Angarano v. United States

• Decision Date: 02 December 1974
• Docket Number: No. 7435.,No. 7168.,No. 7312.,No. 7140.,No. 7006.,7006.,7140.,7168.,7312.,7435.
• Citation: 329 A.2d 453
• Parties: William J. ANGARANO, Appellant, v. UNITED STATES, Appellee. Richard H. LONG, Appellant, v. UNITED STATES, Appellee. Lucius Frank McKOY, Appellant, v. UNITED STATES, Appellee. Gertrude BARNES, Appellant, v. UNITED STATES, Appellee. Joseph RUSSELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

329 A.2d 453

William J. ANGARANO, Appellant, v. UNITED STATES, Appellee.

Richard H. LONG, Appellant, v. UNITED STATES, Appellee.

Lucius Frank McKOY, Appellant, v. UNITED STATES, Appellee.

Gertrude BARNES, Appellant, v. UNITED STATES, Appellee.

Joseph RUSSELL, Appellant, v. UNITED STATES, Appellee.

No. 7006.

No. 7140.

No. 7168.

No. 7312.

No. 7435.

District of Columbia Court of Appeals.

December 2, 1974.

Norman Lefstein, Robert Weinberg, and Jeffrey Freund, Washington, D. C., for appellants.

Harold H. Titus, Jr., U. S. Atty., and John A. Terry and William D. Pease, Asst. U. S. Attys., for appellee.

Austin F. Canfield, Jr., and David N. Webster, Washington, D. C., amicus curiae for The Bar Association of the District of Columbia.

Charles T. Duncan and David N. Webster, Washington, D. C., amicus curiae for Board of Governors of The District of Columbia Bar.

Before REILLY, Chief Judge, KELLY, PICKLING, KERN, GALLAGHER, NEBEKER, YEAGLEY, and HARRIS, Associate Judges, and PAIR, Associate Judge, Retired.¹

HARRIS, Associate Judge, with whom REILLY, Chief Judge, NEBEKER and YEAGLEY, Associate Judges, and PAIR, Associate Judge, Retired, concur:

Reconsideration en banc has been sought of the decision of the division of the court in these cases (which have not been consolidated but which have been considered together for the convenience of the court and the parties). Angarano v. United States, D.C.App., 312 A.2d 295 (1973). The motion is denied. In light of the dissenting views expressed by our brothers Gallagher and Kern, the position of the majority should be stated briefly with respect to three aspects of these cases.

I. The Brief of the District of Columbia Bar

One concomitant of the extensive District of Columbia court reorganization decreed by Congress in 1970 was the creation by this court of what is generally referred to as a unified bar. Acting under the authority of D.C. Code 1973, § 11-2501, this court adopted a number of rules, one of which made membership in the District of Columbia Bar compulsory for all lawyers admitted to practice in this jurisdiction. This is in contrast to the nature of the long-established Bar Association of the District of Columbia (and a number of other bar associations in this jurisdiction), in which membership is voluntary.

The Public Defender Service (PDS) sought reconsideration en banc of the division's decision. Amicus curiae briefs were tendered on behalf of both the District of Columbia Bar and the Bar Association of the. District of Columbia.² The government, represented by attorneys who themselves are obliged to be members of the unified bar, vigorously opposed the filing of the brief tendered on behalf of the District of Columbia Bar, contending that the unified bar "may not, consistently with the First and Fifth Amendments, and without creating significant issues of conflict of interests, take partisan positions upon matters being litigated in the District of Columbia courts to which it is not a party."³

There is no doubt that the constitutional problems presented by the submission of an amicus brief purportedly expressing the position of the total membership of a compulsory bar on a question to be decided by this court are serious ones. See, e. g., Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961), particularly the dissenting opinions of Mr. Justice Black and Mr. Justice Douglas at pp. 865 and 877, 81 S.Ct. 1826, 6 L.Ed.2d 1191, respectively. In considering the petition for reconsideration en banc in this case, a majority of the court concluded that it is unnecessary to resolve those problems now. Accordingly, it was decided to accept the brief as one filed on behalf of the Board of Governors of the unified bar. The constitutional issues concerning the filing of a brief supposedly representing the position of the entire bar are ancillary to the basic question now before us, and our decision to refrain from resolving them at this time was neither abstruse nor unique.⁴ See, e g., United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971).

II. The Procedural Posture of the Case

Our dissenting colleagues express the thought that the majority has "ignored" our court's Rule 40 in denying the petition for reconsideration en banc. In fact, as would be expected, Rule 40 was considered carefully by the majority. In our view, the dissenting statements reflect a reluctance to accept a procedural concept which the majority considers to be an indispensable aspect of the proper functioning of an appellate court.

In Smith v. United States, our No. 6980, one PDS attorney filed a 30-page brief on the merits of the appeal, presenting a number of issues. None related to the possible ineffectiveness of trial counsel, who had been another member of the PDS staff. On June 1, 1973, the government filed its brief on the merits. On July 9, 1973, a third PDS attorney filed a motion for leave to withdraw. Exclusive of a few citations, the entire text of that motion was as follows: "Counsel for appellant is compelled to respectfully request leave to withdraw from and have new counsel appointed to this case due to ethical considerations."

Reference to the citations in that motion indicated that the new PDS appellate attorney felt that trial counsel may have been ineffective to the point of depriving the appellant of his constitutional rights (although the motion itself did not so state). The motion was considered by a division of the court consisting of Judges Fickling, Kern, and Gallagher. On July 26, 1973, Judges Kern and Gallagher voted to grant the motion. Judge Fickling dissented. Leave to withdraw was granted by means of a simple, typed order. The division's intended disposition of the motion was not circulated to the other members of the court, and no opinion was written setting forth the reasoning of the two judges who voted to grant the motion. While that particular division did dispose of the narrow question before it, in no sense did its action constitute a "decision" of the court within the contemplation of either M. A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971), or our Rule 40(c). More specifically, the perfunctory ruling on the motion in the Smith case could not and did not bind future divisions which might be asked to decide similar motions.

[2] Meanwhile, the separate motions to withdraw in the five cases now before us came on for consideration before a division composed of Chief Judge Reilly and Judges Kelly and Nebeker. Concerned by the rash of PDS motions to withdraw as appellate counsel based upon apparent assertions of ineffectiveness of PDS trial counsel, the new division concluded that a decision should be promulgated. A draft opinion was written and circulated by the majority to the full court, with Judge Kelly dissenting. The opinion duly became adopted, issued, and published. Thenceforth, that decision — Angarano v. United States, supra — constituted a part of the body of law in this jurisdiction, absent rejection by a majority of the court en banc or reversal by the Supreme Court. See, e. g., Robinson v. United States, 106 U.S.App.D.C. 325, 272 F.2d 554 (1959).

We have no doubt of the sincerity of the views expressed by PDS, the Bar Association, the Board of Governors of the District of Columbia Bar, and our dissenting colleagues. However, a majority of the court en banc considers the standard set forth in Angarano to be correct. With the heavy demands which are being made upon our time, it would be pointless — indeed wasteful — for the court to go en banc to achieve the same result which the majority already considers a division to have reached correctly. Hence, the prior decision of the court (as supplemented by this opinion) remains controlling as a result of the denial of the petition for reconsideration en banc.

III. The Merits of the Withdrawal Issue

A few basic comments are appropriate as to what is truly at issue in these cases. It seems to us, in effect, that PDS and the two bar organizations are discussing apples, the majority is discussing oranges, and the dissenters are discussing tangerines. The positions of PDS, the majority, and the dissenters may be characterized succinctly as follows:⁵ (1) PDS contends that "in the absence of evidence of bad faith," counsel should be permitted to withdraw upon the naked assertion "that he is in a conflict situation arising from a duty to pursue a nonfrivolous claim of ineffectiveness against a fellow member of his law firm or agency". (2) The division opinion in Angarano includes the following two statements: "The threshold is certainly higher in such cases than nonfrivolity. * * * We think the better test is the one applied [in the trial court] when determining the necessity for a hearing on a collateral attack asserting ineffective assistance of counsel. That is — does the contention, if true, entitle the pleader to relief or, is a prima facie case of constitutional ineffectiveness apparent?" 312 A.2d at 298 (citations omitted). "Again, We state that . . . an attack upon trial counsel is not a device to be used on appeal except in the most severe cases of glaring ineptitude." 312 A.2d at 300. (3) The dissenters take a middle-ground position, rejecting the PDS position but stopping short of the majority's view: ". . . it is our view that when appellate counsel finds himself in this [ethical] predicament he need only advise the court of the nature of his close relationship with trial counsel . . . and state in general terms the issue, such as, asserted failure to call an important defense witness without tactical justification. In other words, to make a good faith showing it is enough to identify a `legitimate issue' giving rise to the claim, which of course automatically excludes anything frivolous or insubstantial." Opinion of Judge Gallagher at 474-475, infra.

It thus is seen that the ultimate positions of the majority and the minority are...