Matter of Colson

412 A.2d 1160, 1979 D.C. App. LEXIS 543

• Court: District of Columbia Court of Appeals
• Decided: July 3, 1979
• Docket: S-24-74/D-27-78
• Status: Published

Opinions

KELLY, Associate Judge:

On June 3, 1974, respondent Charles W. Colson, former White House Aide and Special Counsel to then President Richard M. Nixon, pleaded guilty before Judge Gerhard Gesell of the United States District Court for the District of Columbia to a violation of 18 U.S.C. § 1503 (1970), a felony.¹ Respondent was subsequently sentenced to a prison term of one to three years and fined $5,000.² Upon receipt of a certificate of his conviction, this court by an order dated June 28, 1974, suspended respondent from the practice of law pursuant to D.C.App. R. XI, Sec. 15(1).³ The matter was then referred to the Disciplinary Board⁴ where formal proceedings were instituted before a hearing committee. The hearing committee unanimously recommended to The Board that respondent be disbarred. A majority of four members of The Board voted instead to suspend respondent for a period of five years. The three dissenting members voted for disbarment. Thereafter, this court denied the motions of respondent and Bar Counsel to dispense with argument and the filing of briefs and appointed amicus curiae to advocate the view of the minority members of The Board before the en banc court. See Amended D.C.App. R. XI, Sec. 8.

The information to which respondent pleaded guilty charged that, while serving as Special Counsel to the President of the United States, respondent:

On or about June 28, 1971, and for a period of time thereafter, in the District of Columbia and elsewhere . . . unlawfully, willfully and knowingly did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with the criminal trial of Daniel Ellsberg under indictment in the case of United States v. Russo, Criminal Case No. 9373, United States District Court, Central District of California, by devising and implementing a scheme to defame and destroy the public image and credibility of Daniel Ellsberg and those engaged in the legal defense of Daniel Ellsberg, with the intent to influence, obstruct, and impede the conduct and outcome of the criminal prosecution then being conducted in the United States District Court for the Central District of California.

The aforesaid scheme by which CHARLES W. COLSON, the DEFENDANT, unlawfully, willfully and knowingly did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with the criminal prosecution of Daniel Ellsberg consisted of the following acts:

(1) In July and August 1971, the DEFENDANT and others unnamed herein, endeavored to and did release defamatory and derogatory allegations concerning one of the attorneys engaged in the legal defense of Daniel Ellsberg for the purpose of publicly disseminating said allegations, the known and probable consequences of which would be to influence, obstruct, and impede the conduct and outcome of the criminal prosecution of Daniel Ellsberg.

(2) In July and August 1971, the DEFENDANT, and others unnamed herein, endeavored to obtain, receive and release confidential and derogatory information concerning Daniel Ellsberg, including information from the psychiatric files of Daniel Ellsberg, for the purpose of publicly disseminating said information, the known and probable consequences of which would be to influence, obstruct, and impede the conduct and outcome of the criminal prosecution of Daniel Ells-berg.⁵

More specifically, the evidence presented before the hearing committee indicates that the release to the public of the “Pentagon Papers” by Daniel Ellsberg in June 1971, aroused the intense anger and concern of President Nixon. The President stated to respondent that he wanted the leaks of sensitive information stopped no matter what the cost. Respondent was instructed to encourage congressional hearings, and to disseminate material to the news media that would “expose” Ellsberg and his motives. Respondent undertook the assignment willingly.⁶

The Board found respondent’s conduct to have explicitly violated Disciplinary Rules 1-102(A)(3) and 1-102(A)(5).⁷ Having concluded that the offense here involved moral turpitude, see Disciplinary Rule 1— 102(A)(3), The Board recommended respondent’s suspension from the bar of this court. Because of legislative fiat, however, we are precluded from adopting The Board’s recommendation.

D.C.Code 1973, § ll-2503(a) provides:

When a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude, and a certified copy of the conviction is presented to the court, the court shall, pending final determination of an appeal from the conviction, suspend the member of the bar from practice. Upon reversal of the conviction the court may vacate or modify the suspension. If a final judgment of conviction is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and he shall thereafter cease to be a member. Upon the granting of a pardon to a member so convicted, the court may vacate or modify the order of disbarment. [Emphasis supplied.]

A valid guilty plea acts as both a conviction of the offense charged and as an admission of all material facts alleged by the government. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Curtis v. United States, D.C. App., 268 A.2d 603 (1970). Hence respondent’s conviction became final as soon as Judge Gesell sentenced him upon his plea. The finality of the conviction coupled with The Board’s finding of moral turpitude requires the disbarment of respondent as mandated by the clear language of the statute.

To be sure, the statute is mandatory in its terms. Laughlin v. United States, 154 U.S.App.D.C. 196, 199 n.3, 474 F.2d 444, 447 n.3 (1972), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1973). Yet, there has been some concern expressed as to whether such legislation can be reconciled with the due process rights of the attorney in question. It is elementary that a fundamental requirement of due process is notice that apprises the interested parties of the pendency of the action and affords them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The same principles apply to disbarment proceedings. In re Ruff alo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866); In re Wild, D.C.App., 361 A.2d 182, 184 (1976).

The notice requirement is fully satisfied in a case such as this by the language of this court’s order of suspension which precedes the action before The Board, and the filing of a Petition Instituting Formal Disciplinary Proceedings with The Board. The suspension order here was the standard order issued by this court pursuant to D.C. App. R. XI, Sec. 15, and stated, inter alia, that respondent’s suspension was to “remain in effect pending further order of this Court following final disposition of the disciplinary proceeding to be commenced by the Disciplinary Board.”

As provided in amended D.C.App. R. XI, Sec. 7(2) (and as was done in the instant case), Bar Counsel institutes formal disciplinary proceedings “by the filing of a petition with the Board . . . which shall be sufficiently clear and specific to inform the respondent of the alleged misconduct. A copy of the petition shall be served upon the respondent.”

As for the attorney’s opportunity to be heard, D.C.Code 1973, § ll-2503(a) in effect makes such a hearing necessary. Even though the statutory language is mandatory in nature, a determination must be made as to whether the offense giving rise to the conviction involved moral turpitude. However, a distinction must be drawn here between offenses which manifestly involve moral turpitude by virtue of their underlying elements, and those which do not. An attorney is subject to disbarment under the statute for his conviction of a crime involving moral turpitude, not for his commission of an act involving moral turpitude. The threshold focus of the statute, then, is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense. The Board, therefore, must make an initial determination as to whether the attorney’s crime inherently involves moral turpitude. If The Board decides that it does, that is the end of the inquiry; The Board must recommend disbarment.

If the particular crime at issue has not been considered by this court, then the attorney may brief and argue the moral turpitude question at the hearing before The Board. Once, however, we have made a final determination that a crime involves moral turpitude, The Board must adhere to that ruling, with the result that the hearing at The Board level shall be limited to the question whether the certificate of conviction used in this court’s order of suspension (or otherwise provided to The Board) establishes that the attorney, in fact, has been convicted of the crime charged.⁸

In this case, while The Board found respondent guilty of a crime of moral turpitude, The Board considered the circumstances of the transgression in addition to the inherent nature of the crime. Although it is possible that some — if not many— crimes, on their face, will not be susceptible of a determination that they do, or do not, involve moral turpitude per se, we find no difficulty in concluding that the obstruction of justice offense set forth in 18 U.S.C. § 1503 (1970) is inherently an offense involving moral turpitude. See Laughlin v. United States, supra; In re Brown, 197 S.E.2d 814 (W.Va.1973); In re Kahn, 38 A.D.2d 115, 328 N.Y.S.2d 87, aff’d, 31 N.Y.2d 752, 338 N.Y.S.2d 434, 290 N.E.2d 435 (1972); In re Barron, 155 W.Va. 98, 181 S.E.2d 273 (1971).⁹ Therefore, in the instant case, the need for the extensive hearing before the hearing committee and The Board was obviated by the nature of the offense to which respondent pleaded guilty. The only proper recommendation for The Board to make under the circumstances was that respondent be disbarred. See D.C. Code 1973, § ll-2503(a).¹⁰

On the other hand, where an attorney stands convicted of a crime which according to The Board’s initial determination does not inherently involve moral turpitude, a full hearing becomes necessary. In such cases, both the hearing committee and The Board should explore the question by hearing testimony in addition to argument from Bar Counsel and respondent.

To summarize, D.C.Code 1973, § 11-2503 provides that a member of the bar shall be suspended from practice by this court upon our receipt of a certified copy of the conviction of an offense involving moral turpitude. This court has promulgated rules which elaborate on this preliminary or pendente lite suspension procedure. See D.C.App. R. XI, Sec. 15.¹¹ For purposes of this pendente lite suspension, this court summarily determines whether the crime in question fits within the definition of “serious crime” as set forth in D.C.App. R. XI, Sec. 15(2). If we find that it does, we will order the attorney’s suspension.¹² This preliminary suspension is to remain in effect pending final determination of an appeal from the conviction. Upon reversal of the conviction, this court may modify the suspension within its discretion. Moreover, upon good cause shown, we may set aside the suspension order when it appears that the interest of justice so requires. See Amended D.C.App. R. XI, Sec. 15(1).¹³

After entering the suspension order, the matter is referred to The Board for the institution of a formal proceeding before a hearing committee to determine the nature of the final discipline to be imposed.¹⁴ Although the procedure before The Board is set out in Amended D.C.App. R. XI, Sec. 7¹⁵ (former D.C.App. R. XI, Sec. 8), in a ease such as this where the respondent has been convicted of a crime, the only question before the hearing committee and The Board is whether the offense involved moral turpitude. And, only in a disciplinary proceeding based upon the conviction of a crime, where the nature of the crime is not such as plainly and unquestionably offends the generally accepted moral code, must evidence as to the circumstances of the crime including the actor’s knowledge and intention be admitted. Such evidence is admissible even though respondent has pleaded guilty; and likewise, evidence is admissible as to the circumstances under which such plea was entered. This evidence is to be considered solely with reference to the issue of moral turpitude, not for the purpose of arguing the validity of the criminal conviction. Thus, we are not suggesting that a respondent may re-try his criminal case before The Board. Indeed, it is well settled that an attorney cannot collaterally attack a conviction in subsequent disbarment proceedings, and the record of the conviction is taken as conclusive proof that the attorney did the underlying acts which constitute the crime. Laughlin v. United States, supra 154 U.S.App.D.C. at 206, 474 F.2d at 454; In re Braver man, 148 F.Supp. 56 (D.Md.1957); In re Tinkoff, 101 F.2d 341 (7th Cir. 1938), cert. denied, 308 U.S. 552, 60 S.Ct. 99, 84 L.Ed. 464 (1939). See Duggan v. State Bar of California, 17 Cal.3d 416, 130 Cal.Rptr. 715, 551 P.2d 19 (1976); Maryland State Bar v. Hirsch, 274 Md. 368, 335 A.2d 108, cert. denied, 422 U.S. 1012, 95 S.Ct. 2638, 45 L.Ed.2d 676 (1975). See also D.C.App. R. XI, Sec. 15(3).

The term “moral turpitude” has less than a finite definition. We therefore set out a model to assist The Board in disposing of those cases where such a hearing is necessary. If a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind. The definition of “moral turpitude” given in 2 Bouv. Law Dictionary 2247 (Rawle’s Third Revision), is as follows:

An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

And, Black’s Law Dictionary 1160 (4th ed. 1951), adds that moral turpitude is “[c]on-duct contrary to justice, honesty, modesty, or good morals.” These are precisely the definitions which have been used by the courts in defining “moral turpitude” in disbarment proceedings. See, e. g., In re West, 155 W.Va. 648, 186 S.E.2d 776, 777 (1972); Calzada v. Sinclair, 6 Cal.App.3d 903, 86 Cal.Rptr. 387 (1970); In re Carr, 377 Ill. 140, 36 N.E.2d 243 (1941); State ex rel. Conklin v. Buckingham, 59 Nev. 36, 84 P.2d 49 (1938); In re Barios, 13 F.2d 138 (D.Neb. 1926); In re Henry, 15 Idaho 755, 99 P. 1054 (1909).

Respondent Colson spent considerable time arguing before the hearing committee and the Disciplinary Board in mitigation of his guilty plea and the conduct which was outlined in the information. As we have stated, this procedure was unnecessary. Since the crime to which respondent pleaded guilty is one which inherently involves moral turpitude, we are compelled, by virtue of the statute, to order his name stricken from the roll of the members of the bar of this court. See D.C.Code 1973, § 11— 2503(a).

The effective date of respondent’s disbarment shall be June 28, 1974, which was the date of his suspension from the bar of this court pursuant to D.C.App. R. XI, Sec. 15.

So ordered.

APPENDIX

WATERGATE SPECIAL PROSECUTION FORCE

United States Department of Justice

1425 K Street, N.W.

Washington, D.C. 20005

May 31,1974

David I. Shapiro, Esq.

Dickstein, Shapiro & Morin 1735 New York Avenue, N.W.

Washington, D.C. 20006

Dear Mr. Shapiro:

On the understandings specified below, the United States will accept a guilty plea from your client, Charles W. Colson, to a one-count information charging him with obstructing justice in connection with the criminal prosecution of Daniel Ellsberg, in violation of Title 18, United States Code, Section 1503. This will dispose of all pending charges in the cases of United States v. Ehrlichman, et al., Criminal No. 74-116, and United States v. Mitchell, et al., Criminal No. 74-110. It will also dispose of all potential charges against your client which might otherwise arise out of those matters which are or have been under active investigation by the Watergate Special Prosecution Force.

This disposition is predicated on the understanding that the United States will move for leave to file a dismissal of all pending charges against Mr. Colson as set forth in the indictment filed March 1, 1974, Criminal No. 74-110, charging Mr. Colson, among others, with conspiracy and obstructing justice, and the indictment filed March 7, 1974, Criminal No. 74-116, charging Mr. Colson, among others, with conspiracy against rights of citizens. This disposition will not bar prosecution for any false or misleading testimony given hereafter.

This understanding is also predicated upon the fact that Mr. Colson will immediately provide statements under oath and will produce all relevant documents in his possession upon the request of the Watergate Special Prosecution Force. He may be required to testify as a witness for the United States in any and all cases with respect to which he may have relevant information.

The United States will make no recommedation concerning Mr. Colson’s sentencing but will bring to the attention of the probation authorities and the Court information concerning Mr. Colson relating to. those cases in which Mr. Colson is presently charged. The United States will join with you in urging that Mr. Colson be permitted to remain on recognizance pending sentencing. The United States, if requested, will provide to any investigative, disciplinary or fact-finding body information concerning Mr. Colson.

Sincerely,

LEON JAWORSKI

Special Prosecutor

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK and FERREN, Associate Judges, and YEAGLEY, Associate Judge, Retired.

*

The majority opinion for the en banc court disbarring respondent Colson was issued on March 23, 1979. The first footnote to that opinion stated:

Associate Judges NEBEKER and HARRIS reserve the right to file a statement of dissenting views at a later date. In the event a dissenting opinion is filed, the judges who concur in the majority opinion reserve the right to file separate statements of their views at a later date. [412 A.2d at 1161.]

Consistent with the first sentence of that footnote, the following separate opinion is issued.

1 . 18 U.S.C. § 1503 (1970) proscribes obstruction of justice and provides:

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States magistrate or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, magistrate, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

2 .On June 25, 1974, based upon his conviction, respondent was disbarred in the United States District Court for the District of Columbia. Disciplinary proceedings were also commenced against respondent in Massachusetts and Virginia. On January 20, 1975, the Supreme Court of Virginia entered an order disbarring Mr. Colson; on November 4, 1975, the Supreme Judicial Court for the Commonwealth of Massachusetts issued an opinion and order suspending respondent indefinitely from the practice of law.

3 . The Rules of this court governing the Bar of the District of Columbia were amended on January 12, 1978, during the pendency of this proceeding. Rules cited herein which are not identified as “former” or “amended” have remained essentially unchanged.

Former Section 15 — Attorneys Convicted of Serious Crimes

(1) Upon the filing with the court of a certificate demonstrating that an attorney has been convicted of a serious crime as hereinafter defined, the court shall enter an order immediately suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.

4 . Amended D.C.App. R. XI, Sec. 4, redesignates the Disciplinary Board as the Board on Professional Responsibility. The amendments to this section expand the number of members to nine, provide for non-lawyer members, and reestablish what shall constitute a quorum for certain matters. The Board’s function remains basically unchanged, however. For the purpose of simplicity we refer to this body as “The Board” throughout the remainder of this opinion.

5 .In consideration of respondent’s plea to this information, the Watergate Special Prosecutor, Leon Jaworski, indicated his willingness to dismiss two felony indictments then pending against respondent in the cases of United States v. Ehrlichman, et al., and United States v. Mitchell, et al. The former case grew out of the warrantless break in and search by agents of the Executive Branch of the offices of Dr. Louis Fielding for the purpose of securing the medical records of one of his patients, Daniel Ellsberg. See United States v. Ehrlichman, 178 U.S.App.D.C. 144, 546 F.2d 910 (1976), cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 570 (1977). The latter case originally charged seven individuals with conspiracy, obstruction of justice, and various instances of false statements made to the Federal Bureau of Investigation, to the grand jury, and to the Senate Select Committee on Presidential Campaign Activities. These charges arose from the alleged cover-up in the “Watergate” affair. See United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Jaworski’s letter which explicates the plea bargain is attached as an appendix to this opinion.

6 . Report of the Hearing Committee to the Disciplinary Board, Findings of Fact at 5.

7 . Disciplinary Rule 1-102(A)(3) and (5) provide:

Misconduct.

(A) A lawyer shall not:

* * * * * *

(3) Engage in illegal conduct involving moral turpitude that adversely reflects on his fitness to practice law.

******

(5) Engage in conduct that is prejudicial to the administration of justice.

8 . In a situation where the moral turpitude issue has been decided on the basis of an earlier decision by this court, a respondent’s constitutional guarantee of due process is safeguarded not only by the hearing necessary to verify his conviction but also by his right to a jury trial and appellate review of the criminal conviction itself. See In the Matter of Abrams, 38 A.D.2d 334, 329 N.Y.S.2d 364 (1972). We note that the state of New York has a statute which closely resembles D.C.Code 1973, § ll-2503(a). It provides for automatic disbarment upon an attorney’s conviction of a crime cognizable as a felony. Judiciary Law § 90, subd. 4.

9 . In Laughlin v. United States, supra 154 U.S. App.D.C. at 199, 474 F.2d at 447, the court, citing D.C.Code 1973, § 11-2503, upheld the disbarment of Laughlin based both on obstruction of justice and perjury charges. The Laughlin court characterized obstruction of justice and perjury as “two offenses which belie the basic character qualification required of a lawyer . . . ." Id.

10 . We recognize that there will be situations in which the question whether a crime inherently involves moral turpitude is very difficult, and that in such cases The Board accordingly will want to err on the side of admitting evidence that goes to the moral implications of the particular respondent’s acts, as a way of determining whether his particular offense involved moral turpitude, even if the crime cannot be said per se to do so. Thus, our conclusion here that obstruction of justice inherently involves moral turpitude is not a criticism of the hearing committee’s and The Board’s willingness to develop the record fully, in case we had to make an ad hoc judgment. The hearing committee, of course, will have to decide how extensive a hearing to conduct. Nothing in our rules would preclude a procedure whereby The Board, under its own rules, could determine— before referring a matter to a hearing committee — whether a particular crime per se involves moral turpitude. If The Board concluded that it did, the hearing committee’s work, and then The Board’s, would be simplified. If a matter were then referred to this court for disbarment and we were to disagree with the per se moral turpitude finding, we would remand for a more extensive evidentiary hearing.

11 . Amended D.C.App. R. XI, Sec. 15(1) and (2) provide:

(1) Upon the filing with the Court of a certifícate demonstrating that an attorney has been convicted of a serious crime as hereinafter defined, the Court shall enter an order immediately suspending the attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such conviction. Upon good cause shown, the Court may set aside such order restraining the attorney from engaging in the practice of law when it appears in the interest of justice so to do.

(2) The term “serious crime” shall include any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, wilful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a “serious crime.”

12 . This allows The Board to determine de novo whether an attorney convicted of a felony or other crime we have deemed “serious” for purposes of D.C.App. R. XI, Sec. 15(1) questions— or have not deemed serious (and thus not immediately suspended) — was guilty of a crime involving moral turpitude. We do not here decide that all felonies and other serious crimes covered by summary suspension under Sec. 15(1) are per se moral turpitude crimes. We prefer to resolve that question on a case by case basis, aided by The Board.

13 . Amended D.C.App. R. XI, Sec. 15(1) is set out in note 11, supra.

14 . See. D.C.App. R. XI, Sec. 15(4), which provides:

Upon the receipt of a certificate of conviction of an attorney for a serious crime, the Court shall, in addition to suspending him in accordance with the provisions of [D.C.App. R. XI, Sec. 15(1)], also refer the matter to the Board for the institution of a formal proceeding before a hearing committee, in which the sole issue to be determined shall be the nature of the final discipline to be imposed, provided that a disciplinary proceeding so instituted will not be brought to hearing until all appeals from the conviction are concluded.

15 .Amended D.C.App. R. XI, Sec. 7(2) and (3) provide:

(2) Formal Hearing. Formal disciplinary proceedings before a hearing committee shall be instituted by Bar Counsel by the filing of a petition with the Board (with a copy to the Clerk of the Court) which shall be sufficiently clear and specific to inform the respondent of the alleged misconduct. A copy of the petition shall be served upon the respondent. The respondent shall serve a copy of his answer upon Bar Counsel and file the original with the Board within 20 days after service of the petition, unless the time is extended by the Chairman. In the event the respondent fails to answer, the charges shall be deemed admitted, provided, however, that a respondent who fails to answer within the time provided may obtain permission of the Chairman to file an answer if the failure to file an answer was attributable to mistake, inadvertence, surprise, or excusable neglect.

Following service of the answer or upon failure to answer, the matter shall be assigned by the Chairman to a hearing committee.

A hearing committee member who has reviewed Bar Counsel’s recommended disposition of a matter, as set forth in paragraph (1) of this section, shall not take part in any formal disciplinary proceeding regarding the same matter, except for the probable cause hearing referred to in paragraph (1).

If there are any issues of fact raised by the pleadings, or if the respondent requests the opportunity to be heard in mitigation, the hearing committee shall serve a notice of hearing upon Bar Counsel and the respondent, or his counsel, stating the date and place of the hearing at least 15 days in advance thereof. The notice of hearing shall advise the respondent that he is entitled to be represented by counsel, to cross-examine witnesses, and to present evidence in his own behalf.

The hearing committee shall in every case submit a report containing its findings and recommendation, together with a record of its proceedings and briefs, if any were submitted, to the Board within 60 days after the conclusion of its hearing. In the event of a hearing committee’s noncompliance with this provision, the Board, in its discretion, may so advise the Court and request intercession by the Court.

(3) Review by the Board and Court. Upon receipt of a report from a hearing committee, the Board shall set the dates for submission of briefs and for oral argument before the Board. If neither the respondent nor Bar Counsel objects to the findings and recommendation of the hearing committee, oral argument and the submission of briefs may be waived by stipulation, subject to the approval of the Board. The Board shall promptly after the conclusion of oral argument or waiver thereof either affirm or modify the recommendation of the hearing committee, remand the matter for further proceedings before the hearing committee, or dismiss the petition. In the event the Board determines that the proceeding shall be concluded by reprimand, it shall instruct Bar Counsel to so notify the respondent in writing.

Unless the Board shall dismiss or remand the petition or the matter is concluded by reprimand, the Board shall promptly submit a report containing its findings and recommendation, together with the entire record, to the Court. After the filing of the report, a copy thereof shall be served on the respondent. The respondent may file exceptions to the report within 20 days from the date of service of a copy thereof, or within an additional period not to exceed 20 days granted by this court for good cause shown.

If exceptions to the report are filed by the respondent, the Court shall schedule the matter for the submission of briefs and oral argument in accordance with the general rules governing civil appeals. Upon conclusion of the proceedings, or upon consideration of the report if no exceptions thereto are filed by the respondent, the Court shall enter an appropriate order as soon as the business of the Court permits. In considering the appropriate order, the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted.

Proceedings before the Board and proceedings, if any, before the Court shall be conducted by Bar Counsel.

The Court reserves the right with respect to all disciplinary proceedings in which a dismissal, informal admonition, or reprimand is contemplated or effectuated to review the matter and to enter an appropriate order with respect thereto, including an order directing further proceedings.

Judge Yeagley was an Associate Judge of this court at the time of oral argument; his status changed to Associate Judge, Retired, on April 20, 1979.