In re Glenn H. Stephens

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-BG-882
IN RE GLENN H. STEPHENS, III,
RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 472780)
On Report and Recommendation of the
Board on Professional Responsibility
(Board Docket No. 17-BD-028)
(Disciplinary Docket Nos. 2015-D330,
2016-D081, 2016-D234, & 2016-D369)
(Submitted September 29, 2020 Decided March 25, 2021)
Before GLICKMAN and DEAHL, Associate Judges, and RUIZ, Senior Judge.
Opinion for the court by Associate Judge GLICKMAN.
Concurring opinion by Associate Judge DEAHL at page 11.
Dissenting opinion by Senior Judge RUIZ at page 15.
GLICKMAN, Associate Judge: In the present matter, the Board on Professional
Responsibility recommends that respondent Glenn H. Stephens, III be disbarred on
2
consent.1 The recommendation is not unanimous; two Board members dissent
because respondent refused to submit the affidavit normally required for a consent
disbarment by D.C. Bar R. XI, § 12(a). However, choosing not to participate in any
way in the disciplinary proceedings against him, respondent explicitly and
emphatically asked to be disbarred and declined to retract that request when the
Board afforded him the chance to do so. Moreover, neither respondent nor
Disciplinary Counsel takes exception to the Board majority’s recommendation.
Under these circumstances, and for the reasons that follow, we accept that
recommendation and disbar respondent on consent.
Respondent was personally served with the specification of charges in this
matter in April 2017. The charges arose out of respondent’s representation of
himself and various clients in litigation and related proceedings. Respondent did not
file an answer to the charges or any other pre-hearing documents. Instead, on March
1, 2018 (the deadline for exchanging proposed hearing exhibits), respondent sent an
1
For his failure to cooperate with a disciplinary investigation in another, still-
pending matter, this court suspended respondent in November 2018 pursuant to D.C.
Bar R. XI, § 3(c). In re Stephens, D.C. App. No. 18-BS-966.
3
email to Disciplinary Counsel with the subject line “Maybe I wasn’t clear . . .”2; it
read as follows (emphasis in the original):
Please don’t kill trees, waste taxpayer resources and ODC
personnel on me. ODC has no credibility or legitimacy to
me. Or the drivel you generate. You are simply dishonest
lawyers who do nothing to regulate dishonest lawyers.
And racists to boot. Rather than wasting time, money, and
paper on your sophistries, please disbar me. Disbarment
by ODC would be an honor. To date, aside from
competing in the triathlon world championships, my
greatest honors are my PhD from UCLA and my law
degree from Boalt. But a disbarment letter from ODC will
be framed and go up right alongside those diplomas.
Please do me the honor of disbarring me. I will be so very
very proud. Glenn
Disciplinary Counsel presented its evidence to an Ad Hoc Hearing Committee
at a hearing that lasted four days.3 Respondent did not participate in the hearing,
either personally or through counsel, and he did not file a post-hearing brief. In a
252-page report, the Hearing Committee found that respondent had engaged in a
pattern of unethical advocacy and abuse of the judicial system. It concluded that
respondent had violated Rules of Professional Conduct 3.1 (frivolous claims) in four
2
Respondent previously had sent emails accusing Disciplinary Counsel of
racial discrimination and other improprieties, and calling on Disciplinary Counsel to
drop the charges against him.
3
Disciplinary Counsel does not have the authority to unilaterally disbar an
attorney. See D.C. Bar. R. XI, § 6(a).
4
matters, 3.2(a) (expediting litigation) in one matter, 3.4(c) (violating the rules of a
tribunal) in one matter, 4.2 (communicating with a represented person) in one matter,
4.4(a) (embarrassing/burdening third parties) in four matters, 8.4(d) (serious
interference with the administration of justice) in three matters, and 8.4(g) (misuse
of criminal/disciplinary charges) in two matters. The Committee recommended that
respondent be suspended for three years with reinstatement conditioned on a
showing of fitness. Disciplinary Counsel took exception to that recommendation,
arguing that respondent should be disbarred. Respondent himself took no exception
to the Committee’s report and did not oppose Disciplinary Counsel’s call for his
disbarment.
Disciplinary Counsel apprised the Board of respondent’s email request to be
disbarred. The Board then issued a show cause order to respondent. The order
explained that while respondent had not satisfied the affidavit requirement for
consent disbarment in Bar Rule XI, § 12(a),4 his email, coupled with his failure to
4
Section 12(a) provides:
An attorney who is the subject of an investigation or a
pending proceeding based on allegations of misconduct
may consent to disbarment, but only by delivering to
Disciplinary Counsel an affidavit declaring the attorney's
consent to disbarment and stating:
5
participate in the disciplinary proceedings in any way, “clearly” indicated to the
Board that respondent “wants to be disbarred.” Moreover, the Board noted, “nothing
in the record” suggested that respondent’s disbarment request “was unknowingly or
improvidently made, or that he has thought better of it and would like to remain a
member of the Bar.”5 Stating that it saw “no point” in spending substantial resources
on a case “where both [r]espondent and Disciplinary Counsel want the same thing[,
namely r]espondent’s disbarment,” the Board ordered respondent to “show cause
(1) That the consent is freely and voluntarily rendered, that
the attorney is not being subjected to coercion or duress,
and that the attorney is fully aware of the implication of
consenting to disbarment;
(2) That the attorney is aware that there is currently
pending an investigation into, or a proceeding involving,
allegations of misconduct, the nature of which shall be
specifically set forth in the affidavit;
(3) That the attorney acknowledges that the material facts
upon which the allegations of misconduct are predicated
are true; and
(4) That the attorney submits the consent because the
attorney knows that if disciplinary proceedings based on
the alleged misconduct were brought, the attorney could
not successfully defend against them.
5
The Board pointed out that the disciplinary charges against respondent had
been pending for eleven months before he requested to be disbarred, and that
respondent had not repudiated his request, even though Disciplinary Counsel had
used it to support its arguments before the Hearing Committee and the Board in
support of disbarment.
6
why the Board should not recommend to the Court of Appeals that [r]espondent be
disbarred forthwith, based on his consent to be disbarred, without further
consideration of the proceedings against him.”6
Respondent did not respond to the order to show cause. Instead, he sent a
mailing to the Office of Disciplinary Counsel, in which he enclosed pictures of
Flavor Flav (from the hip-hop group Public Enemy) with the words “ODC IS A
JOKE” written at the top, and reasserted that ODC attorneys were unethical and
racist.
It is with the case in this posture that the Board recommends we disbar
respondent on consent. Respondent has not objected to that disposition of his case.
Disciplinary Counsel also takes no exception to it and “agrees with the Board that
the disciplinary system should not have to expend substantial resources where, as
here, the respondent-lawyer has thumbed his nose at the system” and has not denied
“[W]e must consider,” the Board explained, “that time spent by the Board
6
and the Court reviewing the particulars of Respondent’s case will necessarily delay
the resolution of other disciplinary matters. We see no point to further diverting the
disciplinary system’s limited resources away from cases involving respondents who
desire to retain their privilege to practice law in the District of Columbia, or from
the public that awaits a resolution of contested proceedings.”
7
the misconduct found by the Hearing Committee or objected to the proposed
sanction.7
D.C. Bar R. XI, § 9(h)(2) provides, in pertinent part, that “if no exceptions are
filed to the Board’s report, the Court will enter an order imposing the discipline
recommended by the Board.” This rule is not absolute—we would not impose
discipline that is clearly against the law or the public interest, for example, merely
because no party took exception to it8—but we see no reason not to adhere to it here.
7
Disciplinary Counsel also contends that cases like this one demonstrate a
need to amend the disciplinary rules, stating as follows:
Where a respondent-lawyer does not file an answer
or participate in the proceedings, Disciplinary Counsel is
still required to establish the misconduct by clear and
convincing evidence in the form of documentary evidence,
sworn affidavits, and/or sworn testimony. See D.C. Bar R.
XI, § 8(f); Board Rules 7.8. (Footnote omitted.) The
Court should revise its rules. Disciplinary Counsel, the
victims of a respondent’s misconduct, and other witnesses,
should not have to expend substantial time and resources
to prove misconduct that the respondent has not denied.
Similarly, a hearing committee should not have to hold a
hearing, receive testimony and documentary evidence, and
issue a report setting out in some detail the misconduct that
the respondent has not denied. But, that is what happened
here, what has happened in numerous other cases, and will
happen in future cases unless the rules are changed.
8
See In re Robertson, 612 A.2d 1236, 1242 (D.C. 1992) (“[W]e cannot adopt
a [sanction] recommendation . . . if it goes beyond the scope of what our rules allow
8
Respondent has waived any procedural objection to the Board’s determination that
he effectively consented to his disbarment notwithstanding the lack of the affidavit
required by Bar Rule XI, § 12(a). “We have consistently held that an attorney who
fails to present a point to the Board waives that point and cannot be heard to raise it
for the first time here.”9 Thus, our cases say that “a respondent attorney who claims
lack of notice of the charges or other procedural irregularities, without having raised
them before the Hearing Committee or the Board, will be held to have waived such
claims, consistent with due process.”10 And “by failing to file any exceptions,
respondent [also] has effectively conceded that the proposed sanction is
simply because the respondent attorney has not effectively contested the
recommendation.”).
9
In re Green, 136 A.3d 699, 700 (D.C. 2016) (quoting In re Holdmann, 834
A.2d 887, 889 (D.C. 2003) (quoting In re Abrams, 689 A.2d 6, 9 (D.C. 1997) (en
banc))).
10
In re Robertson, 612 A.2d at 1242 (citations omitted).
9
appropriate.”11 That sanction, disbarment, is not incommensurate with the gravity
of respondent’s proven misconduct.12
This is an atypical case. In the usual case of disbarment by consent, the
attorney’s affidavit is required because it serves two purposes: (1) it provides
assurance that the attorney’s consent is knowing and voluntary, and (2) the
admissions required in the affidavit are a substitute for a full-blown adjudication and
relieve Disciplinary Counsel of the burden of proving the attorney’s disciplinary
violations on a full evidentiary record. Neither of those reasons is important in the
unusual circumstances of this case. Respondent’s words and actions dispel any
concern that his request to be disbarred and failure to file exceptions were
unknowing, improvident, or coerced. Among other things, respondent had the
specification of charges and Disciplinary Counsel’s hearing exhibits, and the show
11
In re Patel, 926 A.2d 124, 125 (D.C. 2007) (citations omitted); see also,
e.g., In re Reiner, 617 A.2d 984, 985 (D.C. 1992) (“A member of the Bar who is the
subject of a pending disciplinary proceeding may acquiesce in a disbarment by
consent, D.C. Bar R. XI, § 12, and we see no reason why an attorney who does not
file any exceptions or opposition to a disciplinary recommendation by the Board
should not, as a general rule, likewise be considered as having acquiesced in effect
to the proposed sanction.” (citation omitted)).
12
See In re Shieh, 738 A.2d 814, 818–19 (D.C. 1999); see also D.C. Bar R.
XI, § 9(h)(1) (providing that this court generally “shall adopt the recommended
disposition of the Board unless to do so would foster a tendency toward inconsistent
dispositions for comparable conduct or would otherwise be unwarranted”).
10
cause order provided him the opportunity to reconsider his request. And since a full
evidentiary hearing was held, at which Disciplinary Counsel presented its evidence,
and the Hearing Committee issued a lengthy and comprehensive decision with
findings by clear and convincing evidence, respondent’s admissions in an affidavit
were unnecessary.13
Accordingly, it is ORDERED that Glenn H. Stephens, III, be, and hereby is,
disbarred by consent from the practice of law in the District of Columbia. Inasmuch
as respondent’s right to practice law in the District has been and remains suspended
in another matter, this order of disbarment is effective immediately. For purposes
of reinstatement, however, the period of respondent’s disbarment shall not begin to
run until such time as he files an affidavit in compliance with D.C. Bar R. XI, §
14(g). See D.C. Bar R. XI, § 16(c).
So ordered.
13
Cf. D.C. Bar R. XI, § 8(f) (providing that where a respondent lawyer fails
to answer the petition or participate in the disciplinary proceedings, the Hearing
Committee Chairperson “may enter an order of default and the petition shall be
deemed admitted subject to ex parte proof by Disciplinary Counsel sufficient to
prove the allegations, by clear and convincing evidence, based upon documentary
evidence, sworn affidavits, and/or testimony”).
11
DEAHL, Associate Judge, concurring: We are bound by D.C. Bar Rule XI
§ 9(h)(2) to disbar respondent. That is the Board on Professional Responsibility’s
recommended discipline and respondent takes no exception to it. Section 9(h)(2)
contains a straightforward command under these circumstances: “[I]f no exceptions
are filed to the Board’s report, the Court will enter an order imposing the discipline
recommended by the Board.” That command, promulgated by order of this court
under D.C. Code § 11-2501(a) (2012 Repl.), disposes of this case. I would not delve
into the propriety of the Board’s recommended sanction because—proper or not—
respondent takes no exception to it and that ought to end the matter.
My colleagues go further because they think we cannot impose a sanction that
is “clearly against the law or the public interest,” prompting each of them to examine
(and ultimately disagree about) whether the Bar’s recommended sanction is plainly
at odds with D.C. Bar Rule XI § 12. That endeavor, in my view, is beside the point.
It is never contrary to the Bar Rules for us to impose a recommended sanction that
is unobjected to because § 9(h)(2) directs us to do just that, without exception. It is
effectively an override switch so that even if the Board runs roughshod over the Bar
Rules in reaching its recommendation, the onus is on the respondent to object to that;
when he fails to do so, we comply with the Bar Rules by imposing the recommended
sanction.
12
To be sure, we cannot mete out a punishment that violates some statutory or
constitutional command. We could not order a respondent stretched on the rack, or
broken on the Catherine wheel, merely because the Board recommended it and
respondent did not object. That would violate both the Eighth Amendment and it
would exceed the statutorily authorized sanctions permitted in bar proceedings—
namely, disbarment, suspension, or censure. D.C. Code § 11-2502 (2012 Repl.).1
But for the Board’s recommended sanction to be clearly against the law or the public
interest, it must be in violation of some law external to the Bar Rules themselves.
By virtue of the Board recommending a sanction and a respondent not objecting to
it, that sanction perforce becomes compliant with the Bar Rules under § 9(h)(2). So
long as the Board’s unobjected-to recommended sanction remains within statutory
and constitutional bounds, I think we must impose it.
The lone authority my colleagues offer to the contrary is In re Robertson, 612
A.2d 1236, 1242 (D.C. 1992), a case where we declined to impose an unobjected-to
sanction because we found it non-compliant with the Bar Rules themselves (more
specifically, what those rules mean by “restitution”). But that case predates
1
To those three sanctions provided by statute the Bar Rules permit several
lesser professional sanctions—“Reprimand,” “Informal admonition,” “Revocation
or suspension of a license to practice as a Special Legal Consultant”—all fairly
subsumed in the greater sanctions permitted by statute. D.C. Bar Rule XI § 3(a).
13
§ 9(h)(2), which was promulgated in 1994—in the wake of and perhaps in response
to Robertson—and effective the following year. Section 9(h)(2)’s addition to the
rules effectively codified the dissenting view from Robertson that it “is not our
function to overlook the acquiescence of the parties and to probe the theoretical
merits of an issue which is not being contested before us,” 612 A.2d at 1247(Schwelb, J.), so that unobjected-to sanctions are now necessarily compliant with
the Bar Rules. So far as I can tell we have never refused to impose an unobjected-
to sanction in the twenty-six-plus years since that amendment, and I do not think a
mere deviation from some other Bar Rule(s) would ever justify us doing so.
To the dissent’s view that the Board proceedings “strayed so far from
fundamental safeguards of the disciplinary system” as to merit our rejecting the
recommended disbarment, I have two responses. The first I have already made: if
the claim is that the Board violated Bar Rules in recommending the sanction it did,
that might be true,2 but it is of no import. Respondent has not availed himself of the
2
My dissenting colleague, and the Board’s dissenters, make a persuasive case
that it did. I do not mean to express any contrary view. I join Judge Glickman’s
opinion only with that caveat: to the extent his opinion suggests the Board was right
to dispose of Rule XI § 12(a)’s requirements because they are not “important in the
unusual circumstances of this case,” or are “unnecessary,” I disagree. But I
understand him to use those descriptors only in the sense that those requirements are
not so important as to justify rejecting the recommended sanction here. With that I
14
one fundamental safeguard that can protect him from such a violation: taking
exception to the Board’s recommended sanction. By failing to do that, the
recommendation’s compliance with the Bar Rules is automatic under § 9(h)(2).
Second, if the dissent is invoking some greater sense of injustice at
respondent’s disbarment, I do not share that sense. The D.C. Bar is a professional
organization and its members hold a position of public trust. See generally In re
Dortch, 860 A.2d 346, 355, 363 (D.C. 2004). When one of those members cannot
be bothered to respond to charges of serious misconduct—or, as here, affirmatively
requests disbarment in response—he has been afforded an excess of process when
Disciplinary Counsel nonetheless presents those charges and proves them to the
Hearing Committee’s satisfaction by clear and convincing evidence, as happened
here. Perhaps the Bar Rules entitled him to an even greater excess of process, but
if so then we can afford him relief only if he asks for it. He did the opposite here,
when more than three years ago he insisted that we not “kill trees” or “waste taxpayer
resources” on him. We should have been quicker to abide.
agree, and I would go further that no mere violation of the Bar Rules could ever
provide a basis for rejecting an unobjected-to sanction.
15
RUIZ, Senior Judge, dissenting: Because it is clear that the requirements for
a disbarment by consent have not been met, D.C. Bar R. XI, § 12, and the court does
not have a report and recommendation from the Board on Professional
Responsibility based on a substantive review of the evidentiary record and findings
of the Hearing Committee concluding that respondent committed the charged Court
of the Rules of Professional Responsibility, D.C. Bar R. XI, §§ 9(b), (d), (h)(1), I
dissent from the order of disbarment. Instead, I would suspend respondent and
remand the case to the Board to conduct the usual substantive review of the Hearing
Committee record and make a recommendation to the court on the substantive
charges and evidence presented by Disciplinary Counsel.
First, this is not a disbarment by consent. D.C. Bar Rule XI, § 12 sets forth
the sole method available to attorneys who choose to be disbarred by consent rather
than proceed with a pending disciplinary proceeding. Subsection (a) specifies that
“[a]n attorney who is the subject of an investigation or a pending proceeding based
on allegations of misconduct may consent to disbarment, but only by delivering to
Disciplinary Counsel an affidavit declaring the attorney’s consent to disbarment
. . . .” D.C. Bar R. XI, § 12(a) (emphasis added). There are specific requirements
for the contents of the affidavit and it is undisputed that respondent has failed to
submit such an affidavit.
16
Further, even if we were willing to overlook the plain language of subsection
(a) providing that its procedure constitutes the “only” means available for consent
disbarment, as the dissenting Board members correctly note, respondent’s emails
cannot be construed to be the functional equivalent of the required affidavit. At
most, respondent’s emails can be read to minimally satisfy the requirements of D.C.
Bar Rule XI, § 12(a) that his statement was given freely and voluntarily and that he
is aware that there is a disciplinary proceeding against him. See D.C. Bar R. XI,
§§12(a)(1)-(2). However, respondent’s emails do not indicate that he is “fully aware
of the implication of consenting to disbarment” or that he is “aware of the nature of
the proceedings pending against him.” Id. Most importantly, he has not
“acknowledged that ‘the material facts upon which the allegations of misconduct are
predicated are true,’” or that he is “consenting to disbarment because he ‘knows
that. . . . [he] could not successfully defend against’ the alleged misconduct.”1 Such
omissions are not “technical or trivial.” See In re White, 605 A.2d 47, 48 (D.C.
1992) (explaining that the Board rejected a consent disbarment affidavit when the
attorney failed to set forth and acknowledge all charges against him). It should be
1
To the contrary, the language of the emails imply that respondent is not
asking to be disbarred because he acknowledges that the allegations are true and he
cannot successfully defend against them, but because he rejects the process based on
his belief that he is being unfairly targeted in a sham investigation by the “dishonest”
and “racist” attorneys at the Office of Disciplinary Counsel.
17
noted that Disciplinary Counsel disagreed with the Board’s proposed course to
disbar respondent solely on the basis of the email and failure to respond to the show
cause order, and argued that the Board should decide on the merits of the charges,
based on the case presented to the Hearing Committee.2
Similarly, the Board erred in construing respondent’s failure to respond to its
July 17 show cause order as consent to disbarment under D.C. Bar Rule XI, § 12(a).
The show cause order “set out the conditions under which respondent may consent
to disbarment, including the statements that must be contained in the required
affidavit pursuant to D.C. Bar R[ule] XI, § 12(a). . . .” The Board reasoned that by
not furnishing the affidavit, respondent indicated that he did not wish to avail himself
of procedural protections that D.C. Bar Rule XI, § 12 provides and thus it
2
Disciplinary Counsel expressed reservations about the Board’s course of
action, warning of two consequences of proceeding to disbar by consent based on
the emails without a finding or admission of wrongdoing: (1) that the charges would
be deemed “unadjudicated misconduct” pursuant to Board Rule 9.8, which would
place an evidentiary burden on Disciplinary Counsel who would have to present its
case again if respondent sought reinstatement and disputed the violations; and (2)
that respondent might not be subject to reciprocal discipline in the U.S. District
Court for the District of Columbia and the U.S. Court of Appeals for the District of
Columbia. The District Court had referred one of the matters underlying the charges
to Disciplinary Counsel and both courts had requested updates on respondent’s
disciplinary case.
18
“conclude[d] that his response is the functional equivalent of meeting the
requirements of Rule XI, § 12.”
As a matter of logic, however, this reasoning is less than compelling as it is
equally reasonable to infer that once advised of the requirements for a disbarment
by consent, notice that his email did not satisfy those requirements, and Disciplinary
Counsel’s objection to the Board’s proposal to bypass a merits review of the Hearing
Committee record, respondent elected not to go that route. Rather than signifying
respondent’s rejection of the protections of § 12, his failure to respond to the show
cause order could be viewed as signifying the opposite; that having been alerted that
he had the benefit of those protections, he sought to preserve them.3
In addition to its illogic, the Board’s inference that by remaining silent in the
face of the show cause order respondent intended to waive the protections of § 12
3
The show cause order stated that respondent’s email did not comply with
the requirements for disbarment by consent under § 12 and asked respondent to show
cause why the Board should not “deem him to have complied” and recommend to
the court that he be disbarred by consent without further consideration of the
proceedings.
Disciplinary Counsel agreed that disbarment was called for but objected to
its being based solely on the email and show cause order, arguing that the Board also
needed to review and make a recommendation based on the findings of the Hearing
Committee.
19
sits uneasily with the Board’s rejection of Disciplinary Counsel’s request that the
Board adopt a waiver doctrine that would allow it to follow the Hearing Committee’s
recommendation without substantive review when the respondent has not presented
argument to the Committee or exceptions to its Report. The Board was appropriately
squeamish about foregoing a substantive review without guidance from the court in
light of the clear language of the Rules which provide that the Board “shall decide
the matter on the basis of the Hearing Committee record” and “after reviewing the
Hearing Committee record.” D.C. Bar R. XI, §§ 9(b)-(c).4 As the Board commented
in its Report, it cannot evaluate whether substantial evidence supports the Hearing
Committee’s findings “without actually reviewing the record,” nor can it decide
whether to endorse the Committee’s recommended sanction to the court without the
“fact-intensive ‘comparability analysis’” necessary to ward against imposition of a
sanction that “fosters a tendency toward inconsistent dispositions for comparable
conduct or [that may] otherwise be unwarranted,” as required by § 9(h). Yet that
appropriate regard for the Rules went out the window when the Board decided,
instead, to recommend a disbarment by consent that does not comply with the
requirements clearly prescribed in § 12(a), based on its own new waiver theory.
4
In this case, Disciplinary Counsel filed an exception to the three-year
suspension (with a showing of fitness required for reinstatement) recommended by
the Hearing Committee, and argued for disbarment instead.
20
Second, the Board’s refusal to conduct a review of the Hearing Committee
record violated the Rules and deprives this court of a substantive report that would
form the basis for discipline on the merits of the serious charges that were filed
against respondent. The court generally affords deference to the Board’s report and
recommendation, but this deference is predicated upon the Board’s review of the
Hearing Committee’s report and recommendation:
We must accept the findings of fact made by the Board
unless they are unsupported by substantial evidence of
[the] record, and shall adopt the recommended disposition
of the Board unless to do so would foster a tendency
toward inconsistent dispositions for comparable conduct
or otherwise would be unwarranted. In a similar fashion,
the Board is obliged to accept the hearing committee's
factual findings if those findings are supported by
substantial evidence in the record, viewed as a whole.
Moreover, the Board ‘must defer to . . . [the] credibility
determinations[ ] made by the [Board's] fact-finding body
(the hearing committee).
In re Elgin, 918 A.2d 362, 373 (D.C. 2007) (internal citations and quotations
omitted); see also D.C. Bar R. XI, § 9(h)(1) (“In determining the appropriate order,
the Court shall accept the findings of fact made by the Board unless they are
unsupported by substantial evidence of record.”).
As the Board recognizes, D.C. Bar Rule XI, § 9(b) requires that its decision
be based upon an actual review of the Hearing Committee’s record. Further,
21
“[p]ursuant to D.C. Bar R[ule] XI, §§ 9(c)-(d), the Board is required to review the
Hearing Committee record and prepare a report of its findings and recommendation,
which is then filed with the Court.” See also D.C. Bar R. XI, § 4(e)(7) (The Board
has the “power and duty . . . [t]o review the findings and recommendations of
Hearing Committees submitted to the Board, and to prepare and forward its own
findings and recommendations, together with the record of proceedings before the
Hearing Committee and the Board, to the Court.”). In this case, the Office of
Disciplinary Counsel presented its case to the Hearing Committee which in turn
considered the evidence and wrote an extensive 252 page report. The Board cannot
bypass what the Rules require by devising, after the fact, a non-compliant consent
disbarment that was never presented to or by Disciplinary Counsel. See D.C. Bar R.
XI, §§ 12(a)-(b).
Third, the majority relies on § 9(h)(2) which allows the court to impose the
discipline recommended by the Board where the respondent has filed no exception
to the Board’s report with the court. As Judge Glickman’s opinion for the court
recognizes, however, that is not a wide open dispensation and it may not be invoked
to impose discipline in a manner that is clearly against the law or the public interest.5
5
In his concurring opinion, Judge Deahl interprets Rule XI, § 9(h)(2) as
requiring the court to “enter an order imposing the discipline recommended by the
Board” when no exceptions are filed to the Board’s report even if: (1) the Board’s
22
This proceeding has strayed so far from clear mandates in the Rules that are
fundamental safeguards of the disciplinary system that reliance on the respondent’s
failure to file an exception with the court is not a sound basis for the imposition of
the ultimate professional sanction of disbarment, without completing the substantive
process that Disciplinary Counsel initiated. The Board decided not to review the
Hearing Committee’s findings because “we see nothing to be gained by an
exhaustive march through those procedures” because respondent indicated that he
wishes to be disbarred and did not participate in the disciplinary proceeding. The
Board cites no authority for its decision to deviate from the requirements of D.C.
Bar Rule XI, §§ 9(b)-(d) because there is none. If the Board wishes to have that
report does not meet the requirements of Rule XI, §§ 4(e)(7), 9(b)-(d); (2) the
Board’s findings and recommendation are unsupported by substantial evidence; and
(3) the Board’s recommended disposition “would foster a tendency toward
inconsistent dispositions for comparable conduct or would otherwise be
unwarranted.” D.C. Bar R. XI, § 9(h)(1). Under this absolutist view noncompliance
with the Rules is a “mere violation” that should not stand in the way of this
disbarment. See ante. My concurring colleague also considers that following what
our Rules require is an “excess of process.” But D.C. Bar Rule XI, § 9(h)(2) is not
a stand-alone “override-switch.” It is one part of the Rules that must be read in
context. See Lucas v. United States, 240 A.3d 328, 335 (D.C. 2020) (“The words of
a statute must be read in light of the statute taken as a whole and are to be given a
sensible construction, one that would not work an obvious injustice.”) (internal
quotation marks and citation omitted). “Ultimately, it is this court's weighty
responsibility to impose an appropriate disciplinary sanction on a member of our
Bar.” In re Howes, 52 A.3d 1, 13 (D.C. 2012). Reading D.C. Bar Rule XI, § 9(h)(2)
to bind the court to the Board’s recommendation regardless of its soundness and
adherence to mandated procedures is an abdication of this court’s responsibility as
the ultimate guarantor of the disciplinary process.
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option, it may propose a change in the Rules that is subjected to the usual vetting
process. In sum, our Rules simply do not allow what the majority has sanctioned.
A lawyer’s nonparticipation does not give the Board license to disregard its
obligations to the court.
Fourth, I share the Board’s and my colleagues’ evident frustration with a
respondent who has thumbed his nose at the disciplinary system. But the proper
response is not to let pique lead to abandoning well-established norms but rather to
follow those norms in the usual course. It is the reasoned, sober answer to an
accusation that the system is unfair and biased. Moreover, there is no imperative to
abandon such norms as the disciplinary system is not without a means to defend
itself and the public from respondent’s nonparticipation.
If the Board did not wish to take the time to review the Hearing Committee
report and make a recommendation to the court on the merits of the case presented
by Disciplinary Counsel, it had an alternative measure provided in the Rules that is
designed to protect the public. D.C. Bar Rule XI, § 3(c) allows the Board to petition
the court for a temporary suspension of an attorney who has failed to respond to an
order of the Board in cases where Disciplinary Counsel’s investigation involves
allegations of serious misconduct. This is such a case. The suspension is dissolved
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when “(1) Disciplinary Counsel notifies the [c]ourt that the attorney has responded
to an order or (2) the [c]ourt determines that an adequate response has been filed by
the attorney.” D.C. Bar R. XI, § 3(d). If respondent still chose to not respond in
the disciplinary proceeding, his suspension would be indefinite —– protecting the
public from his further practice in this jurisdiction. Indeed, respondent is already
under suspension for this very reason by order dated November 7, 2018, in case No.
18-BS-966. And on October 10, 2019, the court issued an order to show cause why
he should not be suspended pending the court’s final action in this case, which
respondent did not answer. D.C. Bar R. XI, § 9(g). These suspensions serve to
protect the public until respondent engages with the proceedings or the Board
completes its substantive review and recommendation on the charges of professional
misconduct.
For these reasons I would not issue an order of disbarment by consent but
would enter an order of temporary suspension pursuant to our show cause order and
remand the case to the Board for consideration of the Hearing Committee report and
record.