In Re Asher

772 A.2d 1161, 2001 D.C. App. LEXIS 117, 2001 WL 543691
CourtDistrict of Columbia Court of Appeals
DecidedMay 24, 2001
Docket00-BG-765
StatusPublished
Cited by8 cases

This text of 772 A.2d 1161 (In Re Asher) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Asher, 772 A.2d 1161, 2001 D.C. App. LEXIS 117, 2001 WL 543691 (D.C. 2001).

Opinion

WAGNER, Chief Judge:

The Board on Professional Responsibility (Board) recommended that respondent, Chris Asher, be disbarred for misappropriating client and third-party funds and for other multiple violations of the Rules of Professional Conduct. Respondent’s principal argument is that he was denied due process because the hearing was held in his absence. He also challenges the factual findings and legal conclusions of the Board. From the record of the proceedings, we conclude that respondent was given notice and an opportunity to appear at the hearing and defend, but he failed to do so. Further, we hold that the Board’s findings are supported by the record and that the recommended sanction is appropriate; therefore, we adopt the recommendation.

I. Procedural Background

A. Factual Summary

Bar Counsel filed a Specification of Charges against respondent on December 23, 1998 alleging that he violated multiple provisions of the Rules of Professional Conduct, including misappropriation of client funds. A special process server made several attempts to serve respondent with a copy of the petition and Specification of Charges at his home during January and February, 1999. When the process server attempted to serve him on February 2, 1999, respondent denied that he was Chris Asher. Finally, on March 12, 1999, the process server, who recognized respondent as the same man he had encountered on February 2nd, served respondent at his office in the District of Columbia. After the affidavit of service was filed, the Board scheduled the hearing for May 17,1999 and directed Bar Counsel and respondent to file their proposed exhibits by May 7, 1999. Bar Counsel filed and hand-delivered to respondent copies of Bar Counsel’s proposed exhibits. Respondent never filed or served any proposed exhibits, and he never filed an answer to the Specification of Charges.

The Chair of the Hearing Committee (Chair) for the proceeding scheduled a pre-hearing conference for May 3rd. Since the Board was unable to reach respondent by telephone, the date was changed to May 5th, and the Board noti *1164 fied respondent via facsimile transmission. Respondent failed to answer or participate, and the Chair entered an order scheduling the hearing for May 17th, unless respondent filed a motion showing good cause for a continuance. The order also provided that because of respondent’s failure to answer and participate at the pre-hearing, “any such motion [for continuance] shall be supported by an affidavit attesting to respondent’s inability to proceed with the hearing on May 17th; and that any alleged disability shall entitle Bar Counsel to request an independent medical examination of Respondent.” Respondent sent a letter to the Board indicating that he was experiencing “excruciating pain in [his] chest, neck, and entire left side of [his] body.” The request was not supported by affidavit as required by the Order. Bar Counsel filed a response indicating that he had no objection to a continuance with the conditions that respondent make himself available for an independent medical examination by a physician selected by Bar Counsel and agree to an interim suspension pursuant to D.C.App. R. XI, § 18(c) (suspension of incapacitated attorneys). By Order dated May 20, 1999, the Chair continued the hearing to June 30 and July 1, 1999, with the proviso that no further extensions would be granted unless respondent and Bar Counsel agreed, or the Court found that respondent was unable to attend.

Between May 20, 1999 and the hearing date of June 30, 1999, the Board and Bar Counsel sent numerous letters to respondent and made several attempts to contact him. By letter dated June 28, 1999, respondent requested a further continuance “until such time as [he was] declared fit by [his] doctors.” Respondent attached a letter from Dr. Morton Altschuler, stating that respondent “continues to complain of neck pain with radiation to the left arm and shoulder,” and that he had been referred to a neurologist. Dr. Altschuler also indicated that he had recommended that respondent take a leave of absence until his tests and treatment were completed. Respondent called and informed the Board that he would not make himself available to participate by telephone in a pre-hearing conference on June 29, 1999, and that he would not attend the hearing on June 30, 1999. Respondent declined to provide a telephone number where he could be reached, and he did not appear at the hearing on June 30,1999. Respondent traveled to London on July 3, 1999. The Hearing Committee proceeded with the hearing in his absence. Bar Counsel called ten witnesses and offered Bar Exhibits A-C and 1-40, all of which were admitted into evidence. On December 23, 1999, the Hearing Committee issued its report. The Hearing Committee found that respondent had engaged in the misconduct charged and concluded that the nature and extent of his misconduct warranted disbarment.

Respondent filed exceptions to the Hearing Committee’s report, and the parties submitted briefs to the Board. The Board found that the Hearing Committee’s factual findings were supported by the evidence and agreed with its conclusions and recommended sanction. Respondent filed exceptions to the Board’s report and recommended sanction.

B. Respondent’s Due Process Challenge

Respondent argues that he was denied due process in that the hearing was held in his absence in spite of his known medical condition which precluded his attendance. Thus, he contends, he was deprived of a fair hearing and the right to confront and cross examine the witnesses against him. Bar Counsel responds that respondent had an opportunity to appear *1165 and contest the charges and to have the case continued a second time, if he provided evidence of the alleged disabling condition which precluded his attendance.

“The ‘right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951)). Fundamental requirements of due process are notice and an adequate opportunity to appear and contest charges. Id. (citations omitted); In re Shieh, 738 A.2d 814, 816-17 (D.C.1999); Jerome Mgmt. v. District of Columbia Rental Hous. Comm’n, 682 A.2d 178, 183 (D.C.1996). While respondent disputes the circumstances surrounding the process server’s unsuccessful efforts to serve him initially, he does not dispute that the process server served him with a copy of the petition and Specification of Charges on March 12, 1999. His due process challenge centers upon the denial of his request for a continuance of the hearing which proceeded in his absence.

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Bluebook (online)
772 A.2d 1161, 2001 D.C. App. LEXIS 117, 2001 WL 543691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-asher-dc-2001.