Brookens v. Committee On Unauth. Pr. of Law

• Decision Date: 04 March 1988
• Docket Number: No. 86-1182.,No. 86-1181.,86-1181.,86-1182.
• Citation: 538 A.2d 1120
• Court: D.C. Court of Appeals
• Parties: Benoit O. BROOKENS, Appellant, v. COMMITTEE ON UNAUTHORIZED PRACTICE OF LAW, Appellee. COMMITTEE ON UNAUTHORIZED PRACTICE OF LAW, Cross-Appellant, v. Benoit O. BROOKENS, Cross — Appellee.

Page 1120

538 A.2d 1120

Benoit O. BROOKENS, Appellant, v. COMMITTEE ON UNAUTHORIZED PRACTICE OF LAW, Appellee.

COMMITTEE ON UNAUTHORIZED PRACTICE OF LAW, Cross-Appellant, v. Benoit O. BROOKENS, Cross — Appellee.

No. 86-1181.

No. 86-1182.

District of Columbia Court of Appeals.

Argued July 10, 1987.

Decided March 4, 1988.

Benoit O. Brookens, pro se.

James P. Schaller, with whom Jay A. Resnick, Washington, D.C., was on the brief, for the Committee on Unauthorized Practice of Law.

Before PRYOR, Chief Judge, MACK, Associate Judge, and REILLY, Senior Judge.

PRYOR, Chief Judge:

Benoit O. Brookens and this court's Committee on Unauthorized Practice each seek review, through cross-appeals, of an order by a single judge of this court in which, pursuant to D.C.App.R. 49,¹ Brookens was held in contempt for unauthorized practice of law in the District of Columbia and enjoined from engaging in similar behavior in the future.

I. Facts

At all times relevant to the events at issue here, Benoit O. Brookens was a member of the bars of Wisconsin and Pennsylvania. He has never been a member of the District of Columbia Bar. Since at least 1979, Brookens has maintained offices in the District of Columbia and has appeared on behalf of others or on behalf of himself and others jointly in numerous cases in the Superior Court of the District of Columbia, United States District Court for the District of Columbia, and the District of Columbia Court of Appeals, including Shannon & Luchs Co. v. Elie, Superior Court L & T No. 92786-81; Vogt v. Gray, Superior Court C.A. No. 12037-81; Escrow Committee v. Hagner Management Corp., Superior Court C.A. No. 7561-81; Greene v. Greene, Superior Court C.A. No. 7153-82; Brenneman v. District of Columbia, No. C.A. 81-79 (United States District Court for the District of Columbia). In addition, in three cases before this court, he filed an opposition motion on behalf of "intervenors" (No. 82-1604) and a "notice of intention to intervene" (Nos. 82-1608 and 82-1609), and in these cases provided the only signature on the filed documents. He also testified in another case, Hagner Management Corp. v. Brookens, Superior Court L & T No. 13051-80, that he was "general counsel" to another party and "chief counsel and chief tenant for rent rollback" in the Dorchester House proceedings.²

Brookens also has represented others on a regular basis before the District of Columbia Rental Accommodations Office.³ In addition, Brookens has held himself out to the public as an attorney. He has used a letterhead on which his name was printed as "Benoit Brookens II, Esq." He used checks for business purposes on which his name was similarly printed. He corresponded as "Benoit Brookens, of Counsel" on the letterhead of "Law Offices of Qualley, Larson & Jones." He caused himself to be listed in the white pages of the Chesapeake and Potomac Telephone Company's telephone directory as "Brookens Benoit II lwyr," followed by an office address, office phone number, home address, and home phone number.

Pursuant to D.C.App.R. 49(d),⁴ the Committee on the Unauthorized Practice of Law (the "Committee") initiated a proceeding against Benoit O. Brookens before a single judge of this court. The court, after a hearing, issued an order directing Brookens to show cause "why he should not (1) be held in contempt for refusing to obey a subpoena issued by this court,⁵ and (2) be held in contempt for, and permanently enjoined from, [engaging in] the unauthorized practice of law." Following an evidentiary hearing on this order, the judge found that Brookens had engaged in the unauthorized practice of law and held him in contempt of court. A fine of $300, payment suspended, was imposed, and Brookens was ordered permanently enjoined and prohibited from future violations of D.C.App.R. 49.⁶ Brookens appealed the decision, arid the Committee cross-appealed.⁷

On appeal, Brookens challenges the denial of his request for a jury trial and disputes the conclusion that he engaged in abuse or exploitation of this court's pro hac vice exception to the general prohibition against unauthorized practice of law. D.C.App.R. 49(c)(1). In its cross-appeal, the Committee seeks reversal of the finding that Brookens' activities before a District of Columbia agency did not constitute the unauthorized practice of law.⁸

II. Jury Trial Issue

Prior to the hearing in this case, Brookens requested a jury trial; his request was denied in denying Brookens' request, the presiding judge noted he was aware that he was thereby restricting the range of his sentencing options in the event of a finding of contempt. Sec In re Evans, 411 A.2d 984, 989-93 (D.C.1980). Memorandum Opinion, supra, at 9 n. S. Brookens here challenges the denial of his request for a jury trial.⁹

"A criminal contempt proceeding is not a criminal prosecution, and consequently not all procedures required in a criminal trial are necessary in a hearing on a charge of contempt." In re Wiggins, 359 A.2d 579, 580 (D.C.1.976). Criminal contempt defendants, however, are entitled to those procedures inherent in fundamental due process, including the right to trial by jury under certain circumstances. Id. at 581. The entitlement to a jury trial may derive from either of two sources, the Sixth Amendment to the Constitution of the United States or D.C.Code § 16-705 (1981).

This court has inferred from the language of D.C. Code § 16-705(b) that in order for the offense of contempt to be considered non-petty, it must be one in which the fine exceeds $300 or the imprisonment exceeds six months. In re Evans, supra, 411 A.2d at 990. It is clear, then, that Evans and Wiggins taken together restrict those contempt proceedings in which a jury trial is required pursuant to D.C.Code § 16-705(b) to those cases resulting in imprisonment for more than six months. Evans, supra, 411 A.2d at 990 n. 4 (emphasis added). Accordingly, unlike other criminal proceedings, Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968), the statutory right to a jury trial in a contempt proceeding is a function of the actual sentence imposed rather than the potential sentence to which the defendant is exposed by virtue of the charges against him. See generally LAFAVE AND ISRAEL, CRIMINAL PROCEDURE 21.1 (1984); WHITEHEAD, CRIMINAL PROCEDURE 22.04 (1980). We conclude, then, that in the case before us, because the actual penalty imposed was a fine that did not exceed $300, there was no violation of Brookens' statutory right to trial by jury.

Independent of any statutory right, a defendant in a criminal contempt proceeding may also have a Sixth Amendment entitlement to a jury trial. The Sixth Amendment right to a jury trial arises where the defendant is charged with a serious or non-petty offense. Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). As we noted in Evans, supra, an alleged criminal contemnor must be given access to a jury trial unless the legislature has authorized a maximum penalty that renders the contempt a petty offense or unless the penalty actually imposed is within the constitutional limit of six months. In re Evans, supra, 411 A.2d at 991, citing Dyke v. Taylor Implement Mfg. Co. 391 U.S. 216, 219-20, 88 S.Ct. 1472, 1474-75, 20 L.Ed.2d 538 (1968). In the District of Columbia, D.C. Code § 16-705(b), while not the source of a jury trial right for a person charged with criminal contempt where the penalty imposed is only a fine, embodies the "appropriate standard for determining the seriousness of the contempts committed." In re Evans, supra, 411 A.2d at 992.¹⁰ Accordingly, as in Evans, under the Sixth Amendment, a person may not be convicted of criminal contempt and fined more than $300, even if no prison sentence is imposed, without benefit of a jury trial. Once again, because the fine imposed did not exceed $300, Brookens' Sixth Amendment right to trial by jury was not violated.

Because there is no statutory maximum penalty for criminal contempt, the usual tests for entitlement to trial by jury, which instruct us to look to the maximum penalty to which the defendant is exposed, are inapplicable. As the Evans court recognized and as this case exemplifies, "[t]his formulation places the trial judge in the difficult position of having to look ahead to the sentence he or she might impose, before hearing the evidence, when ruling on a motion for a jury trial for an offense for which there is no statutory maximum penalty." Id. at 991 n. 5. Nevertheless, because the presiding judge did just that and the actual fine imposed did not rise to a level sufficient to trigger either the statutory or constitutional right to jury trial, we affirm the denial of Brookens' request.

III. Pro Hac Vice

Brookens also challenges the conclusion that he violated this court's rule governing pro hac vice appearances, D.C. App.R. 49(c)(1), if not, technically then in spirit.¹¹ The judge stated, "the pro hac vice rule is intended for special cases or unusual circumstances. It is not a device to circumvent bar membership requirements or rules against unauthorized practice. The court concludes from the evidence that respondent has repeatedly abused the pro hac vice procedure." Memorandum Opinion, supra, at 8-9.

Brookens claims that in each of his pro hac vice appearances, he provided the correct paperwork and that he never exceeded five annual appearances, the maximum number permissible. The judge found that Brookens' use of the rule amounted to impermissible exploitation of it. We agree. Brookens, although licensed elsewhere, has never practiced anywhere but in the District of Columbia. His offices were in the District and his appearances were before courts and agencies in the District of Columbia.¹² Moreover, although he appeared five or fewer times in any year, it cannot be said that his appearances were out of the ordinary. Rather his appearances were an integral part of his otherwise unauthorized...