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In re Slattery

January 25, 2001

IN RE DANIEL J. SLATTERY, JR., RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA ON EXCEPTION OF RESPONDENT TO REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY


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

Argued October 7, 1999

This disciplinary case is before us on exceptions by respondent, Daniel J. Slattery, Jr., a member of the District of Columbia Bar and a Federal Administrative Law Judge, and by Bar Counsel, to the Report and Recommendation of the Board on Professional Responsibility (the "Board"). The disciplinary charges stem from Slattery's appropriation of $10,262.30 from a bank account in the name of a fraternal organization and his efforts to conceal that act. It is uncontested that Slattery removed the money from the account; the principal issue is whether his doing so was in violation of the disciplinary rules. The Board Report, adopting the findings of the Hearing Committee, found Slattery to have violated District of Columbia Rules of Professional Responsibility 8.4 (b) (committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects), and 8.4 (c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). The Board recommended a three-year suspension with proof of fitness prior to readmittance to the District of Columbia Bar, but Bar Counsel urges that disbarrment is the appropriate sanction for Slattery's misconduct. Slattery challenges our authority to discipline him under Rule 8.4 (b), contests the finding of misconduct, and argues that no sanction should be imposed.

Facts

The Board adopted the following findings of the Hearing Committee: *fn1 In the 1950s, the Ancient Order of the Hibernians (the "Order"), an Irish fraternal organization, began to collect funds to establish a national facility in Washington, D.C. Around the same time, members of the John Barry Division, a local chapter of the Order, began to collect separate donations to help furnish the national facility, often referred to by long-standing members as the "furniture fund." Over time, as the local chapter began to mistrust the manner in which its members perceived the national organization was handling the national fund, they refused to report to the national organization concerning the status of the local fund. The furniture fund existed continuously from the 1950s under the name Hibernian National Memorial Building Fund at Citibank, F.S.B., and its predecessor banks. At all times, the funds were held in an interest-bearing account (the "Account"). Interest was reported under the Order's taxpayer identification number, which the Order permitted the local chapter to use.

Slattery joined the John Barry Division in 1992, and was soon elected president of the chapter. Slattery never functioned as legal counsel to the national organization nor the local chapter. Slattery's father and Eugene Corkery had been the authorized signatories on the Account and Slattery replaced his father as co-signor on the Account upon his death in 1989. Slattery neither contributed any of his own funds to the Account, nor was his father known to have made any significant personal contribution to the Account. Until 1995, Corkery permitted Slattery to be the sole recipient of Account statements, as Slattery's father had been.

As of September 15, 1992, the Account balance for the furniture fund stood at $9,963.46, which increased periodically from accruing interest. Between September 16, 1992 and July 19, 1994, Slattery withdrew and used a total of $10,262.30 from the furniture fund for his personal benefit. Slattery neither sought authorization for use of the funds nor disclosed the withdrawals. Thereafter, Slattery filed a civil suit against the Order, in a personal capacity on behalf of himself and his sister, seeking to disgorge nationally collected funds. The suit was not authorized by the local chapter or any other Hibernian organization. On February 9, 1995, Slattery gave false and evasive answers in a deposition to questions concerning the Account for the furniture fund.

Slattery's appropriation of the furniture fund was subsequently detected, and Slattery eventually reimbursed the Order for the funds he took. No criminal charges were ever filed against Slattery for his appropriation of the funds.

I. Jurisdiction

Slattery challenges the jurisdiction of the Board and this court to address the rules violations asserted by Bar Counsel, arguing that in this disciplinary proceeding he is in effect being tried and convicted for the crime of theft. Relying on United States v. Quarles, 350 U.S. 11 (1955), and In re Stiller, 725 A.2d 533 (D.C. 1999), he contends that neither the Board nor this court is authorized to determine whether he has in fact violated a criminal statute.

In Quarles, the United States Supreme Court held that Congress has no power to subject a discharged serviceman to trial by court-martial for offenses committed while in the service. 350 U.S. at 22. Rather, as a civilian, the serviceman could not be deprived of the constitutional safeguards protecting persons accused of crime in a federal court, notably trial by jury. See id. Thus, the Court limited the scope of Article 3(a) of the Uniform Code of Military Justice, which provided that a discharged serviceman could be charged and convicted in the military tribunal. Quarles is inapposite because neither the Board nor this court actually convicts an individual during disciplinary proceedings.

In Stiller, the division opinion noted by way of dictum that "neither the hearing committee nor the Board nor this court is authorized to decide whether Mr. Stiller violated [a federal statute].

Under our legal system, that decision is entrusted exclusively to federal courts and federal juries. Any suggestion by us that Mr. Stiller violated (or did not violate) [that statute] would have no legal force or effect; at best, we would be rendering only an advisory opinion if we even attempted to address the question." Stiller, 725 A.2d at 539 (footnote omitted). *fn2 Slattery seizes on this language to argue that by determining that he has violated Rule 8.4 (b) by committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness, absent an actual conviction of the substantive crime, this court would be rendering an improper advisory opinion and usurping the function of juries to decide guilt. We are not persuaded by this argument, which erroneously equates criminal and disciplinary proceedings. The penal and bar disciplinary regimes have different burdens of proof (beyond reasonable doubt versus clear and convincing evidence), different consequences as a result of an adverse determination (potential deprivation of liberty versus deprivation of a property interest), and different disciplinary goals (punishment and/or deterrence versus policing the profession). Accordingly, we do not understand Stiller to signal such a radical departure from our disciplinary jurisprudence. Rather, Stiller simply enunciates a first principle of our disciplinary jurisprudence under Rule 8.4 (b): we discipline for "conduct, not for any supposed violation of a criminal statute with which [a lawyer] has never even been charged." Id. at 540. Cf. D.C. Code § 11-2503. *fn3

Rule 8.4 (b) provides that it is professional misconduct to "[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." (Emphasis added.) Similarly, Rule 8.4 (c) subjects a bar member to discipline for professional misconduct if the lawyer "engage[s] in conduct involving dishonesty, deceit, or misrepresentation." There is no requirement in either provision of the rule that an attorney actually have been convicted of a crime for the rule to apply. Cf. D.C. Code § 11-2503 (a), supra note 3; D.C. Bar R. XI, § 10 (disciplinary proceedings based upon conviction of crime). Although Rules 8.4 (b) and (c) are applicable in cases in which an attorney has been convicted of a crime, an attorney is not immune from bar discipline under Rule 8.4 merely because a complainant or prosecuting authority has chosen not to bring criminal charges. Rather, an attorney may be disciplined for having engaged in conduct that constitutes a criminal act that reflects adversely on his or her fitness as a lawyer under Rule 8.4 (b) or engaging in dishonest or deceitful conduct, despite not having been prosecuted for such actions. See In re Gil, 656 A.2d 303, 305 (D.C. 1995); In re Pierson, 690 A.2d 941, 947 (finding violation of Rule 8.4 (b) for misappropriation of client funds). A finding by clear and convincing evidence that the conduct at issue was a criminal act that merits disciplinary sanction is something altogether different than a finding beyond a reasonable doubt that the conduct merits conviction and a criminal penalty. The first is within our disciplinary province; the second is not.

II. Procedural Claims

Notwithstanding that bar discipline does not result in a criminal conviction, it is well-settled that an attorney who is the subject of such proceedings is entitled to procedural due process safeguards. See In re Thorup, 432 A.2d 1221, 1225 (D.C. 1981); In re Colson, 412 A.2d 1160, 1164 (D.C. 1979) (en banc). The procedural requirements which apply in attorney disciplinary proceedings are analogous to those of other "contested cases." Thorup, 432 A.2d at 1225; In re Williams, 464 A.2d 115, 119 (D.C. 1983). The burden of proving the charges rests with Bar Counsel and factual findings must be supported by clear and convincing evidence. See Thorup, 432 A.2d at 1225. Slattery argues that he was denied rights under Board Rules 7.1 *fn4 and 7.19, *fn5 Bar Rule XI, § 8 (c) *fn6 and the Due Process clause of the Fifth Amendment when Bar Counsel, without notice, allegedly changed his theory of theft by trick to one of theft by conversion.

A. Disciplinary System Rules

Slattery contends that during the evidentiary hearing before the Hearing Committee, Bar Counsel proffered a new theory of theft, "theft by conversion and misappropriation," as opposed to the theory of "theft by trick" of which Bar Counsel, Slattery alleges, initially notified him. The Specification of Charges ("Specification") prepared by Bar Counsel and delivered to Slattery relates the factual basis on which the charges rest and then identifies the specific rules Bar Counsel alleges to have been violated. Notably, paragraphs six and nine of the Specification read as follows:

6. Although Respondent was a member of the Order at the time of the withdrawals, he was not a signatory on the Account. At no time was Respondent authorized to withdraw funds from the Account.

9. On March 29, 1995, Eugene D. Corkery, a member of the Order and signatory to the Account, filed an affidavit of forgery with Citibank. . . .

Slattery argues that he interpreted paragraphs six and nine together to allege that he obtained the money through the trick of "forgery." Slattery contends that Bar Counsel thereby violated Board Rules 7.1 and 7.19 because the charge in the Specification ...


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