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April 18, 1991


On Report and Recommendation of the Board on Professional Responsibility

Belson and Farrell, Associate Judges. Dissenting statement by Senior Judge Mack.

The opinion of the court was delivered by: Per Curiam

Petitioner was suspended from the practice of law for a year and a day because of several disciplinary violations. In re Stanton, 470 A.2d 272 (D.C. 1983) (Stanton I). *fn1 Before us is his second petition for reinstatement filed pursuant to D.C. Bar Rule XI, § 21 (5), now Rule XI, § 16 (d). *fn2 We conclude that petitioner's request for reinstatement is foreclosed by principles of res judicata: he has offered no reason why the decision of the court denying his first petition for reinstatement is not binding on this division of the court. Independently, we also deny reinstatement substantially for the reasons stated by the Board on Professional Responsibility, whose opinion we adopt in the particulars set forth below.

In In re Stanton, 532 A.2d 95 (D.C. 1987)(Stanton III), we held that petitioner had not demonstrated by clear and convincing evidence his fitness to resume the practice of law under the standards enunciated in In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985). In particular, we looked to the second Roundtree criterion of whether respondent had recognized the seriousness of the misconduct that resulted in his suspension. We concluded:

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?"

Stanton III, 532 A.2d at 97.

Upon examination of the present record, we conclude that nothing has changed with respect to petitioner's recognition of the seriousness of his misconduct. Indeed, what is remarkable is that the Hearing Committee in this case, in recommending reinstatement, made in essence the very point urged by Judge Mack in her Concurring opinion in Stanton III, but which the majority rejected as insufficient to meet the Roundtree standard: That petitioner acknowledged his duties to advise his clients who wished to plead guilty, to participate in plea negotiations with the prosecutor, and to insure that any plea offer was clearly set forth on the record, but that he "would not personally articulate the guilty plea of a client" in court and would not "personally take any action to convince a Judge of the voluntariness of a guilty plea of a client during a Rule 11 (d) inquiry." Report and Recommendations of the Hearing Committee, at 6 (emphasis by Committee); see Stanton III, 532 A.2d at 99 (Mack, J., Concurring)(petitioner, while indicating that in the future he would not interfere with his client's plea and would act as an advisor, "did state . . . that he would not personally articulate a client's plea of guilty in court")(emphasis in original). Stanton III made clear, however, that petitioner was being denied reinstatement because he still "would not assume the role of an advocate for a client who desired to plead guilty," id. at 97, which included advocating in open court. See Stanton I, 470 A.2d at 276 ("Nevertheless, in direct contravention of his client's often-repeated desire to plead guilty, respondent refused in open court to take any affirmative action to further his client's desires in the matter").

In Stanton III, in addressing petitioner's procedural challenge to the fairness of the proceedings leading to his suspension, the court accepted the rule that principles of res judicata apply in bar discipline cases so as to prevent litigation of defenses raised, or that might have been raised, in prior disciplinary proceedings. 532 A.2d at 96. The same rule necessarily governs petitioner's showing with respect to acknowledgment of the seriousness of his misconduct: if petitioner's understanding of his ethical duty is exactly the same as it was at the time of Stanton III, then he has had a full and fair opportunity to offer that understanding in satisfaction of the Roundtree standard, and he will not be heard -- by a division of the court -- to do so again. Otherwise petitioner could continually apply to the court for reinstatement while adhering to an understanding of his obligation which the court has found contrary to the duties imposed by the canons of ethics on an attorney representing a criminal defendant.

Even if principles of res judicata did not bar petitioner's application, we nevertheless would deny the instant petition because we agree with the Board on Professional Responsibility -- whose findings we give "great weight," Stanton III, 532 A.2d at 97 -- that petitioner has not met his burden of proof with respect to the other Roundtree factors. *fn3 First, the Board found that

little evidence was introduced on the Petitioner's activities since his suspension. He was employed as a paralegal during some portions of his suspension but, other than a few exhibits consisting of legal memoranda he wrote, he introduced no evidence about the dates of his employment, whether it was full or part-time, or of any other work he did.

Second, the Board found that, although petitioner was obliged to introduce affirmative evidence of his good character, "no evidence was introduced concerning Petitioner's present character." We agree with the Board's reasoning that

good character is an important element in a reinstatement proceeding, and every petitioner, regardless of the basis for the suspension or disbarment, must present proof on this issue. The amount of proof needed will likely vary with such factors as the length of the suspension and the circumstances surrounding the misconduct, but it is never an issue to be ignored, as Petitioner did here.

Finally, we agree in substance with the Board's finding in regard to petitioner's showing of present qualifications and competence to practice law:

Petitioner presented minimal evidence of his legal competence. He introduced a document listing the cases he tried before his suspension and some brief memoranda he prepared in his post-suspension paralegal position; he also testified about his paralegal work, some of which appeared to involve legal research while other aspects consisted of document organization and fact investigation. There was no testimony about the duration ...

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