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In re Johnson

Court of Appeals of Columbia District

July 28, 2016

In re Dana Johnson, Petitioner.

          Argued April 14, 2016

         On Report and Recommendation of the Board on Professional Responsibility (BDN-39-15)

          Dana W. Johnson, pro se.

          Julia L. Porter, Senior Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.

          Before Blackburne-Rigsby and McLeese, Associate Judges, and Reid, Senior Judge.

          PER CURIAM

         Pro se petitioner Dana W. Johnson was disbarred in 2002, In re Johnson (Johnson I), 810 A.2d 917 (D.C. 2002) (per curiam), and this court denied his first petition for reinstatement in 2014, In re Johnson (Johnson II), 103 A.3d 194 (D.C. 2014). Mr. Johnson brought this second petition for reinstatement before the Board on Professional Responsibility ("the Board") after multiple failed attempts to file a compliant affidavit with the Board pursuant to D.C. Bar R. XI, § 14 (g).[1] Mr. Johnson asserted that his last two affidavits filed in March 2015 and August 2015 were "collectively compliant" and requested that his affidavits receive nunc pro tunc treatment dating back to May 2001 when he filed his first affidavit, which would allow his requisite five year period of disbarment[2] to run from that date. The Board found that the last two affidavits were still not compliant, refused to entertain any further affidavits submitted for the purpose of receiving nunc pro tunc treatment, and submitted its recommendation to this court to dismiss Mr. Johnson's second petition for reinstatement. We adopt the recommendation of the Board.

         I. Factual Background

         This is Mr. Johnson's second petition for reinstatement. In brief, the Maryland Court of Appeals disbarred Mr. Johnson in April 2001, [3] and this court imposed reciprocal discipline and disbarred him in the District of Columbia in November 2002.[4] Johnson I, supra, 810 A.2d at 917. Over the course of approximately fifteen years, Mr. Johnson made eight attempts to comply with D.C. Bar R. XI, § 14 (g), which requires an attorney, within ten days after the date of disbarment, to file an affidavit that, inter alia, demonstrates that he has fully complied with the "core requirements”[5] of D.C. Bar R. XI, § 14 (a)-(d). Specifically relevant to this case, the core requirement found in 14 (a) mandates that an attorney who is disbarred notify all clients in any pending matters of his disbarment and advise such clients to seek legal advice elsewhere. In addition to verifying compliance with the "core requirements" of 14 (a) through (d), a disbarred attorney must list in the 14 (g) affidavit all other state and federal jurisdictions to which the attorney is admitted to practice. See D.C. Bar R. XI, § 14 (g)(2).

         In November 2014, this court dismissed Mr. Johnson's first petition for reinstatement because his first five 14 (g) affidavits were noncompliant for failing to demonstrate that he fully satisfied the 14 (a) core requirement to notify clients of his disbarment. See Johnson II, supra, 103 A.3d at 199. Specifically, he did not provide proof that he gave notice to an individual whom he represented in a 2001 arbitration proceeding, claiming that he did not have records of the representation and could not recall the individual's name from memory. Id. at 195-97. On January 29, 2015, Mr. Johnson filed a second petition for reinstatement with the Board, along with a sixth 14 (g) affidavit. The sixth affidavit failed to correct the deficiencies of the previous five affidavits. Mr. Johnson then filed a seventh 14 (g) affidavit on March 4, 2015, in which he claimed that he was still unable to recall the individual's name from the 2001 arbitration. But, he asserted that the individual was aware of his disbarment and still opted to have Mr. Johnson represent him in the arbitration in a non-legal capacity.

         On August 5, 2015, the Board issued an order dismissing Mr. Johnson's second petition. The Board concluded that Mr. Johnson satisfied the notice requirement in 14 (a) "to the extent he [was] able to do so" because he was unable to name the individual from the 2001 arbitration, and that was "unlikely to change." To demonstrate full compliance with 14 (g), however, the Board required Mr. Johnson to correct a false statement in his March 2015 affidavit. Specifically, in response to 14 (g)(2), which requires a disbarred attorney to list "all other state and federal jurisdictions to which [he] is admitted to practice, " Mr. Johnson included the following statement:

At the time of entry of the order of suspension, the complete list of the state and federal jurisdictions and administrative agencies to which I was admitted to is: 1) the U.S. District Courts for the District of Columbia and the Eastern District of Virginia. I am still admitted to those jurisdictions. 2) I was admitted to the bar of the Commonwealth of Virginia but my license to practice there was revoked in approximately 2002 and is still revoked.

         This statement was false. Mr. Johnson was not admitted to practice in the United States District Court for the District of Columbia because he was disbarred by that federal court in August 2002. Mr. Johnson argued to the Board that he never received the order of disbarment because he was forced to foreclose his home and had no fixed address following his disbarment. However, Mr. Johnson should have known, pursuant to the Local Civil Rules of the United States District Court for the District of Columbia, that he would be automatically suspended and ordinarily disbarred by that federal court upon being disbarred by this court in 2002. See D.D.C. Local Rule 83.16 (c)(1), (4).

         The assertion that he was admitted to practice in the United States District Court for the Eastern District of Virginia was also false. Mr. Johnson's license to practice in the Commonwealth of Virginia was revoked on June 18, 2001, which likewise made him ineligible to practice in the United States District Court for the Eastern District of Virginia. See E.D. Va. Local Civil Rule 83.1 (A). Mr. Johnson was still listed on the United States District Court for the Eastern District of Virginia's membership list at the time he filed his March 2015 affidavit only because he failed to report the revocation of his Virginia license to that federal district court. Indeed, on March 30, 2015, the Clerk's Office in the United States District Court for the Eastern District of Virginia removed Mr. Johnson from its membership list upon learning of his revoked Virginia license from the District of Columbia's Disciplinary Counsel. The Board stated that, should Mr. Johnson correct the false statement about his bar membership or explain why that statement was true, his affidavit would receive nunc pro tunc treatment to March 4, 2015.

         On August 18, 2015, Mr. Johnson filed a supplemental affidavit claiming that the statements about his bar memberships in his March 2015 affidavit were true "to the best of his knowledge and belief" He did not address the August 2002 order of disbarment from the United States District Court for the District of Columbia in the affidavit, nor did he respond to the fact that the June 2001 revocation of his license in the Commonwealth of Virginia made him ineligible to practice in the United States District Court for the Eastern District of Virginia. Instead, he continued to assert that he had membership in both federal district courts, which he claimed he confirmed "by telephoning and receiving a verbal confirmation from [each] respective clerk's office earlier [that] year, prior to filing his March 4, 2015, [a]ffidavit.”

         On October 29, 2015, the Board issued a supplement to its August 5, 2015, order refusing to accept Mr. Johnson's August 18, 2015, supplemental affidavit because, even if he "relied in good faith on the 'verbal confirmation' of his bar memberships by the [respective] federal court clerks['] [offices] when he prepared his March [2015] affidavit, " he should have corrected the false statement in his August 2015 affidavit, after Disciplinary Counsel "supplied evidence that [he] was either disbarred or ineligible to practice before those courts." Finding that no further opportunity to correct was in order, the Board stated that Mr. Johnson was "not entitled to have the time of his disbarment run, nunc pro tunc, to the date of his March 4, 2015 affidavit" and refused "to entertain further attempts by [Mr. Johnson] to supplement his [14 (g)] affidavit in order to obtain nunc pro tunc treatment of his period of disbarment." Mr. Johnson filed exceptions to the Board's August 5, 2015, and October 29, 2015, orders in this court, arguing that his affidavits were collectively compliant and requesting nunc pro tunc treatment back to May 18, 2001, the date of his first affidavit.

         II.Analy ...


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