Benoit O. Brookens, II, Appellant,
v.
United States, Appellee.
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
...