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Sitcov v. Dist. of Columbia Bar

October 20, 2005

MICHAEL SITCOV, PETITIONER,
v.
DISTRICT OF COLUMBIA BAR, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 308692)



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

ORIGINAL ACTION

Argued April 12, 2005

Before SCHWELB and RUIZ, Associate Judges, and KING, Senior Judge.

By means of a "Petition for Original Jurisdiction" filed in this court, Michael Sitcov, a member of the District of Columbia Bar, challenges his administrative suspension by the Bar for nonpayment of dues and the Bar's refusal to reinstate him retroactively to the date of his suspension. Sitcov claims, inter alia, that the Bar failed to comply with certain provisions of the Distict of Columbia Bar Rules by suspending him without proper notice and by reinstating him prospectively but declining to reinstate him nunc pro tunc upon his payment of delinquent dues and associated penalties.*fn1 In addition, Sitcov asserts that Article III § 2 (a) of the District of Columbia Bar by-laws, on which the Bar relied to support its denial of retroactive reinstatement, contravenes this court's Bar Rules and case law, and he requests declaratory relief to that effect. We disagree with Sitcov's contentions and sustain the Bar's actions.

I. FACTUAL BACKGROUND*fn2

Sitcov, who is presently employed as an attorney in a supervisory position with the United States Department of Justice ("DOJ"), was admitted to the District of Columbia Bar in 1980. He remained a member in good standing until 2002, when he failed to pay the annual membership dues, which are due and payable on July 1 of each year and must be paid within ninety days of that date. Pursuant to the Bar's by-laws, Sitcov's membership was suspended on September 30, 2002, as a result of his failure to make timely payment of his dues for the year 2002.*fn3 In July 2003, and again in July 2004, Sitcov failed to pay dues for those two years.

Sitcov alleges that he was not advised of his suspension by anyone until November 2, 2004, more than two years after it occurred. On that date, he was contacted regarding the matter by the DOJ's Office of Professional Responsibility. Upon learning that his membership had been suspended, Sitcov asked his wife, Rose DiNapoli, who generally paid the couple's bills, to determine whether, as alleged by the Bar, the required dues payments had not been made. After examining her records, Ms. DiNapoli confirmed that her husband's Bar dues for the past three years had not been paid. According to Sitcov, however, his wife was unable to locate a notice or invoice from the Bar regarding payment for any of the years for which Sitcov was delinquent. On November 8, 2004, Sitcov tendered payment of all unpaid dues for the previous three years, together with penalties that had been assessed against him pursuant to the by-laws. Sitcov was immediately reinstated as an active member of the Bar, effective on the date of payment.

On February 15, 2005, after encountering significant professional difficulties at the Department of Justice as a result of his suspension,*fn4 Sitcov requested that his reinstatement be made nunc pro tunc, i.e., retroactive to the date of suspension. By letter dated February 25, 2005, the Bar's Membership Committee denied Sitcov's request. The Committee explained that, under the Bar's by-laws, a member may be reinstated retroactively only if "proper procedures were not used or [if] there was an actionable error or omission on the part of the staff." Although the Committee acknowledged that the Bar had transmitted notices of delinquency to Sitcov at an incorrect e-mail address, it concluded that this error on the Bar's part did not warrant retroactive reinstatement. The Committee explained that "the use of e-mail by the Bar in the performance of its billing and collection functions is not required by the Bar's Rules or by-laws, but rather its use was added as a courtesy to our members."

Sitcov challenged the Membership Committee's refusal to reinstate him nunc pro tunc by appealing the decision to the Bar's Board of Governors (the "BOG"). On March 8, 2005, the BOG held a hearing in executive session, and Sitcov was provided with the opportunity, through counsel, to present his position. On March 14, 2005, by a vote of 10-7, the BOG denied Sitcov's request for retroactive reinstatement.

On March 15, 2005, Sitcov filed a civil complaint against the Bar in the United States District Court for the District of Columbia, alleging constitutional violations as well as noncompliance with this court's Bar Rules. Sitcov requested the District Court to award both injunctive relief and damages. Sitcov also moved the court to issue a temporary restraining order, asserting that the BOG's denial of his request for reinstatement nunc pro tunc had caused him irreparable injury. Hearings on the request for a temporary restraining order were held on March 16 and 18, 2005. The judge, Honorable Emmet G. Sullivan, expressed concern that the proper disposition of some of Sitcov's claims turned on questions of District of Columbia law and on the Rules of this court. The judge therefore concluded that Sitcov's case should be addressed, in the first instance, by the District of Columbia Court of Appeals. On March 16, 2005, the BOG consented to the entry of an interim order reinstating Sitcov, nunc pro tunc to the date of his suspension; the interim order was to expire on April 14, 2005. On March 18, 2005, Judge Sullivan issued a second order which provided that the District Court would "abstain and temporarily stay proceedings in this case in order to afford the District of Columbia Court of Appeals an opportunity to address [Sitcov's] claims in the first instance."

On March 22, 2005, in light of Judge Sullivan's ruling, Sitcov filed a "Petition for Original Jurisdiction"*fn5 in this court. He alleged, inter alia, that his suspension, the Bar's refusal to reinstate him nunc pro tunc, and the provision of the by-laws on which the BOG had relied, were contrary to this court's Rules governing bar membership. On April 12, 2005, following oral argument, we issued an order temporarily reinstating Sitcov nunc pro tunc pending further order of this court. We also requested supplemental briefing regarding whether this court has original jurisdiction to entertain Sitcov's claims. Supplemental submissions were duly filed, and the matters before us are now ready for decision.

II. JURISDICTION

The jurisdictional issue in this case arises in an unusual posture. The plaintiff, who initially brought his suit in the United States District Court, and who filed the proceedings in this court only in the wake of the District Court's action, now asserts, in effect, that this court lacks original jurisdiction to entertain the case.*fn6 The Bar, on the other hand, contends that we do have jurisdiction, and asks us to decide not only the questions arising under our Rules, but Sitcov's constitutional claims as well. Whether this court, as an appellate tribunal, has original jurisdiction to hear the case in the absence of a statute authorizing us to do so is not a simple question; litigants are seldom permitted to bring their grievances initially to the highest court in the jurisdiction. Nevertheless, we conclude that the matter is properly before us.

As Sitcov correctly points out in his post-argument brief, we cannot rely in this case on the more conventional bases of jurisdiction:

Mr. Sitcov is not seeking review of any action by the Superior Court for the District of Columbia. Cf. Rules 3 and 5 of the District of Columbia Court of Appeals Rules . . . . Nor is Mr. Sitcov seeking review of an action by a District of Columbia "agency." Cf. Rule 15. Similarly, Mr. Sitcov is not seeking a writ of mandamus or prohibition directed to a Superior Court Judge or a District of Columbia officer. Cf. Rule 21(a)(1). And although this Court has jurisdiction to consider certified questions of law from the United States Supreme Court, a Court of Appeals of the United States or the highest appellate court of any state, see Rule 22, it is well-settled that the District Court cannot (and did not purport to) certify a question of law to this Court. See D.C. Code § 11-723; Georgetown University v. Sportec International, Inc., 572 A.2d 119 (D.C. 1990); 3307 M St. Partners v. Commonwealth Land Title Ins. Co., 782 F. Supp. 4 (D.D.C. 1992). Finally, Mr. Sitcov is not complaining about the denial of an application for admission to the Bar, cf. Rule 46(g), and this is not an action brought by the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law against Mr. Sitcov, cf. Rule 49(e).

We agree with the Bar, however, that the foregoing litany does not end the inquiry. The District of Columbia Bar was established by this court as an "arm of the court." See D.C. Code § 11-2501 (2001). Section 11-2501 provides that "[t]he District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion."*fn7 In 1971, exercising this statutory authority, as well as the "inherent power of the Court over members of the legal profession," this court promulgated the Rules for the District of Columbia Bar. On April 1, 1972, we officially "assume[d] jurisdiction over the practice of law" in the District of Columbia.*fn8 Although there is no statute or rule expressly providing for direct review by this court of a decision of the BOG, we conclude that this court necessarily has the authority to review a decision by an entity which this court created, when that decision pertains to an issue with respect to which the court is vested with the final authority. In essence, although the Bar is an "arm of the court," the court itself is responsible for the regulation of the legal profession in the District of Columbia, and must therefore have the authority to oversee the management of the profession by that "arm." Moreover, if we were to hold that this court lacks original jurisdiction over Sitcov's non-federal claims, then he would have no judicial remedy at all under District of Columbia law, regardless of the merits of his position. [Alvin S.] Kennedy v. ...


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