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08/28/92 MELVIN M. BURTON JR. RESPONDENT

August 28, 1992

IN RE: MELVIN M. BURTON, JR., RESPONDENT


On Review of An Order Adjudging Respondent In Contempt Of This Court.

Before Terry and Farrell, Associate Judges, and Mack, Senior Judge. Opinion for the Court by Associate Judge Farrell. Separate statement by Senior Judge Mack.

The opinion of the court was delivered by: Farrell; Mack

FARRELL, Associate Judge:

This case is before a division of this court on review of an order entered by a single Judge of the court adjudging respondent in criminal contempt for violation of this court's 1984 order disbarring him from the practice of law in the District of Columbia. See D.C. Code § 11-741 (1989). The contempt arose from Bar Counsel's request for an order to show cause why respondent should not be held in contempt for engaging in the practice of law despite his disbarment. After finding respondent in contempt, the Judge conducting the proceeding imposed a sentence of sixty days of imprisonment, but suspended execution of the sentence in favor of unsupervised probation for a period of three years. Respondent contests the sufficiency of the evidence to support the finding of contempt; the authority of Bar Counsel (rather than the Committee on Unauthorized Practice of Law) to initiate and prosecute the contempt proceedings; and the severity of the sentence imposed. We uphold the judgment of contempt. *fn1

I.

On January 11, 1984, this court ordered that respondent be disbarred from the practice of law in the District of Columbia effective thirty days from the date of the court's order. *fn2 In re Burton, 472 A.2d 831 (D.C. 1984). In March of 1989, Bar Counsel petitioned this court for an order to show cause why respondent should not be held in contempt of court for violation of the disbarrment order. The ground for the petition was that respondent had held himself out as an attorney and practiced law in the District by participating in an employment discrimination suit filed on behalf of a client in the United States District Court for the District of Columbia.

Pursuant to D.C. Code § 11-707 (a), this court designated the Honorable Stephen F. Eilperin of the Superior Court as a member of this court to determine, after a hearing, whether respondent should be held in contempt. Judge Eilperin held three days of evidentiary hearings at which respondent was afforded full opportunity to present evidence and cross-examine witnesses against him. On February 5, 1991, Judge Eilperin issued a Memorandum and Order setting forth his findings of fact and Conclusions of law. He subsequently adJudged respondent in contempt and sentenced him in the manner described at the outset. *fn3

In his opinion, Judge Eilperin identified the "principal issue raised by Bar Counsel relating to Mr. Burton's actions with respect to an employment discrimination lawsuit filed in federal district court by Ms. Joan Darden." The Judge was persuaded by the evidence "beyond a reasonable doubt that Melvin M. Burton, Jr. knowingly and intentionally took responsibility for handling Ms. Darden's employment discrimination case in federal court and held himself out to Ms. Darden as a practicing attorney." More particularly, the Judge found that

Mr. Burton took responsibility for [Ms. Darden's] discrimination claim -- not only pursuing it administratively as he had a right to do -- but drafting the complaint for filing in federal district court, preparing Ms. Darden for her deposition, preparing her memorandum opposing summary judgment, counseling her on the court appearances, advising her on courses of action after (the district Judge's) decision, holding himself out to Ms. Darden as a person authorized to perform those services, and accepting checks tendered as attorney's fees.

In all these respects he was practicing law within the meaning of Rule 49 [ *fn4] of the District of Columbia Court of Appeals, and was doing so knowingly and willfully.

II.

Judge Eilperin, though designated a member of this court, served as the trier of fact in adjudging respondent in contempt. In critical part his findings rested upon an evaluation of the credibility of both respondent and Ms. Darden. Accordingly, we shall not disturb those findings unless they are plainly wrong or without evidence to support them. Cf. D.C. Code § 17-305 (a) (1989) ("plainly wrong" standard of review applied to factual findings underlying "order or judgment of a lower court" brought before this court for review); In re Kirk; 413 A.2d 928, 930 (D.C. 1980) (trial court determination of contempt reviewed under § 17-305 (a) standard). Respondent does not argue, and no reason is apparent, why the fact that Judge Eilperin sat as a member of this court -- in effect serving as a special master -- dictates a different standard of review.

We have reviewed the record in light of the Judge's carefully documented findings, and conclude they are well-founded. Respondent takes repeated issue with the Judge's decision to discredit his testimony and to credit that of Ms. Darden. That decision, however, was based partly on what the Judge found were implausible inferences respondent asked to be drawn from his conduct, and partly on the corroboration afforded Ms. Darden's testimony by other evidence in the case. Respondent's defense was that he never held himself out to Ms. Darden as an attorney and that she was represented in the district court action solely by Messrs. Iglehart and Blake, both attorneys authorized to practice law. However, there is ample support in the record for the Judge's contrary finding that respondent represented himself to Darden as a lawyer and that, while

Mr. Iglehart or Mr. Blake may have formally signed court papers or entered their appearances for Ms. Darden . . . , they were no more than marionettes on strings held by Mr. Burton. It was ...


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