distress and closed his law practice. Accordingly, Mr. Ford seeks
declaratory relief, a permanent injunction blocking the from reporting on
the status of his disciplinary proceedings, and damages.
The defendants now move to dismiss, arguing that the court lacks
subject-matter jurisdiction and that the plaintiff has failed to state a
claim on which relief may be granted. The court will not grant the
defendants' motion on these grounds, but on the alternative argument
raised by the defendants. In short, the court will apply the doctrine of
equitable restraint and will grant the defendants' motion to dismiss on
A. The Parties
The plaintiff, Mr. Ford has been an attorney member of the District of
Columbia Bar since 1983. See First Am. Compl. ("Compl.") ¶ 1.
Defendant District of Columbia Bar is an organization of attorneys
licensed to practice law by the D.C. Court of Appeals. See Mot. to Dis.
at 2. The D.C. Court of Appeals established the Board of Professional
Responsibility of the of Columbia Court of Appeals ("the Board"). See
id. The D.C. Court of appoints nine members to the Board, which adopts
rules and procedures, investigates allegations of attorney misconduct,
appoints Hearing Committees to conduct hearings and to submit findings,
and submits recommendations to the D.C. Court of Appeals. See id. at 3.
As the Attorney for the Board, Elizabeth J. Branda supervises staff and
assigns an attorney member of the Hearing Committee as a contact member
to review the Bar Counsel's recommendations for dismissals, informal
admonitions, and formal proceedings. See Compl. ¶ 5.
The Board appoints the Bar Counsel to act as the "disciplinary arm of
the D.C. Courts." See Anderson v. D.C Public Defender Service,
756 F. Supp. 28, 31 (D.D.C. 1991) (citing D.C. Rules Ann. Bar Rule XI.),
vacated in part on other grounds, 980 F.2d 746 (D.C.Cir. 1992). As Bar
Counsel, Joyce E. Peters is responsible for investigating alleged
attorney misconduct and prosecuting disciplinary matters before the
Hearing Committee, the Board, and the D.C. Court of Appeals. See Mot. to
Dis. at 3-4. Traci M. Tait is the Assistant Bar Counsel who investigated
the allegations of professional misconduct involving Mr. Ford. See
Compl. ¶ 7.
B. Investigations and Procedures
The Office of the Bar Counsel is responsible for processing complaints
of attorney misconduct. See Compl. ¶ 6. After the Bar Counsel
investigates allegations of misconduct, it initiates formal disciplinary
proceedings and prosecutes the case before a three-member Hearing
Committee appointed by the Board and in the presence of the attorney
charged with misconduct, i.e., the respondent. See In the Matter of
Dudley v. Williams, 513 A.2d 793, 794 (D.C. 1986). The respondent may
choose to retain counsel. The Hearing Committee then submits findings,
with the record of the proceedings, to the Board of Professional
Responsibility. See id. The Board has the option to schedule oral
arguments and can affirm, modify, remand, or dismiss the charges. The
Board then submits its recommendation and the full record to the D.C.
Court of Appeals. Upon request, the Court of Appeals may also hear oral
argument. See id. Lastly, the Court of Appeals issues a final order. See
id. The D.C. Court of Appeals will adopt the Board's recommendation,
unless it rules that the recommendation is unwarranted or unsupported by
"substantial evidence." See id.
An attorney may file an exception with the Board to the Hearing
Committee's recommendation of disciplinary action. See Mot. to Dis. at
4. In addition, if the attorney disagrees with the Board's findings, the
attorney may file an exception to the Court of Appeals. See id.
C. Mr. Ford's Alleged Ethical Violations
In March 1996, Mr. Ford filed an ethical complaint against attorney
Valerie Bailey with the Office of Bar Counsel. In this complaint, Mr.
Ford alleged that after his association with Ms. Bailey's law practice
ended, she retained client files and client escrow funds belonging to
Mr. Ford. See ¶ 8. The Bar Counsel conducted an inquiry into these
charges. See id. ¶ 10. The Bar Counsel did not issue formal charges
against Ms. Bailey, but did bring formal charges against Mr. Ford, based
on Ms. Bailey's allegations of improper client representation. See Pl.'s
Opp'n to Defs.' Mot. to Dis. ("Pl.'s Opp'n"), Ex. 3. The Bar Counsel then
issued an informal admonition against Mr. Ford is based on the following
District of Columbia Rules of Professional Conduct:
1.1(a): a lawyer must provide competent to a client;
1.1(b): a lawyer must serve a client with skill and
care commensurate with that generally afforded to
clients by other in similar matters;
7.1(a): a lawyer shall not make false or misleading
communication about himself or his services; and
7.5(a): a lawyer shall not use a firm name,
letterhead or other professional designation that
violates Rule 7.1.
Specifically, Ms. Tait, the Assistant Bar Counsel, found that Mr. Ford
incorrectly listed an asset in a probate petition, thereby creating the
possibility of tax and title problems in the future. See Compl. ¶ 20.
She also found that Mr. Ford did not properly complete the abbreviated
probate order and incorrectly identified his client in the notice of
appointment to creditors and unknown heirs. See Pl.'s Opp'n, Ex. 7.
Moreover, Ms. Tait concluded that Mr. Ford misinformed the Probate Court
about which newspaper he published the notice in. See id. The Bar Counsel
also brought charges against Mr. Ford for misleading clients and using
Ms. Bailey's letterhead to give his clients the impression that he was
associated with Ms. Bailey's law firm. See Compl. ¶ 21. Mr. Ford
claims that Ms. Tait did not submit her findings to a Contact Member, as
required by Rule 2.12, before issuing an informal admonition. See id.
Disagreeing with the Bar Counsel's findings, Mr. Ford requested a
formal hearing in October 1996. See id. ¶ 23. In March 1997, the Bar
Counsel filed a Specification of Charges, describing the alleged
violations. See id. ¶ 24. The Hearing Committee set a hearing date
for June 6, 1997. While proceedings were pending, the Bar Counsel
notified the Maryland Attorney Grievance Commission of the pending
disciplinary proceedings. See Pl.'s Opp'n, Ex. 14.
After several continuances, the hearing occurred on April 2, 1998.*fn1
¶ 37. The Hearing Committee heard the testimony of three witnesses and
reviewed nine exhibits submitted by the defendants in support of the
charges against Mr. Ford. See id. ¶ 38. A probate law expert
testified that the erroneous listing of the probate asset was a
"substantial error." See Hearing Comm. Tr. at 159-60. Furthermore, the
expert substantiated the Bar Counsel's claim that Mr. Ford erroneously
filed the probate order with the Probate Court. See id.
After the Bar Counsel rested her case, Nancy Crisman, the Hearing
Committee Chairwoman, stated that:
[T]he Committee is frankly not impressed with the case
against Mr. Ford particularly on Charges A, B and C.
There is some concern on Charge D, and I think that
while it is correct that we can't dismiss any charges
that we would like you to focus in on the last
charge, the questions of using firm letterhead other
indications that you worked for the firm when you
didn't in your testimony.
Id. at 185-86. Mr. Ford then testified on his own behalf.
One year later, the Hearing Committee a recommendation of informal
sanctions against Mr. Ford for incompetent representation, a charge that
Mr. Ford contends he was prohibited from defending. See Hearing Comm.
Recommendation to Sanction ("Recommendation") at 4-6; Compl. ¶ 50.
The Hearing Committee found insufficient evidence to sanction Mr. Ford on
the remaining charges. See Recommendation at 8.
Disagreeing with the Hearing Committee's findings, Mr. Ford filed
exceptions with the Board. The Board heard oral arguments in October 2000
and had not reached a decision by November 2000 when Mr. Ford filed this
A. Legal Standard for Motion to Dismiss
In reviewing a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court must accept all the
complaint's well-pled factual allegations as true and draw all reasonable
inferences in the plaintiffs favor. See, e.g., Pitney Bowes v. United
States Postal Serv., 27 F. Supp.2d 15, 19 (D.D.C. 1998) (Urbina, J.). On
a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing that the court has jurisdiction. See District of
Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431 (D.D.C.
1987). In evaluating whether subject-matter jurisdiction exists, the
court must accept all uncontroverted, well-pleaded facts as true and
attribute all reasonable inferences to the plaintiffs. See Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),
overturned on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Court is not required, however, to
accept inferences unsupported by the facts alleged or legal conclusions
that are cast as factual allegations. See, e.g., Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990).
Moreover, the court need not limit itself to the allegations of the
complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.
1986), vacated on other grounds,
482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, the court may
consider such materials outside the pleadings as it appropriate to
determine whether it has jurisdiction in the case. See Herbert v.
National Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir. 1992).
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need
only provide a short and plain statement of the claim and the grounds
on, which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson,
355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss
under Rule 12(b)(6) tests not whether the plaintiff will prevail on the
merits, but instead whether the plaintiff has properly stated a claim,
See FED. R. CIV. P. 12(b)(6); Scheuer, 416 U.S. at 236, 94 S.Ct. 1683,
overruled on grounds by Harlow, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d
396. Thus, the court may dismiss a complaint for failure to state a claim
only if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations. See Hishon
v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59
(1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir.
1996). Moreover, the court should draw all reasonable inferences in the
nonmovant's favor. See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7
B. The Younger Doctrine
In Younger v. Harris, the Supreme articulated a doctrine based on
principles of comity and federalism. See Younger v. Harris, 401 U.S. 37,
91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Court this notion of
[A] system in which there is sensitivity to the
legitimate interests of both State and National
Governments, and in which the National Government,
anxious though it may be to vindicate and protect
federal rights and federal interests, always endeavors
to do so in ways that will not unduly interfere with
the legitimate activities of the States.
Id. at 44, 91 S.Ct. 746.