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In re Asher

May 24, 2001


Before Wagner, Chief Judge, and Schwelb and Washington, Associate Judges.

The opinion of the court was delivered by: Wagner, Chief Judge

Submitted April 10, 2001

The Board on Professional Responsibility (Board) recommended that respondent, Chris Asher, be disbarred for misappropriating client and third-party funds and for other multiple violations of the Rules of Professional Conduct. Respondent's principal argument is that he was denied due process because the hearing was held in his absence. He also challenges the factual findings and legal conclusions of the Board. From the record of the proceedings, we conclude that respondent was given notice and an opportunity to appear at the hearing and defend, but he failed to do so. Further, we hold that the Board's findings are supported by the record and that the recommended sanction is appropriate; therefore, we adopt the recommendation.

I. Procedural Background

A. Factual Summary

Bar Counsel filed a Specification of Charges against respondent on December 23, 1998 alleging that he violated multiple provisions of the Rules of Professional Conduct, including misappropriation of client funds. A special process server made several attempts to serve respondent with a copy of the petition and Specification of Charges at his home during January and February, 1999. When the process server attempted to serve him on February 2, 1999, respondent denied that he was Chris Asher. Finally, on March 12, 1999, the process server, who recognized respondent as the same man he had encountered on February 2nd, served respondent at his office in the District of Columbia. After the affidavit of service was filed, the Board scheduled the hearing for May 17, 1999 and directed Bar Counsel and respondent to file their proposed exhibits by May 7, 1999. Bar Counsel filed and hand-delivered to respondent copies of Bar Counsel's proposed exhibits. Respondent never filed or served any proposed exhibits, and he never filed an answer to the Specification of Charges.

The Chair of the Hearing Committee (Chair) for the proceeding scheduled a pre-hearing conference for May 3rd. Since the Board was unable to reach respondent by telephone, the date was changed to May 5th, and the Board notified respondent via facsimile transmission. Respondent failed to answer or participate, and the Chair entered an order scheduling the hearing for May 17th, unless respondent filed a motion showing good cause for a continuance. The order also provided that because of respondent's failure to answer and participate at the pre-hearing, "any such motion [for continuance] shall be supported by an affidavit attesting to respondent's inability to proceed with the hearing on May 17th; and that any alleged disability shall entitle Bar Counsel to request an independent medical examination of Respondent." Respondent sent a letter to the Board indicating that he was experiencing "excruciating pain in [his] chest, neck, and entire left side of [his] body." The request was not supported by affidavit as required by the Order. Bar Counsel filed a response indicating that he had no objection to a continuance with the conditions that respondent make himself available for an independent medical examination by a physician selected by Bar Counsel and agree to an interim suspension pursuant to D.C. App. R. XI, § 13 (c) (suspension of incapacitated attorneys). By Order dated May 20, 1999, the Chair continued the hearing to June 30 and July 1, 1999, with the proviso that no further extensions would be granted unless respondent and Bar Counsel agreed, or the Court found that respondent was unable to attend.

Between May 20, 1999 and the hearing date of June 30, 1999, the Board and Bar Counsel sent numerous letters to respondent and made several attempts to contact him. By letter dated June 28, 1999, respondent requested a further continuance "until such time as [he was] declared fit by [his] doctors." Respondent attached a letter from Dr. Morton Altschuler, stating that respondent "continues to complain of neck pain with radiation to the left arm and shoulder," and that he had been referred to a neurologist. Dr. Altschuler also indicated that he had recommended that respondent take a leave of absence until his tests and treatment were completed. Respondent called and informed the Board that he would not make himself available to participate by telephone in a pre-hearing conference on June 29, 1999, and that he would not attend the hearing on June 30, 1999. Respondent declined to provide a telephone number where he could be reached, and he did not appear at the hearing on June 30, 1999. Respondent traveled to London on July 3, 1999. The Hearing Committee proceeded with the hearing in his absence. Bar Counsel called ten witnesses and offered Bar Exhibits A-C and 1-40, all of which were admitted into evidence. On December 23, 1999, the Hearing Committee issued its report. The Hearing Committee found that respondent had engaged in the misconduct charged and concluded that the nature and extent of his misconduct warranted disbarrment.

Respondent filed exceptions to the Hearing Committee's report, and the parties submitted briefs to the Board. The Board found that the Hearing Committee's factual findings were supported by the evidence and agreed with its conclusions and recommended sanction. Respondent filed exceptions to the Board's report and recommended sanction.

B. Respondent's Due Process Challenge

Respondent argues that he was denied due process in that the hearing was held in his absence in spite of his known medical condition which precluded his attendance. Thus, he contends, he was deprived of a fair hearing and the right to confront and cross examine the witnesses against him. Bar Counsel responds that respondent had an opportunity to appear and contest the charges and to have the case continued a second time, if he provided evidence of the alleged disabling condition which precluded his attendance.

"The `right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951)). Fundamental requirements of due process are notice and an adequate opportunity to appear and contest charges. Id. (citations omitted); In re Shieh, 738 A.2d 814, 816-17 (D.C. 1999); Jerome Mgmt. v. District of Columbia Rental Hous. Comm'n, 682 A.2d 178, 183 (D.C. 1996). While respondent disputes the circumstances surrounding the process server's unsuccessful efforts to serve him initially, he does not dispute that the process server served him with a copy of the petition and Specification of Charges on March 12, 1999. His due process challenge centers upon the denial of his request for a continuance of the hearing which proceeded in his absence. We consider, therefore, the factors underlying the Board's decision denying respondent's request for a continuance.

The record demonstrates, as the Board and the Hearing Committee concluded, extensive efforts by the Hearing Committee, Bar Counsel and the Board to assure that respondent had an opportunity to be heard. After successfully avoiding service for several months, respondent requested and was granted a continuance of the first hearing date, which had been scheduled for May 17, 1999. *fn1 Although the Board had issued an order requiring that any motion for continuance be supported by an affidavit attesting to respondent's condition, respondent did not file such an affidavit with his request for a continuance of the May hearing. Instead, he sent a letter indicating only that his condition required a continuance and that he had an appointment for re-evaluation with his physician on May 11th and an MRI set for May 13th. Nevertheless, the Board continued the hearing until June 30th with the proviso for no further continuances without the consent of Bar Counsel or the court determination that respondent was unable to attend. Respondent did not present evidence or an affidavit, as required by the earlier Order, that he was unable to participate in the hearing on June 30th because of medical reasons. Neither respondent's letter nor the attached statement from his physician indicated that he was suffering from a condition which precluded him from participating in the hearing. As the Hearing Committee noted, respondent was able to travel to London on July 3, 1999, within days of the hearing in this disciplinary case. Since the Chair, Bar Counsel and the Board had made persistent efforts to provide respondent with an opportunity to provide evidence of his claimed illness, and respondent had failed to do so, and in light of a record showing that respondent had avoided at every turn proceeding with this matter, the Board concluded that denial of the continuance request was warranted and that proceeding with the hearing was not a denial of due process. *fn2 We agree.

In the due process context, an opportunity to be heard at a meaningful time does not mean only at such time as one party finds it to be convenient. Consistent with due process, a tribunal may deny a request for continuance of a hearing, having considered various factors, including, inter alia, any lack of good faith and prejudice to the opposing party. See Daley v. United States, 739 A.2d 814, 817 (D.C. 1999) (citations omitted). The decision to deny respondent's request for continuance is well supported by the record which shows that respondent had notice of the hearing and was given several opportunities to respond and participate; that he consistently sought to avoid participating in the proceedings; and that he failed to provide the requisite support for his claim of a disabling condition which prevented his participation in the proceedings. *fn3 As the Hearing Committee noted in this case, "another continuance would have served no useful purpose for Asher and would have been detrimental to the public interest." There was ample basis to conclude that respondent absented himself voluntarily and for the purpose of avoiding the proceeding. Such a voluntary absence does not deny due process, and the administrative tribunal may require the hearing to go forward under such circumstances. ...

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