Matter of Stanton

532 A.2d 95, 1987 D.C. App. LEXIS 461

• Court: District of Columbia Court of Appeals
• Decided: October 13, 1987
• Docket: 86-1390
• Status: Published

Opinions

PER CURIAM:

This is a petition for reinstatement to the Bar of the District of Columbia filed pursuant to D.C. Bar R. XI, § 21(5), by an attorney who was suspended from the practice of law for a year and a day because of several disciplinary rule violations. The hearing committee which conducted a hearing on the petition and the Board on Professional Responsibility (the Board) have recommended that reinstatement be denied. The Office of Bar Counsel, which participated in this matter before the hearing committee and the Board, joins in their recommendation to this court. We agree that petitioner has failed adequately to demonstrate his fitness to resume the practice of law, and therefore we dismiss his petition for reinstatement. See id,., § 21(6).

The year and a day suspension was imposed by this court for petitioner’s violations of DR 6-101(A)(3) (neglecting a legal matter entrusted to him) and DR 7-101(A)(1) (intentional failure to seek a client’s lawful objectives) in each of two cases in which he had been appointed under the Criminal Justice Act to represent defendants in criminal matters before the Superior Court. We adopted the Board’s findings and recommended sanctions for such violations in In re Stanton, 470 A.2d (D.C.1983) (Stanton I). Our decision in Stanton I sets forth the factual bases for the year and a day suspension from which petitioner now seeks reinstatement to the Bar. In addition, on the same day that we ordered petitioner suspended for this period, we imposed on him a concurrent sixty-day suspension for violations of the same disciplinary rules which occurred when he represented other criminal defendants in the Superior Court. The disposition resulting in the sixty-day suspension is reported at In re Stanton, 470 A.2d 281 (D.C.1983) (Stanton II), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 821 (1984). The concurrent suspensions became effective on June 22, 1984, and petitioner sought reinstatement on June 27, 1985.

A hearing on the petition for reinstatement was conducted on September 19, 1985. Testimony was elicited from petitioner and his character witness through crossexamination by Bar Counsel. In addition, petitioner and Bar Counsel introduced documentary evidence. The hearing committee’s recommendation that reinstatement be denied, and reasons therefor, were comprehensively reported on January 28, 1986. On September 23, 1986, the Board reported its recommendation that petitioner be denied reinstatement. The Board concluded that petitioner had failed to prove his compliance with D.C.Bar R. XI, § 19, as principally evidenced by his “continuing practice of law during his period of suspension.” This conclusion was grounded on evidence that petitioner had held himself out as a practicing attorney while representing clients before the D.C. Rental Housing Commission. More particularly, during his year and a day suspension petitioner had provided, in his own words, “legal services for clients” before the agency, had used stationery identifying himself as an attorney-at-law, and had used his D.C.Bar number on a pleading. Alternatively, the Board concluded that petitioner had failed to establish by clear and convincing evidence his fitness to resume the practice of law under the criteria announced by this court in In re Roundtree, 503 A.2d 1215, 1217 (D.C.1985).

In his brief to this court, petitioner raises two arguments in seeking reinstatement to the Bar. He first contends that our orders in Stanton I and Stanton II suspending him from practice should be vacated because of constitutional infirmities attendant to those proceedings. On this point, he maintains, for example, that he was denied due process because of the “vagueness and overbreadth” of the charges lodged against him. Petitioner also argues strenuously — as he has throughout these reinstatement proceedings — that our decisions in Stanton I and Stanton II held him accountable, ex post facto, for conduct which no attorney could have foreseen would be deemed violative of this jurisdiction’s disciplinary rules. However, the scope of the reinstatement proceeding now before us is only to determine whether petitioner is fit to resume the practice of law. See D.C.Bar R. XI, § 21(6). We agree with Bar Counsel that petitioner is precluded from challenging the constitutionality of the earlier disciplinary proceedings and dispositions of this court. See generally Henderson v. Snider Bros., Inc., 439 A.2d 481, 485 (D.C.1981) (principles of res judicata bar relitigation of a defense which was, or might have been raised in previous action).

The issue which is properly before us is whether petitioner established his fitness to resume the practice of law, as required by D.C.Bar R. XI, § 21(6). The standards by which we make that determination are fully set forth in Roundtree, supra, 503 A.2d at 1216-17. We emphasize here that petitioner has the burden of demonstrating by clear and convincing evidence his fitness for reinstatement. Id. at 1216-17 & n. 6 And the five factors to be considered in each reinstatement case are (1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney’s conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney’s present character; and (5) the attorney’s present qualifications and competence to practice law. Id. at 1217. Moreover, although we are not bound by the Board’s findings or recommendations, they are entitled to great weight. Id.

We agree with the Board and the hearing committee that reinstatement should be denied. First, petitioner failed to comply with his suspension order when he held himself out as a practicing attorney appearing before the Rental Housing Commission. This default, by itself, bars reinstatement. See D.C.Bar R. XI, § 19(5). D.C.Bar R. XI, § 19(2), consistent with this court’s rules on the unauthorized practice of law, D.C.App.R. 49(b), implicitly prohibits a disbarred or suspended attorney from practicing law before administrative agencies of the District of Columbia. Cf D.C. Bar Ethical Consideration 3-9 (“[I]t is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so.”); Bowles v. Laws, 59 App.D.C. 399, 45 F.2d 669, cert. denied, 283 U.S. 841, 51 S.Ct. 488, 75 L.Ed. 1452 (1930) (court affirms contempt order against disbarred attorney for attempting to practice law after disbarment).¹ Furthermore, petitioner’s holding of himself out as an attorney during the period of suspension would, alone, merit denial of reinstatement because such conduct constitutes the unauthorized practice of law. See D.C.App.R. 49(b)(1); In re Peterson, 274 N.W.2d 922, 926-27 (Minn.1979) (disbarred attorney denied reinstatement because, inter alia, during period of disbarment he engaged in the unauthorized practice of law by holding himself out as an attorney). Cf. D.C.Bar Ethical Consideration 2-13 (“In order to avoid the possibility of misleading persons with whom he or she deals, a lawyer should be scrupulous in the representation of his or her professional status.”).

But even accepting petitioner’s contention that he did not engage in any unauthorized practice before the Commission because he was acting in a lay capacity, as apparently was permitted under Commission rules, and that use of his bar number was merely a means of identification, we nevertheless hold that he has not demonstrated by clear and convincing evidence his fitness to resume the practice of law under the standards enunciated in Round-tree, supra. In our view, it is quite clear that petitioner refuses to acknowledge or appreciate the seriousness of his misconduct. For example, when asked at the hearing whether he had considered taking an ethics course during his suspension, he responded: “No. I have never had a problem knowing what the ethics rules require.” And when questioned about his responsibility to a criminal defendant who wishes to plead guilty, petitioner made it clear that he would not act differently from the way he did before. See Stanton I, supra, 470 A.2d at 274; Stanton II, supra, 470 A.2d at 288. When asked at the hearing whether he would assume the role of an advocate for a client who desired to plead guilty, petitioner answered: “Not until after the plea is accepted. Then you start advocating for the best possible sentence. If the guilty plea is accepted, you lose the case, and the client gets convicted. Who wants to advocate for that kind of result?”

In short, petitioner has not demonstrated by clear and convincing evidence his fitness to resume the practice of law. Therefore, the petition for reinstatement is hereby dismissed.

So ordered.

1 . Petitioner has not been cited for contempt for noncompliance with the suspension order. Nonetheless, in an appropriate case this would be one way of redressing such a violation. See D.C.App.R. 49(d); D.C.Bar R. XI, § 1. Thus, where the Board or the Office of Bar Counsel learns that a disbarred or suspended attorney is continuing to practice law in this jurisdiction, it appropriately might bring the violation to this court’s attention by filing a contempt petition. See generally D.C.Bar R. XI, § 4(3)(a); id., § 6(1).