Before Terry, Reid and Washington, Associate Judges.
The opinion of the court was delivered by: Per Curiam
On Report and Recommendation of the Board on Professional Responsibility
Respondent James A. Bielec is an attorney admitted to the bars of the Commonwealth of Virginia and the District of Columbia. After he entered into a consent decree with a judge of the United States Bankruptcy Court for the Eastern District of Virginia, voluntarily agreeing to the striking of his name from the roll of attorneys eligible to practice before that court, the Board of Professional Responsibility (Board) recommended that this court not impose any reciprocal discipline, finding that to do so would result in a deprivation of respondent's right to due process of law. We agree with the Board's recommendation.
On May 9, 1997, an attorney from the Office of the United States Trustee (U.S. Trustee) filed a complaint in the United States Bankruptcy Court for the Eastern District of Virginia seeking a preliminary and permanent injunction to bar Richard C. Deering, and his agents, from practicing law in any bankruptcy matter before that court. The complaint was filed in response to and with a pending bankruptcy case, In re Julie K. Owens, Case No. 97-12084-SSM (Chapter 7), a case being handled by Mr. Deering and allegedly by the respondent. The U.S. Trustee's complaint focused primarily on Mr. Deering, alleging that Deering was not licensed to practice law in Virginia, but maintained a legal practice in Virginia through an entity, Richard C. Deering & Associates. The complaint further stated that Julie K. Owens consulted with Deering in regard to filing for bankruptcy and that a bankruptcy petition was filed in her case on March 21, 1997. Ms. Owens had not viewed her bankruptcy schedules prior to the filing of her petition, and her purported signatures on the schedules, in fact, were made by Mr. Deering. Ms. Owens did not see her schedules until the day before the meeting of creditors. The U.S. Trustee's complaint also averred the following against James A. Bielec: 1) that he signed the bankruptcy fee disclosure form as local counsel for the debtor's attorneys, Richard C. Deering & Associates, and 2) that Ms. Owens never met or saw the respondent. The complaint concluded by alleging that the "defendants' professional conduct is so improper as to constitute an immediate and present danger to the public;" and that "the representation accorded the debtor [Ms. Owens] in this case is consistent with the poor quality of service rendered in bankruptcy cases in which Richard C. Deering is lead counsel."
A hearing on the matter was conducted on May 20, 1997 in the Bankruptcy Court, in which Deering effectively consented to being permanently enjoined from practicing before that court, and a temporary injunction was sought but denied with respect to the respondent. In his opening statement, the U.S. Trustee stated that "Mr. Deering basically wantonly disregarded all the [ethical] rules and we believe [respondent] knew about it or should have known after hundreds of cases what was going on, and he failed to do anything." However, after conceding that he did not have knowledge of any misconduct on the part of the respondent, the U.S. Trustee indicated that he wished to find out "what was going on with their cases."
Bielec had previously filed an affidavit declaring that he did not sign the pleadings in Ms. Owens' bankruptcy case, did not provide any advice or representation to her, did not spend any time on her matter, and did not receive any compensation from her. In addition, Bielec had sent a letter to the Clerk of the Court, dated April 25, 1997, stating that Deering had been using his name in Virginia Bankruptcy cases without his consent and that Bielec had advised the Virginia Board of this information.
On May 29, 1997, Deering was deposed by the U.S. Trustee. Deering's deposition is described as equivocal by the Board. Deering's testimony stated that he signed Bielec's name whenever it appeared in the Owens pleadings, but also explained that Bielec knew that he was signing his name and that this was a long standing practice between the two of them. A final hearing for a permanent injunction with respect to Bielec was scheduled for July 9, 1997.
On July 7, 1997, Bielec entered into a consent decree by which the bankruptcy judge entered an order permanently enjoining him and striking his name from the roll of attorneys admitted to practice before that court. The judge's order explicitly stated that Bielec neither admitted nor denied the allegations in that proceeding and that the respondent did not waive his right to introduce evidence in response to the allegations in any future proceedings. *fn1
On September 10, 1997, Bar Counsel filed a certified copy of the bankruptcy judge's July 7, 1997 order "disbarring" Bielec, and proposed that he be placed on interim suspension. On October 6, 1997, we suspended Bielec until final resolution of the case by this court.
In March of 1998, Bielec filed a motion in the bankruptcy court pursuant to Fed. R. Civ. P. 60 (b) and Fed. R. Bankr. P. 9024 seeking to vacate or modify the judge's July 7, 1997 order. He asserted that, contrary to his expectation, the District of Columbia and bars of other courts were using the order to exact reciprocal discipline by treating it as the functional equivalent of an order of disbarrment. The judge found that there was nothing ambiguous or unclear about the order and denied the respondent's request. In doing so, the bankruptcy judge articulated that he did not believe it was an order of disbarrment and that the bankruptcy court did not have a formal rule on the disbarrment of counsel. The judge also expressed that Bielec could apply for readmission immediately and raised a question as to whether the order was limited and only prohibited the respondent from appearing before him and not other bankruptcy judges in the Eastern District of Virginia.
Bar Counsel filed an exception to the Board's report recommending against reciprocal discipline, primarily relying on the fact that there is a presumption in this jurisdiction that the original discipline imposed by the disciplining court should be imposed here on a reciprocal basis. Bielec and the Board argue that the imposition of reciprocal discipline in this case would violate his due process rights because the U.S. Trustee's complaint fails to charge him with any specific disciplinary violations, and thus, Bielec could not have been on fair notice of the charges and the accompanying consequences in this jurisdiction. In response, Bar Counsel posits that Bielec's consent estops him from making any due process challenge to reciprocal discipline, and that the allegations against Bielec in the U.S. Trustee's complaint, as well as the Trustee's statements in the preliminary injunction hearing, are sufficient to put Bielec on notice of disciplinary violations and, thus satisfy notions of due process. The Board responds that although there may have been ...