Brookens v. United States

          Argued January 4, 2018

          Appeal from the Superior Court of the District of Columbia (CCC-10-11) (Hon. José M. López, Trial Judge).

          Johnny Barnes, with whom Melodie V. Shuler was on brief, for appellant.

          David P. Saybolt, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, Elizabeth Trosman, Chrisellen R. Kolb, and Cynthia G. Wright, Assistant United States Attorneys, were on the brief for appellee.

          Before Thompson and Easterly, Associate Judges, and Ferren, Senior Judge.

          Easterly, Associate Judge.

         Over thirty years ago, in 1986, appellant Benoit Brookens was found guilty of criminal contempt based on his unauthorized practice of law and was permanently enjoined from engaging in specified activities. In 2011, he was charged with nineteen counts of criminal contempt for violating the 1986 injunction and was ultimately convicted on four counts. We now reverse. Two of the four contempt counts are barred by the three-year catchall statute of limitations set forth in D.C. Code § 23-113 (a)(5), which we now hold applies to criminal contempt charges brought under D.C. Code § 11-944. The remaining two contempt counts cannot stand because, although the evidence may indicate that Mr. Brookens violated District of Columbia Court of Appeals Rule 49 as amended in 1998, the evidence fails to establish that Mr. Brookens engaged in the contemptuous conduct with which he was actually charged-conduct prohibited by the 1986 injunction.

         I. Facts and Procedural History

         A. The 1986 Contempt Conviction and Injunction

         Mr. Brookens has been a member of the bar in other states but has never been licensed to practice law in the District of Columbia. In 1986, he was convicted after a bench trial of criminal contempt based on his unauthorized practice of law in violation of Rule 49. In re Benoit Brookens, No. 84-98 (D.C. Super. Ct. Aug. 1, 1986).^[1] In a Memorandum Opinion, the trial court found that, Mr. Brookens had "represented persons and organizations other than himself before the courts of the District of Columbia and before the Rental Accommodations Office on many occasions, in many different cases, " mostly involving the tenants of Dorchester House, an apartment building in which Mr. Brookens himself at one point resided. Based on his representation of others in court and his broader identification of himself as a lawyer "to the general public, "^[2]the trial court found that Mr. Brookens had "regularly engaged in the practice of law" in violation of then-Rule 49.^[3] But the trial court distinguished this culpable conduct from Mr. Brookens's "activities before the Rental Accommodations [O]ffice." The court explained that these activities had to "be considered in a different light" because they were not prohibited by Rule 49:

Because Rule 49 does not deal with representation of others before [District of Columbia] administrative agencies, and because in this instance [Mr. Brookens's] activities before the Rental Accommodations Office were authorized under the rules of that agency, the court concludes that [Mr. Brookens] has not engaged in the unauthorized practice of law, and has not violated Rule 49, by representing persons other than himself before the Rental Accommodations Office.

         Setting aside his conduct before District agencies, the trial court determined that Mr. Brookens should be penalized for his "past violations of Rule 49 (b), and . . . enjoined from future violations of Rule 49 (b)." Accordingly, the trial court, in its Judgment and Order, fined Mr. Brookens $300 and "permanently enjoined and prohibited [him] from":

(1) representing any person other than himself . . . in any court in the District of Columbia unless he is a member of the bar of the court in which such representation takes place; (2) using such terms as "lawyer, " "attorney, " "counsel, " "counselor" or "counsellor, " "Esq." or "Esquire" to refer to himself in such manner as to convey the impression that he is entitled or authorized to practice law in the District of Columbia, or in any way holding himself out as authorized or qualified to practice law in the District of Columbia; (3) engaging in any manner in the practice of law in the District of Columbia, as that term is defined in Rule 49 (b)(3) of the General Rules of this court; and (4) engaging in any other conduct prohibited by Rule 49 (b)(2) of the General Rules of this court.

         B. The Appeal of the 1986 Contempt Conviction and Injunction

         Both Mr. Brookens and the Committee on the Unauthorized Practice of Law (CUPL) appealed-Mr. Brookens seeking to overturn the determination that he had violated Rule 49 in any way; the CUPL seeking "reversal of the finding that [Mr.] Brookens'[s] activities before a District of Columbia agency did not constitute the unauthorized practice of law." Brookens, 538 A.2d at 1122. This court affirmed the challenged judgment and order "in all respects." Id. at 1127.

         Specifically, with respect to the CUPL's appeal, we rejected the argument that Mr. Brookens had engaged in the unauthorized practice of law "as defined in [Rule] 49 (b), " by virtue of his appearances on behalf of clients before District agencies. Id. at 1125. We not only upheld agency regulations authorizing nonlawyers "to appear on behalf of clients, " id., we also left in place the trial court's determination that "Rule 49 does not deal with representation of others before [District of Columbia] administrative agencies, " observing that "[w]hile it is clear that this court is empowered to define the practice of law so that it either excludes or includes lay representation before agencies, it is also true that such an undertaking implicates important public policy questions." Id. at 1127. We further noted that "administrative review of [Rule] 49 is currently and formally underway by this court, the affected agencies, and the Committee, " and stated that we would not "interrupt the progress that has already been made in solving the apparent conflict between the rules of this court and the regulations of some District of Columbia agencies." Id.

         C. The Revision of Rule 49

         Rule 49 was eventually revised in 1998. As modified, it governs conduct before District agencies.^[4] The definition of the "[p]ractice of law" extends beyond conduct in "court" to include, inter alia, "[preparing any . . . pleadings of any kind . . . for filing in any court, administrative agency or other tribunal, " D.C. App. R. 49 (b)(2)(D) (2017) (emphasis added), and "[a]ppearing or acting as an attorney in any tribunal, " D.C. App. R. 49 (b)(2)(C) (2017) (emphasis added).

         D. The 2011 Criminal Contempt Prosecution

         In April 2011, twenty-five years after the issuance of the 1986 injunction and thirteen years after the revision of Rule 49, the government charged Mr. Brookens with nineteen counts of contempt under D.C. Code § 11-944 (a) (2001), ^[5]for violating the 1986 injunction. Every count in the information related to his continued representation of Dorchester tenants before two District of Columbia agencies: the Department of Consumer and Regulatory Affairs (DCRA) and Office of Administrative Hearings (OAH). Ultimately, the government proceeded on only four counts. Two (counts fifteen and sixteen) alleged that Mr. Brookens violated the 1986 injunction by holding himself out as an attorney by signing "Esquire" on two 2005 pleadings he filed with the DCRA. A third (count eighteen) alleged that, "[o]n at least one occasion" between January 1996 and June 2008, Mr. Brookens violated the 1986 injunction by "engaging in the unlawful practice of law in violation of Rule 49 (b)(2)." And, a fourth (count nineteen) alleged that, during the same twelve-year time period, Mr. Brookens violated the 1986 injunction by "representing a person other than himself (specifically Dorchester Tenants and Dorchester Tenants' Association) in the District of Columbia without being a member of the District of Columbia Bar." ^[6]

         Prior to trial, Mr. Brookens moved to dismiss all four contempt counts. Among other things, he argued that these charges were time-barred by the catchall three-year statute of limitations for criminal misdemeanors set forth in D.C. Code § 23-113 (a)(5) (2001).^[7] He also argued that the 1986 injunction had not prohibited his conduct before administrative agencies and that his conduct was authorized under the agencies' rules. The trial court denied the motion, concluding that D.C. Code § 23-113 did not apply to contempt charges under D.C. Code § 11-944 and, even if § 23-113 did apply, the charges were brought within three years of Mr. Brookens's "12 years of engaging in criminal contempt." The court likewise rejected Mr. Brookens's argument that he could not be guilty of contempt because his conduct before administrative agencies was authorized, reasoning that Mr. Brookens "was not charged with the unauthorized practice of law, but with [c]riminal [c]ontempt for violating a restraining order." The trial court further explained its understanding that this court had "permanently enjoined [Mr. Brookens] from representing himself as authorized to practice law in the District of Columbia" and that "[r]egardless of whether he was permitted to represent a client before an administrative agency, he was still enjoined from representing himself as authorized to practice law."

         At trial, the government presented evidence that Mr. Brookens had represented Dorchester tenants before District agencies in a number of related cases over a number of years and, inter alia, had signed pleadings identifying himself as counsel and had sought attorney‘s fees. The government argued that this conduct violated Rule 49. The government relied on the 2008 edition of the rule, a copy of which it submitted to the court over Mr. Brookens‘s objection that it was not the "proper" Rule 49-i.e., that it was not the operative rule when the 1986 injunction was issued. Mr. Brookens did not meaningfully challenge the government‘s evidence regarding his particular conduct. Instead, consistent with his motion to dismiss, he argued that his actions were not prohibited by the 1986 injunction and were "authorized" by agency regulations at the time and by various hearing examiners and administrative law judges. ^[8] As a corollary to this argument, Mr. Brookens argued that because he did not understand the injunction to prohibit him from practicing law before agencies, he did not have the requisite intent to willfully violate the injunction.

         The trial court found Mr. Brookens guilty on all four counts of contempt, sentenced him to four concurrent sentences (suspended) of 180 days' incarceration, and enjoined him from holding a job "in any capacity, in a District of Columbia law office." This appeal followed.^[9]

         II. Analysis

         Mr. Brookens raises a myriad of arguments on appeal, but we address only two: his challenge to the criminal contempt charges as time-barred under the District's statute of ...