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
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.
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 he who maneuvered and controlled their movements.
We therefore sustain the sufficiency of the evidence of contempt.
Respondent questions the authority of Bar Counsel to initiate and prosecute proceedings for contempt against a person engaged in the unauthorized practice of law, contending that Rule 49 of the rules of this court, which governs "Unauthorized Practice of Law," expressly commits the decision whether to initiate contempt proceedings for such conduct to the Committee on Unauthorized Practice of Law. Rule 49 (d). *fn5 Respondent makes no challenge, nor could he, to this court's jurisdiction to punish by contempt disobedience of an order suspending or disbarring an attorney from the practice of law. The court's disciplinary jurisdiction over attorneys it has disbarred -- but who may seek reinstatement after five years, In re McBride, 602 A.2d 626 (D.C. 1992) (en banc) -- is unquestioned. D.C. Bar Rule XI, Sec. 1 (a). And the court's power to punish by contempt violations of its orders, D.C. Code § 11-741, necessarily extends to orders barring an attorney from the further practice of law in the District of Columbia. Hence this court, on its own motion, would have unquestioned jurisdiction to initiate contempt proceedings against a disbarred attorney no matter what the source of the allegation of unauthorized practice. The fact that Bar Counsel or anyone else initiated the request for a show cause order, and prosecuted the contempt charge at the court's behest, can have no effect upon the jurisdiction of the court to hold respondent in contempt.
Instead, respondent's argument appears to be that the court has violated its own rules (specifically Rule 49 (d)) by convening contempt proceedings upon petition by Bar Counsel rather than the Committee on Unauthorized Practice. The argument in essence is that this court, by adopting Rule 49, has provided that every case of unauthorized practice of law must begin administratively and proceed through the investigative and formal hearing procedures set forth in Rule 49 before contempt may be initiated. See Rule 49 (e)(3) ("Investigation"); Rule 49 (e)(4) ("Formal Proceedings"). *fn6 We reject this argument, concluding that Rule 49 is addressed to situations not presented here.
As our previous decisions in In re Banks, 561 A.2d 158 (D.C. 1987), and Brookens v. Committee on Unauthorized Practice of Law, supra note 3, make clear, Rule 49 and contempt proceedings initiated by the Committee on Unauthorized Practice relate to the situation either of persons who are not attorneys but hold themselves out as such (Banks) or of attorneys licensed by another jurisdiction but not the District of Columbia who nonetheless attempt to practice law in this jurisdiction other than in the limited manner permitted by Rule 49 (Brookens). Respondent, by contrast, was initially licensed to practice law in the District of Columbia but was disbarred. "All persons who have been suspended or disbarred by this Court are subject to the disciplinary jurisdiction of this Court and its Board on Professional Responsibility." D.C. Bar Rule XI, Sec. 1 (a). Bar Counsel, in turn, is appointed by the Board and is authorized "to investigate all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of this Court," id., Sec. 6 (a)(2); that conduct includes "failure to comply with any order of the Court." Id., Sec. 2 (b)(3). An attorney disbarred by this court is perforce under an "order" to refrain from the practice of law in the District of Columbia until reinstated. See also D.C. Bar Rule XI, Sec. 14 (e) ("The disbarred . . . attorney, after entry of the order [of disbarment], shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature"). We conclude that Bar Counsel, in keeping with this mandate to investigate misconduct by attorneys, including disbarred attorneys, may properly petition this court for contempt proceedings involving an attorney disbarred by the court but who allegedly continues to practice law in the District of Columbia. Rule 49 does not require that that conduct be channeled through the investigative and hearing procedures of the Committee on Unauthorized Practice.
Finally, we reject respondent's challenge to the alleged severity of his sentence. Since this matter is here by way of an adjudication of criminal contempt, not a recommendation for attorney discipline made by the Board on Professional Responsibility, we are under no obligation to review the sentence so as to avoid "fostering a tendency toward inconsistent Dispositions." D.C. Bar Rule XI, Sec. 9 (g). To be sure, this court is "guided by the principle of proportionality in determining whether or not a sentence for contempt bears a reasonable relationship to the underlying conduct." Caldwell v. United States, 595 A.2d 961, 968 (D.C. 1991). We have no doubt, however, that respondent's sentence of unsupervised probation for three years is commensurate with the conduct found by Judge Eilperin.
The order adjudging respondent in contempt of this court is, therefore,
Separate statement of MACK, Senior Judge: In the Brookens1a case, arising under our D.C. App. R. 49,2a we noted, "The great weight of authority renders it almost universally accepted that the highest court in the jurisdiction is imbued with the inherent authority to define, regulate, and control the practice of law in that jurisdiction" [citations omitted]. Today we are holding that a charge of unauthorized practice of law made against a previously disbarred attorney need not be channeled through the formal investigative and hearing provisions of Rule 49, but may be prosecuted as criminal contempt. I do not question the jurisdiction of this court or that of the Board on Professional Responsibility in this regard.3a I write to point out some of the problems, exemplified by the course of events in this case, that make this issue one best left to the full court either in its administrative capacity4a or for en banc consideration.
As an appellate court, we are not in the business of fact-finding and imposing criminal sentences. There is little helpful precedent. Put aside for the moment the provisions of Rule 49. In the only two cases arising in this jurisdiction which have adJudged disbarred attorneys in criminal contempt (one in 1930,5a one in 1939),6a the Court of Appeals for the District of Columbia was reviewing the findings and orders of lower courts that had held the lawyers in contempt for disobedience of the orders of those courts. Moreover, pursuant to our own contempt statute, D.C. Code § 11-741 (1992 Supp.), it is the Court of Appeals (or a single Judge thereof) which may punish for disobedience of an order or for contempt committed in the presence of our court. Against this historical back-drop, and having gone this far with the problems of Mr. Burton, I am somewhat uncomfortable with our analysis.
The instant case took form when, in response to a motion to show cause filed by Bar Counsel, we directed Mr. Burton to appear before a trial Judge for a determination as to whether he was in criminal contempt for practicing law in violation of our order of disbarment. The trial court, after a hearing, found that respondent had been practicing law in violation of our order and "recommended" that he be found in criminal contempt. When an appeal was taken from that recommendation, we returned the case to the trial court for the entry of a judgment of contempt and for sentencing. As our authority for our doing so, we cited Brookens, supra note 1, a case arising under our D.C. App. Rule 49 in which a Judge of this court sat as the fact-finder and entered the judgment of contempt subject to review by the express provisions of the Rule.
In the instant case, if the trial court was sitting by designation as a member of this court both in factfinding and punishing (see D.C. Code § 11-741), and if Rule 49 is unavailable to respondent, there follows an untidy problem of our jurisdiction to review. If the trial Judge was sitting merely as a factfinder, we may have erred in sending the case back for entry of a judgment for criminal contempt.