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In re Richardson

September 21, 2000


Before Terry, Steadman, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

On review of a finding of contempt

(Hon. Judith Retchin, Hearing Judge)

Argued January 11, 2000

T. Carlton Richardson, respondent, was suspended on an interim basis from the District of Columbia Bar following his resignation from the Florida Bar due to pending disciplinary proceedings in Florida. See In re Richardson, No. 95-BG-639 (D.C. June 27, 1995). On April 17, 1997, this court imposed final discipline by suspending respondent from practicing law in the District of Columbia for three years with reinstatement conditioned on proof of fitness. See In re Richardson, 692 A.2d 427, 428 (D.C. 1997), cert. denied, 522 U.S. 1118 (1998). Following Bar Counsel's investigation into allegations that respondent had continued to practice law while suspended on an interim basis, this court issued an order for respondent to show cause why he should not be held in contempt of the suspension order. Judge Retchin of the Superior Court was designated as a judge of this court pursuant to D.C. Code § 11-707 (a) (1995 Repl.) to adjudicate the contempt. On March 6, 1998, Judge Retchin found respondent guilty of criminal contempt for failing to comply with the June 27, 1995, interim suspension order; she sentenced respondent to 120 days imprisonment, suspended that sentence, and placed respondent on three years probation conditioned on payment of a $200 fine, $50 court costs, reporting to the probation office the day after sentencing, compliance with the affidavit requirements of D.C. Bar R. XI, § 14 (2000), and any further court orders. Respondent does not dispute that he willfully engaged in the practice of law subsequent to the court's June 27, 1995, interim suspension order, but argues instead that an interim suspension without thirty days to close out his practice was a violation of the Equal Protection Clause because attorneys suspended or disbarred in original discipline actions are permitted thirty days to wind up their practices. Respondent also raises numerous procedural objections, including challenges to the court's authority to proceed against him as it did. We conclude that the constitutional argument is not presented on the facts of this case, reject the procedural objections, and affirm the conviction for contempt.

I. Validity of the Contempt Proceedings

First, respondent argues that a single judge of this court lacks jurisdiction to find contempt or to impose a sentence because contempt proceedings are "cases and controversies" under Article III of the Constitution and D.C. Code § 11-705 (b) provides that "[c]ases and controversies shall be heard and determined by [three-judge] divisions" of this court. Respondent's argument overlooks the authority conferred by D.C. Code § 11-741 (a) to a single judge of this court to "punish for disobedience of an order." Judge Retchin, sitting as a designated judge of this court under § 11-707 (a), was thereby empowered to act singly in adjudicating and sentencing respondent for violating the court's interim suspension order. This court has upheld a procedurally similar finding of criminal contempt in which a single Superior Court judge, sitting by designation, sentenced a respondent in a disciplinary proceeding after making both findings of fact and conclusions of law. See In re Burton, 614 A.2d 46, 47 & n.1 (D.C. 1992).

II. Personal Jurisdiction

Respondent contends that the failure to personally serve him with Bar Counsel's motion or the court's Order to Show Cause prevented this court from obtaining personal jurisdiction over him. Even prior to Bar Counsel's motion for a show cause order, respondent was subject to the jurisdiction of the court because he was a member of the Bar who had been suspended by the court. See D.C. Bar Rule XI, § 1. *fn1 Therefore, this court properly exercised jurisdiction over respondent. *fn2

III. Probable Cause

Respondent argues that an initial showing of probable cause is required prior to a finding of criminal contempt. "A criminal contempt proceeding is not a criminal prosecution, and consequently not all procedures required in a criminal trial are necessary in a hearing on a charge of contempt." Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1122 (D.C. 1988) (quoting In re Wiggins, 359 A.2d 579, 580 (D.C. 1976)). Moreover, there is no prejudice to respondent because Bar Counsel's motion for an order to show cause was based, inter alia, on respondent's actual appearance before Judge Queen on four occasions after the date of the suspension order, providing sufficient probable cause to support a charge of criminal contempt.

IV. Jury Trial

Respondent contends that the sentence imposed for criminal contempt was unconstitutional and statutorily impermissible, because he was denied a jury trial. The Sixth Amendment right to jury trial arises with "serious" or non-petty offenses. See Frank v. United States, 395 U.S. 147, 148 (1969). "The most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission." Id. Where no maximum penalty is authorized, however, such as in the District of Columbia contempt statute, see D.C. Code § 11-741 (a), the actual sentence imposed provides the best gauge to the seriousness of the offense, and "sentences for criminal contempt of up to six months may constitutionally be imposed without a jury trial." Frank, 395 U.S. at 149. "The appropriate standard for determining the seriousness of contempts committed in the District of Columbia local courts is to be found in the D.C. Code provisions concerning trial by jury, § 16-705(b)." In re Evans, 411 A.2d 984, 992 (D.C. 1980); accord Brookens, 538 A.2d at 1123. Contempt is a petty offense unless the penalty includes a fine in excess of $1000 or imprisonment exceeding six months. See D.C. Code ยง 16-705 (b)(1) (providing for trial by a judge in a criminal contempt case except where offense punishable by imprisonment over six months or fine exceeding $1000). The additional imposition of three years probation does not convert a petty offense into one requiring a jury trial. Cf. Frank, 395 U.S. at 150 (noting federal statute authorizing ...

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