On Petition for Reinstatement as a Member of the Bar of the District of Columbia Court of Appeals (BDN 077-02).
Before Ruiz and Glickman, Associate Judges, and Nebeker, Senior
Argued September 14, 2004
In 1983, we suspended petitioner John Stanton from practicing law in the District of Columbia. See In re Stanton, 470 A.2d 272 (D.C. 1983) (Stanton I); In re Stanton, 470 A.2d 281 (D.C. 1983) (Stanton II). Before us now is petitioner's fifth request for reinstatement.*fn2 Hearings having been held on that request, the Board on Professional Responsibility recommends that we deny it.
We accept the Board's recommendation of denial for the reasons stated in its report, which is appended to this opinion. As detailed in the Board's report, petitioner has made no serious attempt, despite numerous entreaties and opportunities to do so, to address each of the Roundtree*fn3 factors and thereby demonstrate, by clear and convincing evidence, his fitness to resume practicing law. See D.C. Bar R. XI, § 16 (d). In lieu of such a showing, petitioner has elected to advocate that, in his words, "the lawless District of Columbia Bar Board on Professional Responsibility should be abolished and replaced by a full-time professional disciplinary fact-finding agency with members sworn to uphold the Constitution of the United States and paid from appropriations like civil officers of administrative agencies of the government." We have rejected petitioner's arguments on that score in the past, see, e.g., Stanton VI, 757 A.2d at 91; we see no reason to address them again.
In view of what it terms petitioner's "propensity to pursue reinstatement petitions which he should know fall short of the Roundtree requirements," the Board asks us to order that any future petition for reinstatement filed by petitioner shall be invalid on its face if it does not proffer certain specified evidence. Bar Counsel supports the Board's request, which is motivated by a not unfounded concern that otherwise petitioner "may, as soon as he is permitted to do so by D.C. Bar R. XI, § 16 (g), again burden the system with another inadequate petition for reinstatement."
The precise factual proffer that the Board asks us to require of petitioner is not required normally as part of a reinstatement petition. In effect, the Board has furnished petitioner a road map that he might be well advised to follow should he choose to apply again for reinstatement. However, without knowing what other evidence of fitness petitioner might offer, we are loath to make a preemptive determination of the exact evidentiary showing that he will need to make.*fn4 We do not need to impose such a precondition for the Board to have the ability to protect the disciplinary system from a frivolous or insufficient petition. As we recently explained in In re Morrell, No. 03-BG-1273, slip op. at 7-10 (D.C. October 7, 2004), a reinstatement petition is required to proffer clear and convincing evidence pertaining to each of the material factors that bear upon the petitioner's fitness. A petition that fails to contain the requisite factual proffer as to each material issue is subject to dismissal at the outset as insufficient on its face. See D.C. Bar Rule XI, § 16 (d); Board Rules 9.1, 9.2; see also Stanton VI, 757 A.2d at 89. The Board therefore possesses all the authority it needs to dismiss a factually deficient petition from this or any other petitioner seeking reinstatement.
For the reasons set forth in the Board's Report and Recommendation, John Stanton's petition for reinstatement is hereby denied.
Prior Proceedings: No. 83-142 (Newman, C.J., Nebeker, J., Mack, J.) No. M-124-82 (Nebeker, J., Ferren, F., Belson, J.)
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This matter is before the Board on Professional Responsibility (the "Board") on Petitioner's fifth petition for reinstatement ("Fifth Petition" or "Petition") since being suspended from practice in 1983.*fn1
Hearing Committee Number Three, after holding a hearing at which Petitioner testified but produced no other witnesses, issued a comprehensive and well-reasoned report which recommended denial of the petition. Petitioner filed an exception to the Report. See Board Rule 13.3.
Petitioner's submissions to the Board and his conduct at oral argument before the Board confirm the correctness of the Hearing Committee's recommendation and, further, demonstrate that Petitioner has decided that he would rather engage in a diatribe against the disciplinary system than take the actions necessary to meet the requirements for readmission. Accordingly, the Board recommends not only that the Petition be denied, but also that the Court should, in its Order entered herein, provide that a future petition by Petitioner shall be "insufficient or defective on its face" under D.C. Bar R. XI, § 16(d) unless it demonstrates that Petitioner has sincerely and effectively addressed the deficiencies in his presentation in support of this Petition and contains proffers of testimony and other evidence to establish Petitioner's present character and competence to return to the practice of law.
We first address the nature and character of Petitioner's misconduct as found by the Board and the Court in the two underlying disciplinary proceedings. Since this is the latest in a series of petitions for reinstatement, we review salient portions of Board Reports and the Court's decisions on the first four petitions. Next, we present findings of fact, made by the Hearing Committee and supplemented by the Board, based upon the instant Petition. Finally, we set out our analysis and recommendation. I. Nature and Circumstances of the Misconduct
The two disciplinary proceedings that resulted in Petitioner's suspension involved misconduct with respect to four clients. As to each of the four clients, Petitioner was found to have violated two rules of the former District of Columbia Code of Professional Responsibility, Disciplinary Rules 6-101(A)(3) (neglect) and 7-101(A)(1) (intentional failure to seek client's lawful objectives).
Petitioner's misconduct was found to be serious. The complaining clients were named Faison, Johnson, Benjamin, and Wilson. We review each in turn.
Faison. Petitioner's misconduct with regard to client Faison did not involve the issue upon which Petitioner's attention has been focused in his successive reinstatement petitions, i.e., client guilty pleas, but rather consisted of neglect. He failed to file a bond review motion and failed to take any meaningful action on behalf of his client. The Board's Report summarized:
Those facts show that in the Faison case respondent failed to file a bond review motion when requested to do so by his client; failed to communicate in any significant fashion with his client; failed to investigate the facts of his client's case.
In re Stanton, Bar Docket Nos. 31-81 & 38-81 at 5 (BPR Feb. 15, 1983), aff'd, 470 A.2d 272, 275 (D.C. 1983) (per curiam) (adopting and appending the Board's Report and Recommendation).
The Board's conclusion as to Petitioner's failure to investigate was quite specific, not at all in the nature of "second-guessing" or "Monday morning quarterbacking,"*fn2 as asserted by Petitioner.
Respondent himself admitted that the government's case against Faison was speculative in nature. Nevertheless respondent made no effort to locate any witnesses helpful to Faison who could have bolstered his case. Respondent compounded the seriousness of his inactivity by refusing to withdraw as Faison's lawyer when notified by Bar Counsel of Faison's complaint against him. To compound matters, respondent refused to take any further action on behalf of Faison after the complaint was filed by Faison. Respondent sought no informal discovery from the prosecutor, initiated no plea negotiations, undertook no investigation, and did not speak to his client except for a brief courthouse cellblock visit when Faison was in court in connection with another case.
In re Stanton, 470 A.2d at 275.
Johnson. Petitioner's misconduct as to client Johnson was different, but "equally disturbing" to the Board. Id. at 276. Client Johnson had a "hopeless case on a drug charge." Id. Despite the fact that Johnson repeatedly advised Petitioner of his desire to plead guilty, on the trial date:
[Petitioner] refused in open court to take any affirmative action to further his client's desires in this matter.
Id.The Board found from a review of the transcript that Petitioner "stubbornly refused to give his client even minimum assistance in entering his plea." Id. After Johnson showed confusion, the trial judge refused to accept the guilty plea and Johnson proceeded to trial, and was found guilty.*fn3 Id. The Board expressed its view of the seriousness of Petitioner's misconduct:
Far from offering advice and guidance to the client in order to assist him in achieving his lawful objective, respondent said nothing to his client beyond several times urging him to tell the judge what was on his mind. This conduct falls so far below the standard expected of attorneys in assisting their clients that we have not the slightest hesitation in condemning it as neglect and as a wilful [sic] failure to pursue the client's lawful objectives. Respondent's conduct embodies a view of the lawyer's role that we simply cannot accept.
Respondent's view seems to be that in a case of disagreement between respondent and his client over the proper course of action to follow, the client is on his own in attempting to follow any course not concurred in by respondent. We think it is clear that, at least as to the fundamental decisions concerning the client's case, it is the respondent's desires, so long as they are lawful, that must control.
Benjamin. The third disciplinary complaint, involving client Benjamin, charged failure to seek bond review, failure to communicate, and a refusal to assist the client in entering into a government plea bargain. Petitioner was requested twice by his client to seek review of her bond, first by letter from jail and second by telephone. He took no action and Ms. Benjamin remained incarcerated for seventeen days until her son raised the necessary bail money.
Ms. Benjamin had several charges pending, and she was represented by another attorney on one such charge. The U.S. Attorney made a plea offer to Ms. Benjamin. Respondent opposed the plea offer and her other attorney recommended it. After considering the differing advice from her two lawyers, Ms. Benjamin decided to accept the government's plea offer. At the hearing, at which Ms. Benjamin was to plead guilty, Petitioner volunteered to the Court that he had advised her that the settlement was "improvident and unwise" and asked the Court to take this fact into account. In re Stanton, 470 A.2d at 284. The Court proceeded to accept the guilty plea. The Board expressed its view of the seriousness of this misconduct as follows:
Respondent's conduct, which is made out by the most clear and convincing evidence possible -- his own words transcribed in open court -- seems to us to be a serious violation of the Disciplinary Rules. No possible purpose of his client's was served by respondent's spreading his own personal views of the matter on the record after the client had decided to reject his advice. It is not a lawyer's place to seek to vindicate his own views, as opposed to those of his client, before a judge.
Only the wisdom and vigilance of the presiding judge prevented respondent's intemperate behavior from frustrating his client's will. The fact that respondent did not succeed in frustrating his client's attempted plea does not weigh heavily in his favor.
On two separate occasions in the instant case, respondent simply overruled his client's stated views on the grounds that he knew better than the client did.
Wilson. Petitioner's 1983 discipline also resulted from his representation of client Wilson. The gravamen of the misconduct was neglect, resulting from Petitioner's failure to investigate his client's case. The Board summarized:
As the Committee pointed out, respondent undertook no investigation or discovery within the period provided for filing a motion to suppress. Since the crime took place at 3:45 a.m. in the morning in an alley, there was a distinct possibility (as respondent himself apparently recognized by his plan to "knock down" the government's case) that there could have been a misidentification. Nevertheless, respondent did not attempt to interview the police officers or the complaining witness; he did not examine the torn shirt to see whether the tear was compatible with the version offered by the witness or by his client; he did not investigate or send someone to investigate the scene of the crime to determine whether lighting at the time of the offense made identification possible.
Respondent made a determination, on his own, that no investigation was necessary because his client was guilty.
In making its sanction recommendation, the Board found "that a pattern emerges in Respondent's conduct that is most disturbing." In re Stanton, 470 A.2d at 278. The pattern involved the following factors. The Board noted:
First, Respondent arrogates to himself the role of decision-maker in his representation of his clients.
Second, Respondent's habit of keeping his clients largely in the dark about the progress of their cases is deplorable.
Third, although not the basis for any disciplinary violation in this case, we think that Respondent's arrogant and abusive manner toward his clients is relevant to the issue of sanction.
Fourth, we are impressed by the fact that respondent does not seem to have the slightest doubt about the correctness of his behavior in routinely overruling his clients' judgments. In his arguments in the various hearing committees before which he has appeared and in this Board and in the papers he has filed, respondent has taken an extreme position: namely, that he is entitled to exercise his professional judgment in almost every situation regardless of the views of his client. The result of this extreme view is particularly harsh where respondent does not communicate fully or well with his clients. In these situations, the client has little or no opportunity to make his views known, and when he does, his judgment is overruled by his attorney.
II. Previous Petitions for ...