Washington Lawyer

Bar Counsel's Page: Criminal Contempt, Disciplinary Style

From Washington Lawyer, February 2001

By Joyce E. Peters

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Like the Board on Professional Responsibility, created by Rule XI of the District of Columbia Court of Appeals Rules Governing the Bar, the position of Bar Counsel is also a creation of that same judicial rule. As the court noted in In re Stanton, 757 A.2d 87, 91 (D.C. 2000), the "court created the Board in the exercise of its inherent authority over members of the legal profession practicing in the District. . . . One of the functions of the board is to conduct the fact-finding necessary to our evaluation of disciplinary matters." Unlike the board, however, Bar Counsel is appointed by the Board on Professional Responsibility subject to the court’s oversight authority, to serve as investigator and prosecutor in cases involving attorney misconduct. Thus, both the board and Bar Counsel are special creations of the judiciary and occupy unique positions within the District of Columbia.

Under section 6 of Rule XI, Bar Counsel is charged with investigating all matters involving alleged misconduct by an attorney subject to the court’s disciplinary jurisdiction, prosecuting those matters or resolving them with something less (if appropriate), maintaining the permanent records of disciplinary cases, reporting to the court any attorneys convicted of crimes or subjected to discipline in other jurisdictions, and providing information to the court at regular intervals concerning informal admonitions by Bar Counsel or reprimands by the Board on Professional Responsibility about which the court would otherwise be unaware.

In most cases allegations of misconduct or incapacity involving attorneys licensed in the District of Columbia are resolved after a thorough investigation by Bar Counsel followed by some sort of disposition: dismissal, diversion, informal admonition, or a petition initiating a formal disciplinary action. Bar Counsel, serving as investigator and advocate on behalf of the community and the profession, assists the court through the board in arriving at an appropriate disposition for each allegation of attorney misconduct. In many cases that disposition may be a dismissal, if the complaint is unfounded, or a diversion, if, as discussed in the last Bar Counsel column in December 2000, the misconduct is minor and meets the criteria to give the lawyer a second chance. Neither of these results in any record of discipline in the Office of Bar Counsel.

In other cases informal admonitions or petitions are initiated when formal discipline is warranted. Sometimes, however, there are unusual cases in which Bar Counsel assumes a more classic prosecutorial role, and actually prosecutes an attorney for criminal contempt for misconduct related to the court’s disciplinary jurisdiction. Note that it is Bar Counsel, not corporation counsel or the U.S. attorney, who prosecutes these cases. These cases are infrequent but necessary to assist the court when a lawyer who has been suspended or disbarred continues to practice law when no longer authorized to do so.

Although these prosecutions don’t often happen, the Court of Appeals recently reviewed just such a case in In re Richardson, 759 A.2d 649 (D.C. 2000), petition for reh’g en banc denied (Dec. 15, 2000), which was reported in The Washington Lawyer in December 2000. In Richardson the attorney had been suspended on an interim basis from the District of Columbia Bar as the result of his resignation from the Florida Bar while disciplinary proceedings there were pending. In re Richardson, No. 95-BG-639 (D.C. June 27, 1995). The interim suspension was entered to allow the Board on Professional Responsibility an opportunity to review the Florida action to determine if reciprocal discipline in the District of Columbia, based on the Florida matter, was appropriate. See D.C. Bar Rule XI, § 11(d). Ultimately, the D.C. Court of Appeals imposed a three-year suspension and a requirement to demonstrate fitness prior to reinstatement as final discipline on the attorney. In re Richardson, 692 A.2d 427, 428 (D.C. 1997), cert. denied, 522 U.S. 1118 (1998).

Bar Counsel, however, discovered that the attorney had continued to practice law after the Court of Appeals had entered its interim suspension order. So, Bar Counsel initiated a criminal contempt action pursuant to D.C. Code § 11-741(a), which permits a single judge to "punish for disobedience of an order."

No longer simply a "quasi-criminal proceeding," as disciplinary proceedings are characterized, this was indeed a criminal prosecution of the attorney for his unauthorized practice of law in contempt of the Court of Appeals’ disciplinary orders. Pursuant to Rule XI, § 1(a), the disciplinary jurisdiction of the Court of Appeals and the Board on Professional Responsibility continues to extend to attorneys who are "suspended or disbarred."

The prosecution authority of Bar Counsel is distinct from the authority of the court’s Committee on Unauthorized Practice of Law, which handles cases of unauthorized practice by individuals not yet admitted to practice law in the District of Columbia. Bar Counsel’s authority is tied to its disciplinary responsibilities, and the Court of Appeals has approved the procedure by which Bar Counsel initiates and prosecutes suspended or disbarred lawyers by initiating proceedings for criminal contempt. In re Burton, 614 A.2d 46 (D.C. 1992).

In Burton the Court of Appeals stated:

We conclude that Bar Counsel, in keeping with this mandate to investigate misconduct by attorneys [referring back to the authority given to Bar Counsel by Rule XI, § 6], including disbarred attorneys, may properly petition this court for contempt proceedings involving an attorney disbarred by the court but who allegedly continues to practice law in the District of Columbia.

614 A.2d 46, 49-50. Burton had been disbarred in 1984. In March 1989 Bar Counsel petitioned the court for an order to show cause why he should not be held in contempt of court for violation of the disbarment order.

Bar Counsel alleged that Burton had held himself out as an attorney and practiced law in the District of Columbia through his participation in an employment discrimination suit filed on behalf of a client in the U.S. District Court for the District of Columbia. Bar Counsel initiated the criminal contempt action pursuant to D.C. Code § 11-741(a), which permits a single judge to "punish for disobedience of an order." Pursuant to D.C. Code § 11-707(a), the court designated a judge of the Superior Court as a member of the Court of Appeals to determine, after hearing, whether Burton should be held in contempt. After a three-day evidentiary hearing, at which Burton was afforded a full opportunity to present evidence and cross-examine witnesses, the judge issued a memorandum and order setting forth his findings of fact and conclusions of law.

The judge was persuaded beyond a reasonable doubt, by the evidence, that Burton had knowingly and intentionally taken responsibility for handling the client’s employment discrimination case in federal court and had held himself out to the client as a practicing attorney. The judge found that, by his actions and representations, Burton had engaged in the unauthorized practice of law within the meaning of Rule 49 of the Rules of the Court of Appeals.

In seeking review of the decision of the single judge, Burton raised a variety of issues. He questioned the authority of Bar Counsel to initiate and prosecute proceedings for contempt against a person allegedly engaged in the unauthorized practice of law, contending that Rule 49 expressly commits the decision whether to initiate such proceedings to the court’s Committee on Unauthorized Practice of Law. The court rejected the argument, holding that Bar Counsel is appointed by the board and empowered to investigate all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of the court. Such authority extends to a failure by a suspended or disbarred attorney to refrain from the practice of law in the District of Columbia unless and until reinstated.

Further, Burton challenged the alleged severity of the sentence imposed. The single judge had imposed a sentence of unsupervised probation for a period of three years. The court likewise rejected Burton’s challenge to the alleged severity of the sentence.

Although the Burton case involved a disbarred attorney, a similar result was reached in the more recent Richardson case involving a suspended, rather than a disbarred, attorney. In Richardson the court cited Burton, approving the process, and noted that Richardson’s contempt conviction was based "not only on his practicing law after he had been suspended, but on his violation of the court’s order to comply with Rule XI, § 14(c), which required that he promptly notify his clients of the suspension." 759 A.2d at 653.

Thus, the unique relationship that Bar Counsel has in the disciplinary process as investigator of allegations of attorney misconduct makes Bar Counsel well suited to initiate criminal contempt actions. In effect, Bar Counsel’s petitions provide the Court of Appeals an opportunity and a formal process by which to consider the unusual case in which an attorney may fail to abide by the court’s suspension or disbarment orders, which, as the court noted in Richardson, may involve orders to notify clients as well as orders not to practice law. Bar Counsel provides the basis upon which the court may then exercise its plenary jurisdiction over the lawyers licensed here. Bar Counsel simply makes that process more orderly. In the final analysis, the Court of Appeals determines the result.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Robert Greg Bailey. September 28, 2000. In a reciprocal matter from Missouri, the court publicly censured Bailey. Bailey was publicly reprimanded by the United States Court of Appeals for Veterans Claims, where he was appointed pro hac vice to represent a client pro bono, for neglecting the client’s case, failing to communicate with the client, and failing to respond to the court’s disciplining body. The Missouri court, in turn, issued him a public reprimand, the functional equivalent in this jurisdiction to a public censure.

In re Deloris A. Brown. November 13, 2000. In a reciprocal matter from Hawaii, where Brown was suspended for one year with all but 60 days suspended, followed by two years’ probation, the court suspended her and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Cornell D. M. Judge Cornish. November 16, 2000. The court reinstated Cornish. On March 27, 1997, in a reciprocal matter from Maryland, where Cornish had been placed on inactive status by consent based upon a claim of disability, the court suspended him indefinitely, nunc pro tunc to July 29, 1996, with leave to seek reinstatement after one year. Cornish has not been reinstated in Maryland.

In re Paul T. Demos. October 10, 2000. In a reciprocal matter from Arizona, where Demos’s license was revoked, the court suspended him and directed the Board on Profes-sional Responsibility to determine the nature of the final discipline to be imposed.

In re Jonathan J. Ezer. November 13, 2000. In a reciprocal matter from Hawaii, where Ezer submitted his resignation in lieu of discipline, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re William E. Fredenberger. October 5, 2000. The court disbarred Fredenberger on consent.

In re Larry S. Greenberg. November 16, 2000. In a reciprocal matter from Maryland, the court publicly censured Greenberg. Greenberg consented to a public reprimand, the functional equivalent in Maryland of a public censure in this jurisdiction, for neglect and failure to communicate with a client.

In re Brian P. Hanchey. November 2, 2000. In a reciprocal matter from Virginia, the court disbarred Hanchey. The Virginia court revoked Hanchey’s license when he resigned while disciplinary charges were pending against him.

In re Mykel Hitselberger. October 26, 2000. In a reciprocal matter from Maryland, the court suspended Hitselberger for 60 days, with the requirement that he demonstrate fitness to practice law prior to reinstatement. The Maryland court suspended him indefinitely for lack of competence and diligence, failure to communicate with a client, and engaging in conduct that violates the Rules of Professional Conduct in connection with employment and guardianship matters, and failure to cooperate with the Maryland disciplinary authority.

In re Steven H. Hofberg. October 30, 2000. In a reciprocal matter from Maryland, where Hofberg was disbarred, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Bernard M. Mogil. November 16, 2000. In a reciprocal matter from New York, where Mogil was disbarred, the court disbarred him, nunc pro tunc to September 22, 1997. Mogil, while a judge in a New York court, sent numerous anonymous, threatening communications to an attorney, distributed a statement at a bar association dinner warning attorneys of the consequences of complaining against a judge, made false representations to local police and to judicial authorities, and gave false testimony under oath in a judicial conduct proceeding. The New York court found that his actions constituted conduct adversely reflecting on his fitness to practice law and conduct involving dishonesty.

In re Bruce E. Perweiler. November 2, 2000. In a reciprocal matter from Maryland, the court suspended Perweiler for six months, with the requirement that he demonstrate fitness to practice law prior to reinstatement. The Maryland court suspended Perweiler indefinitely for mishandling client funds, engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failing to provide competent representation, to represent clients diligently, or to return client funds and unearned fees after the representation ended.

In re Obie Pinckney Jr. September 28, 2000. In a reciprocal matter from Maryland, the court suspended Pinckney for one year, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Pinckney consented to an indefinite suspension in Maryland, with leave to apply for reinstatement after one year, while a disciplinary complaint was pending against him alleging that he had commingled client funds with his own and failed to maintain client finds in a trust account.

In re Arnold B. Schweizer. November 16, 2000. In a reciprocal matter from Maryland, the court suspended Schweizer for six months. Schweizer consented to a 60-day suspension in Maryland while disciplinary charges were pending against him charging him with negligent misappropriation of funds entrusted to him to pay costs and commingling entrusted funds with his own. The board declined to recommend a sanction identical to that imposed in Maryland, concluding that the appropriate sanction in this jurisdiction is a six-month suspension. Schweizer was reinstated in Maryland on October 18, 1999.

In re Russell G. Small. October 12, 2000. The court suspended Small for three years, nunc pro tunc to January 24, 1994, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Small was involved in an accident in which his passenger was killed while he was driving under the influence of alcohol and on a suspended license. He was convicted in the New York State Supreme Court of the felony of negligent homicide and the traffic violation of operating a motor vehicle while impaired. At the time of the accident, his application for admission to the District of Columbia Bar was pending but he never advised the admissions committee of his arrest following the accident. The Board on Professional Responsibility concluded that his actions constituted a criminal act that reflected adversely on his fitness as a lawyer and, in connection with his admissions application, a failure to disclose a fact necessary to correct a misapprehension that he knew to have arisen in the matter or to respond reasonably to a demand for information from the admissions committee.

In re Andrew M. Steinberg. November 2, 2000. The court suspended Steinberg for 30 days for engaging in conduct that seriously interfered with the administration of justice and for failing to respond to Bar Counsel’s inquiry or to comply with a board order compelling his response.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet/opinionlocator.jsf. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.