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06/05/92 DAVID L. HERNDON RESPONDENT

June 5, 1992

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.

Before Steadman, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: In In re Herndon, 592 A.2D 592 (D.C. 1991) (Herndon 1), this court ordered respondent disbarred from the practice of law in the District of Columbia on the basis of a finding by the Board on Professional Responsibility, which we concluded was supported by substantial evidence of record, that respondent intentionally misappropriated client funds. DR 1-102 (A) (4). The present matter is before us on a report and recommendation of the Board, submitted prior to respondent's disbarment, which again recommends that he be disbarred on the basis of dishonesty. Indeed, the Board points out that respondent was engaged in the present misconduct" at precisely same time" he received the Hearing Committee's recommendation of disbarrment in the earlier case. The Board reasoned that although respondent's conduct in the present case, standing alone, would not merit more than suspension for a year, it was proper to "view the determination of appropriate discipline as though all pending matters involving the Respondent were before the Board simultaneously," citing In re Thompson, 492 A.2d 866, 867 (D.C. 1985). The Board therefore concluded: "Since we have recommended that Respondent be disbarred in [ Herndon I, supra ], this additional violation, when added to the prior case, only strengthens our view that disbarrment is appropriate."

The Board's report and recommendation was submitted to the court and the matter was placed on the argument calendar for September 16, 1991. However, at respondent's request it was removed from the calendar and he was directed to file any brief in opposition to the Board's recommendation within 40 days. Respondent did not comply with this order but instead moved to stay the filing of briefs and oral argument pending his filing of a petition for rehearing en banc and a possible petition for a writ of certiorari in the United States Supreme Court in Herndon I, supra. On November 12, 1991, we denied the motion for a stay and ordered that respondent's brief be filed within 10 days. On January 31, 1992, in view of the possibility that previous orders had been mailed to the wrong address, we reissued the November 12 order. On March 6, 1992, no brief having been filed, we directed that the matter be scheduled for consideration on the report and recommendation of the Board alone unless respondent's brief was filed within 10 days. To this date respondent has not filed a brief, and on May 12, 1992, we ordered that the case be deemed submitted on the Board's report and recommendation alone.

The Board found that respondent had engaged in dishonesty, DR 1-102 (A)(4), by his conduct and statements in connection with the sale of stock which he had pledged as security for loans he received from a former law partner but on which he later defaulted. *fn1 This finding is supported by substantial evidence in the record. D.C. Bar R. XI § 9 (g). With respect to sanction, as we have explained, the Board made no independent recommendation of disbarrment but viewed the present conduct as strengthening the basis for its previous recommendation. We conclude it is likewise unnecessary for the court to decide the appropriate sanction for respondent's present conduct viewed separately: he has already been disbarred. It shall suffice that the Board's findings as to misconduct, which we have accepted, be published and made part of the record to be considered by the Board and the court in the event that respondent petitions for reinstatement.

So ordered.

APPENDIX

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This case is before the Board on Professional Responsibility on Hearing Committee Number Five's Recommendation that Respondent be disbarred for violating DR 1-102(A) (4). That Rule bars conduct involving dishonesty, fraud, deceit or misrepresentation. The essence of the charge is that Respondent made false statements in the course of his efforts to sell stock he owned that was pledged as security on loans to Respondent which were in default.

This matter was heard on July 11, 1990, by the Hearing Committee. Bar Counsel introduced a series of exhibits and offered the testimony of one witness, J. Dapray Muir, who made the loan to Respondent on which the stock at issue was pledged as security. Respondent offered no exhibits, but testified on his own behalf. At the close of the evidence on the allegations of the Petition, the Committee conferred in executive session and reached a preliminary and non-binding determination that Bar Counsel had shown by clear and convincing evidence that Respondent violated DR 1-102(A)(4).

After that determination, Bar Counsel offered evidence of prior discipline, consisting of the Report of Hearing Committee Number One in Bar Docket No. 9-88, dated September 1, 1989 ("Report in 9-88"). That Committee found that Respondent violated DR 1-102(A)(4) in four respects, including two instances of transmitting checks drawn on closed accounts, and two instances of attempting to explain his conduct in connection with the handling of client funds. The Committee also found that Respondent violated DR 9-103(A) and 9-103(B)(3) by his action in not properly handling client funds, and it further found that Respondent intentionally misappropriated $11,500 of those funds. The recommendation of Hearing Committee Number One was that Respondent should be disbarred.

Respondent offered no evidence in mitigation. A post-hearing briefing schedule was set by the Committee. Before any brief was due, the Committee received the Board's Report and Recommendation in Docket No. 9-88, recommending disbarment.1a

After reviewing the record and post-hearing briefs, Hearing Committee Number Five concluded that Respondent had violated DR 1-102(A) (4) and recommended that Respondent be disbarred. Upon review of the record, *fn2 we have concluded that the Hearing Committee's findings on the violation is supported by substantial evidence. And, while we agree with the ultimate sanction recommended, we disagree with the Hearing Committee on the issue of ...


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