precludes these circumstances us *3 addressing question process from the due In the Matter of: here. respondent. separate opinion I write this I becаuse REPORT AND RECOMMENDATION treating about an have serious doubts at- OF THE BOARD ON torney’s respond inquiries to failure PROFESSIONAL RESPONSIBILITY separate of a disciplinary Bar Counsel as matter This is before the Board on Pro- violation, although may it some well have report fessional the Responsibility on of bearing on the sanction which court Hearing Seven, Committee Number which impose. chooses to Sooner or later some- on November recommended that preserve one will his or to right raise Respondent suspended be from practice court, issue and then shall be for six law months. pf forced to consider it. Bar Counsel filed a two- petition against Respondent count involv- NEBEKER, Retired, Judge, Associate ing complainants. pe- different two
concurring: tition, Bar alleged by Counsel violations Respondent following: of the I myself Judge write to disassociate from I Count Terry’s presenting for a invitation case an 6-101(A)(3) neglect legal DR of a opinion. issue about he has — matter presented Should a case be 1-102(A)(5) respond DR —failure respond future where failure to to Bar legitimate inquiries of Bar Counsel inquiry charged Counsel’s DR 1- under 102(A)(5),I little have doubt that members of the Bar are now on notice “what is of II Count
prohibited”
though Judge Terry
even
1-102(A)(5)
would
he ex-
have it otherwise. After
—failure
legitimate inquiries Counsel
pressed
expound
point
a desire to
on this
concurrence,
separate
a
Bar
evidentiary hearing
An
in this matter
requested
supplemental
to file a
memoran-
16,1986.
on
was held
did
addressing
Appendix
dum
it. I attach it as
hearing,
at the
nor was she
may
II so the
on
Bar
be
notice as to this
represented by counsel.1
1-102(A)(5).
interpretation
court’s
of DR
Hearing
Committee concluded that
Stone,
Wainwright
See
U.S.
6-101(A)(3)
Respondent had
violated
(1973).
94 S.Ct.
bond which
filing
petition
probate on
behalf
(BX 2).
pointment as successor
estate of
Chambers.
William
guardian, Respondent
As successor
prepared
petition
probate,
dent
accounting
required to file a first
with the
naming
personal repre-
Mrs. Chambers as
Superior
Court of
Probate Division
(BX 10).
sentative
(Rule
(a)
the District of Columbia
*4
19, 1983,
August
an order
en-
On
was
(e)
Superior
of the
Court Rules of Civil
by Judge
appointing
tered
Barnes
Mrs.
Procedure). Respondent failed to file the
representative.
personal
Chambers as
accounting
required
pursuant
Superi-
to the
rules.
or Court
3,1985,
May
by
an order was entered
On
14, 1985,
Judge
removing Mrs.
as
hearing
On March
was held
Barnes
Chambers
Judge
regard
Iraline
before
Barnes with
tо personal representative for her failure to
Respondent’s
accounting.
failure to file the
accounting.
copy
file a first
of the order
hearing,
Following the
an
for Re-
Order
Respondent.
of removal was sent to
by Judge
moval
entered
was
Barnes remov-
2,May
On
Mrs. Chambers filed a
ing Respondent
guardian.
as successor
complaint concerning Respondent’s repre-
Judge Barnes’ Order
to the
was referred
sentаtion with the Office of Bar Counsel.
Responsibility.
Board on Professional
21,1985,
May
forwarded
On
Bar Counsel
August
On
Bar
mailed
Counsel
copy
complaint
of Mrs. Chambers’
to
copy
of the Order for Removal to
Respondent
Respondent
directed
to re-
and
Respondent
dent.
respond
was directed to
spond
allegations of misconduct on
23,1985.
August
on or
Respondent
before
Respondent
1985.
did
or before
respond
did not
to Bar Counsel’s letter.
respond
not
to the letter.
August 27, 1985,
On
Bar Counsel mailed
copy
another
of the Order for Removal to
August
and
On June
Respondent
again
and
directed her to re-
again
Respondent and
Bar Counsel
wrote
spond by September
Respondent
allegations.
respond to the
directed her to
respond
did not
to Bar Counsel’s letter.
letters,
specifically
Respondent was
In both
respond could
September
her failure to
On
warned that
again
Respondent
respond
charge
directed
to
formal
of failure to re-
result in a
allegations
of misconduct within five
legitimate inquiries of Bar
spond to the
letter,
days.
specifically
In this
she was
(BX
16). Respondent
did
respond
advised that her failure to
could
respond to either letter.
not
charge
result in a formal
of failure to re-
September
Assistant Bar
On
spond
legitimate inquiries
Respondent with
served
Respondent
respond
Counsel.
Re-
allegations and directed
copy
of the
this letter.
days.
ten
Re-
spondent to
within
September
On
respond.
spondent did not
again
respondent
reply
once
directed
18,1986,
Instituting
Petition
June
On
days
again
within five
and once
warned her
Proceedings in Bar
Disciplinary
Formal
could result in a
that her failure
per-
291-85 and 173-85 was
Docket Nos.
charge. Respondent did not re-
formal
her home.
Respondent
at
spond
sonally served
to this letter.
respond.
respond.
She
did
It is
undisputed
Respondent
failed to re-
Discussion
spond
any
inquiries
of the written
direct-
Respondent
petition
failed
answer the
ed
by
to her
Bar Counsel.
and failed to
before
Hearing
.the
Hearing
Committee concluded—and
Committee, although she
properly
agree
Respondent
repeatedly
petition
served with the
and notified of the
—that
inquiries
failed to
hearing.
allegations
of misconduct set
of Bar Counsel in the course of his
petition
supported
forth in the
were
investi
by
gation.
convincing
Respondent’s
clear
provided
evidence
addressed
petition,
were uncontested
Count I and Count II of the
the Re-
spondent, and were therefore
proved by
deemed ad- Bar Counsel
clear and convinc
XI,
pursuant
7(2)
mitted
ing evidence,
Section
preju
constituted conduct
and Board Rule 7.5.
dicial to the
justice
administration of
1-102(A)(5).
violation of DR
In re Whit
Violation
lock,
(D.C.1982);
Respondent appointed Haupt, had been (D.C.1982); Court as and In re guardi- estate. As an, supra. reports to file Superior the Probate Division of the Discipline Prior (Rule Court of the District Columbia 305(a) (e) Superior Court Rules significant has a record of Procedure). Civil failed to prior discipline. *5 accounting file a first with the Probate received an infоrmal admonition based accordingly, Division and the Court re- upon assisting her lawyer, conduct in a moved her as of the estate. In a who jurisdiction, was unlicensed in this in prior involving matter this same engaging practice in the unauthorized of dent, the Court has held that failure to file 3-101(A). law in violation of DR reports such therefore failure to —and May, In Respondent received an- carry out of fiduciary one the core func- other informаl admonition—this time for required guardians tions of —constitutes the disciplinary 1) violation of two rules: neglect legal of a matter. 3-101(A) DR assisting an attorney, for a A.2d 119 (D.C.App.1986). Similarly, the non-member of District of Columbia Court has stated unexcused failure Bar, in practice the unauthorized of in law perform required a function demon- 2) jurisdiction; and DR proof Banks, strates neglect. of handling legal prepara- matter without A.2d 1038 tion adequate in the cirсumstances. Hearing Committee concluded that In September, Respondent was Respondent’s in conduct the instant case publicly censured District of by the Colum- clearly convincingly, and neglect constituted (521 119) Appeals bia Court of A.2d for the legal
of a matter in violation of DR 6- 1) violation of rules: DR three 101(A)(3). agrees. The Board 1-102(A)(5), prejudicial conduct ad- 2) Violation 6-101(A)(3), justice; ministration of matter; neglect 3) legal of and DR 9- respondent duty has affirmative 103(B)(3), complete failure to maintain legitimate inquiries case, public client records. The censure during the course of a disciplinary Respondent’s concerns conduct that investigation. is There substantial evi- during paral- had occurred dence on the record as a whole that Re- lels the case now before Board sever- spondent obligations of her aware respects. al in- public file censure case with responses Bar Counsel written facts: In regarding allegations following volved the Re- of ethical miscon- Respondent spondent appointed duct. had been Conservator served copy complaint person with a of and directed of the estate and the of Claire P. legal suspension neglect for oí a
month engaging matter and conduct Respondent failed to had file an Chatham. justice. of to the administration Report Inventory due November (D.C.1982), Whitlock, 441 accounting had failed to file an due respondent suspended Court ordered reports are February 1982. These legal matters, neglect two failure of 305(a) Superior of Court Rules clients, objectives of two seek the lawful Procedure. The Court removed of Civil 6,1982. carry employ- out a on failure to contract Respondent as Conservatоr services, at appeared had the hear- failure professional ment for the matter of her ing before the Court on comply Court orders and with removal. inquiries of Bar Counsel. (D.C.1980), Russell, 424 A.2d In In re
Sanction suspension the Court ordered six-month legal of the uncontested viola- neglect On basis matter which was coupled Re- tions in the instant respondent’s aggravated by the failure to case— long prior discipline, spondent’s record legitimate inquiries of Bar respond to the we endorse recommendations of Counsel. Hearing and the Committee that above, set For the reasons forth practice from the suspended rec- Responsibility Board on Professional period months. of law for a of six order the Court enter an ommends that Respondent’s stony silence matters practice suspending Respondent from the involving professional partic- of law for six months. troubling ularly the Board. Professional Board on voluntarily ignore has chosen to the disci- Keep By: Ann /s/ plinary process failing to to Bar February Date: investigations. in the course addition, note did not in this All of the Board concur members proceeding concerning at the formal Recommendation, Dr. except Report and Hearing charges before the Committee. participate. Alexander who unresponsiveness suggests, total Her at *6 least, very a the callous indifference of her APPENDIX II obligations clients, ethical her toward No. 87-252 Board, the and the Court. In the Matter importantly, of: More has com- year piled history discipli- a five with the case, nary system. public In the censure of A Bar of the District of the Member engaged neglect during in the Appeals of Court Columbia period 1981-82. In the instant Re- case BRIEF BAR COUNSEL’S neglect spondent’s bеgan in 1982 con- brief respectfully files this 1985, until March the tinued when Court response letter to counsel in to the directed ordered her removal as of an re- August 28, with legit- under date of Her failure to estate. It is matter. inquiries spect of occurred in the above-numbered imate Bar Counsel the Respondent’s 1986. In of address requested 1985 and view that Bar Counsel significant of 1- period conduct over a time— Disciplinary question of whether failurе learn apparent notice, combined with 102(A)(5) adequate to satis- provides past period from substantial mistakes—a demands, failure fy process due that suspension is of warranted. cooperate Bar Counsel to or proceeding is conduct during discipline view, suspension In the Board’s of six justice. of prejudicial to the administration discipline is im- months consistent with that, gener- as a Bar Counsel submits both for similar in other pоsed behavior cases facts of this proposition and under the Lieber, al jurisdiction. In 442 A.2d In re case, (D.C.1982), process has been satisfied Court ordered a six due 153 the 342
(holding that
“prejudicial”
word
sufficient-
degree
ly defines
of conduct which is ex-
finding
the court
sustain
of
should
the
the
pected of
attorney).
Board
on Professional
that
Respondent engaged in
prejudicial
conduct
Minnesota,
In
procedure
of
spe-
rules
justicе.
of
administration
cifically impose
duty
cooperation
of
impermissibly respondents
criminal statute
in disciplinary proceedings.
vague
give
if
person
it fails
of ordi-
challenged
The rule was
Charges
In re
nary intelligence
particular
fair notice that
N.P.,
Unprof.
against
Cond.
361 N.W.
of
contemplated
conduct is
forbidden
(Minn.),appeal dismissed,
2d 386
474 U.S.
Harriss,
rule. United
v.
347 U.S.
States
(1985).
106 S.Ct.
Assistant Bar Counsel her failure prosecution result could cooperate
failure to with Bar Counsel.3
(BX 17).
Thus, requirements of fair notice and
warning prior pro- satisfied are
nouncements of this court as the as well provided Respondent prior
actual notice disciplinary proceed- institution of
ings. The disciplinary rule previously has challenge vagueness.
withstood as void for finding by the Board on Professional
Responsibility that this Respondent en-
gaged in to the adminis- justice by failing
tration of cooperate supported
with Bar substan- D.C.App.
tial evidence of record. XI 7(3). Accordingly, this ac- court should
§
cept the findings uphold of fact
violation found. submitted,
Respectfully Henderson, Thos. H. Jr.
/s/
Thomas H. Henderson, Jr.
/s/ Michael S. Frisch
Michael S. Frisch
Assistant Bar Counsel
Office *8 Street,
515 Fifth N.W. A,
Building Room 127
Washington, D.C. 20001
Telephone: 638-1501 present accepted into does the issue of whether 2. BX refers to the bar 3. The case exhibits Respondent is notice hearing actual evidence at the held on Washing- find order to the violation. Cf. ton,