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09/11/91 DAVID L. HERNDON RESPONDENT

September 11, 1991

IN RE: DAVID L. HERNDON, RESPONDENT


A Member of the Bar of the District of Columbia Court of Appeals; On Report and Recommendation of the Board on Professional Responsibility

Steadman and Farrell, Associate Judges, and Belson, Senior Judge.*

The opinion of the court was delivered by: Belson

This case is before the court on a Report and Recommendation of the Board on Professional Responsibility that respondent David L. Herndon be disbarred for two instances of intentional misappropriation of client's funds in violation of Disciplinary Rule 1-102(A)(4), two instances of dishonesty involving client's funds in violation of Disciplinary Rule 1-102(A)(4), two instances of misrepresentation of information to Bar Counsel in violation of Disciplinary Rule 1-102(A)(4), two instances of commingling of client's funds in violation of Disciplinary Rule 9-103(A), and one instance of failing to maintain proper client records in violation of Disciplinary Rule 9-103(B)(3). Herndon contends that the Hearing Committee's ruling partially denying his discovery request violated his right to due process and that he did not misappropriate client funds as they had been given to him in partial payment of his legal fees. *fn1 We disagree, accept the Board's findings of fact, Conclusions, and recommendations as set forth in parts I, III, and IV of its report, and impose the sanction of disbarment.

I.

From 1984 through 1987, Herndon represented Micro Computer Company (MCC) and Geri Schwartz, its president. During this period, the only arrangement made to compensate Herndon for his services consisted of an oral agreement that he would deduct his legal fees from the capital he would raise for MCC. In the summer of 1987, MCC, which was experiencing financial difficulties, wrote two checks to Herndon for the amounts of $3,000 and $11,000 to negotiate partial payment to MCC's creditors. Herndon did not deposit either check into an identifiable client account. Herndon negotiated a partial payment with Sanyo Business Corporation, one of MCC's creditors, and wrote a personal check to Sanyo on a closed account for the amount of $2,500. After six months of unsuccessfully attempting to get Herndon to make good the check, Sanyo's counsel filed a complaint with Bar Counsel. Shortly thereafter, Herndon paid Sanyo the $2,500 by a cashier's check. During this time, MCC learned that Herndon had not used all of the $14,000 to make partial payments to its creditors and repeatedly demanded that Herndon return the remaining $11,500 to MCC. Richard Gins, an attorney consulted by MCC with respect to possible bankruptcy proceedings, confronted Herndon about the remaining $11,500. Rather than denying that he owed the money to MCC, Herndon responded that "he would get the money, that he was having some tax problems." Eventually, Herndon wrote a check on a closed account to MCC for the amount of $11,500 in response to MCC's repeated demands. *fn2 The Office of Bar Counsel instituted formal disciplinary proceedings after Herndon responded to the allegations of misappropriation and commingling of client funds by stating that the funds were provided to him as payment for past legal services.

II.

Herndon contends that the Hearing Committee denied him due process of law when it denied part of his discovery request. *fn3 "It is well settled that parties to judicial or quasi-judicial proceedings are not entitled to pre-trial discovery as a matter of constitutional right." NLRB v. Interboro Contractors, Inc., 432 F.2d 854, 857-58 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S. Ct. 1375, 28 L.Ed.2d 661 (1971); see also NLRB v. Valley Mold Co., 530 F.2d 693, 695 (6th Cir.), cert. denied, 429 U.S. 824, 97 S. Ct. 77, 50 L.Ed.2d 86 (1976); Pet v. Department of Health Serv., 207 Conn. 346, 356, 542 A.2d 672, 677 (1988). The right to discovery stems from statutes or court rules providing for discovery. See Howard Sav. Inst. v. Francis, 133 N.J. Super. 54, , 335 A.2d 80, 82 (1975); see also Interboro Contractors, supra, 432 F.2d at 858 (pre-trial discovery was not available in federal courts until the Federal Rules of Civil Procedure became effective in 1938).

We have provided that a respondent in an attorney disciplinary proceeding has "the right to reasonable discovery in accordance with rules promulgated by the Board." Bar Rule XI § 8 (f). Under this authority the Board has promulgated rules for discovery. Generally, a respondent is entitled "to all material in the files of Bar Counsel pertaining to the pending charges that are neither privileged nor the work product of the Office of Bar Counsel." Board Rule 3.1. Discovery from a third party, however, is more limited:

The Chair of the Hearing Committee before which a case is pending . . . may, upon request of respondent, authorize discovery from non-parties by deposition or by production and inspection of documents. Such requests must be made by written motion. Such motions shall be granted only if respondent demonstrates that respondent has a compelling need for the additional discovery in the preparation of respondent's defense and that such discovery will not be an undue burden on the complainant or other persons. Such motions are not favored.

Board Rule 3.2.

Herndon questions why "reasonable discovery" in disciplinary proceedings should not be comparable to the liberal discovery permitted in civil proceedings or to the discovery rights available in criminal proceedings. He maintains that Board Rule 3.2, discovery of evidence from third parties, is overly restrictive because it requires that the respondent demonstrate a compelling need for the discovery requested that must outweigh the general disfavor accorded such requests. Thus, the Hearing Committee's application of Board Rule 3.2, he argues, violated his right to due process.

We need not decide whether the specific provisions of Board Rule 3.2 are unduly restrictive because in fact, as our Discussion of the matter will establish, the Hearing Committee's flexible and open-ended approach to discovery in this case was eminently reasonable. We, therefore, do not adopt part II of the Board's report which applies the provisions of Board Rule 3.2 to the discovery allowed by the Hearing Committee.

In giving content to the term "reasonable discovery," it is appropriate to look to discovery practices in administrative, civil, and criminal proceedings. In several cases, we have held that "procedural requirements analogous to those of other 'contested cases' must be observed in attorney disciplinary cases." In re Thorup, 432 A.2d 1221, 1225 (D.C. 1981); see also In re Williams, 464 A.2d 115, 119 (D.C. 1983). In this jurisdiction, the term "contested cases" is nearly always used in conjunction with administrative proceedings. *fn4 Thus, of foremost interest in our inquiry into reasonableness is the nature of discovery available in local administrative proceedings.

In administrative proceedings, as in other types of proceedings, parties generally are not entitled to pre-hearing discovery as a matter of constitutional right. Silverman v. Commodity Futures Trading Comm'n, 549 F.2d 28, 33 (7th Cir. 1977); see also Kenrich Petrochemicals, Inc., v. NLRB, 893 F.2d 1468, 1484 (3d Cir.), cert. denied, 111 S. Ct. 509, 112 L.Ed.2d 522 (1990); 4 J. STElN, G. MlTCHELL, & B. MEZINES, ADMINISTRATIVE LAW, § 23.01 [1] (1991). The District of Columbia Administrative Procedure Act (DCAPA) sets forth the minimum procedural requirements of an administrative proceeding involving a contested case. D.C. Code § 1-1509 (1987 & Supp. 1990). The DCAPA, like its federal counterpart -- the Administrative Procedure Act, 5 U.S.C. ...


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