Brown v. District of Columbia Bd. of Zoning, No. 13670.

Docket NºNo. 13670.
Citation413 A.2d 1276
Case DateMarch 31, 1980
CourtCourt of Appeals of Columbia District

Page 1276

413 A.2d 1276
Philip J. BROWN et al., Petitioners,
v.
DISTRICT OF COLUMBIA BOARD OF ZONING ADJUSTMENT, Respondent,
Oliver T. Carr, Jr. and George Beuchert, Intervenors.
No. 13670.
District of Columbia Court of Appeals.
Argued May 31, 1979.
Decided March 31, 1980.

Page 1277

Nicholas A. Addams, Washington, D. C., for petitioners.

Richard W. Barton, Deputy Corp. Counsel, and Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., entered appearances on behalf of respondent and adopted the brief of intervenors.

Whayne S. Quin, Washington, D. C., with whom Norman M. Glasgow and Norman M. Glasgow, Jr., Washington, D. C., were on brief, for intervenors.

Before GALLAGHER, NEBEKER and FERREN, Associate Judges.

GALLAGHER, Associate Judge:


This petition from the Board of Zoning Adjustment (BZA) raises a problem which continues to provoke lively discussion among members of the legal community: regulation of the "revolving door" between government agencies and private law firms.1

Our inquiry focuses in this case upon former members of the District of Columbia Corporation Counsel's Office who, after leaving government tenure, allegedly represented

Page 1278

parties whom they previously opposed before local agencies and courts. Petitioners contend that the resulting conflict of interest tainted the BZA proceeding here and requires reversal of the special exception granted to intervenor Carr.2 The BZA refused to disqualify Mr. Carr's counsel, upon objection, stating it was without authority to do so. Since we find the Board's conclusion erroneous, the record will be remanded for investigation of the alleged impropriety, and for further proceedings consistent with this opinion.

I.

Oliver T. Carr applied for a special exception under Zoning Regulation § 4502.32 to increase the number of off-street parking spaces at the Westbridge, a proposed residential and commercial complex in the new Commercial-Residential (CR) Zone in the West End section of the city.3 At the public hearing on July 5, 1978, counsel for petitioners moved that the firm of Wilkes and Artis, applicant's counsel, be disqualified for a conflict of interest. As reason for objection, petitioners pointed out that two Wilkes and Artis attorneys, Mr. Francis Murphy and Mr. Iverson Mitchell, had formerly served as Corporation Counsel and Assistant Corporation Counsel, respectively, while negotiations between Carr and the zoning authorities had taken place with respect to the Westbridge. Mitchell's name appeared on the statement of applicant, and his signature appeared on a motion to reopen the record and conduct further hearings. Murphy did not appear to actively represent Carr in the special exception application, but was merely a partner in Wilkes and Artis.

The record does not establish the exact dates of Mitchell's or Murphy's tenure in the Corporation Counsel's Office or the extent of their contact with Carr while they were in government service. However, petitioners pointed to two previous encounters between the attorneys and Carr. One involved Carr's court challenge to 60-foot height restrictions on the Westbridge site and the other involved subsequent negotiations on the legality of the proposed Westbridge condominium, referred to in a letter from Carr's counsel to then Corporation Counsel Murphy.

Carr first became involved in promoting the CR district in 1973, through an organization called West End Planning, Inc. The proposed CR area was to include Carr's property, the old Sealtest Dairy site at 26th and Pennsylvania Avenue, N.W. Carr developed one plan for the new district, as did the Office of Planning and Management (OPM), and two citizen groups. A final proposal, which called for a 90-foot height throughout the district, was reviewed in a number of public hearings. The review process culminated in the Zoning Commission's adoption of a text and map amendment on December 23, 1974. The new zoning regulations included the parking restrictions at issue here. The text and map as adopted allowed a 90-foot building height in most of the CR zone, although height was restricted to 60 feet on all property within 220 feet of Rock Creek Park.

Carr challenged the 60-foot height restriction as it applied to his building site in Superior Court Civil Action No. 4122-75. Iverson Mitchell as Assistant Corporation Counsel defended the Zoning Commission's order restricting height. Plaintiff Carr won this case in mid-1975. Petitioners cite Mitchell's direct, personal involvement in CA 4122-75 as evidence of conflict of interest. Petitioners' counsel did not allege Mr. Murphy's personal participation in CA 4122-75, apparently relying simply on the

Page 1279

supervisory position of then Corporation Counsel Murphy during the litigation.

Somewhat later in 1975, Carr again had dealings with the Corporation Counsel's office with respect to his proposed Westbridge complex. These dealings are evidenced by a letter dated October 24, 1975, from Carr's counsel to Murphy as Corporation Counsel. The letter refers to an October 21 meeting where Carr's counsel sought the opinion of Mitchell and other Corporation Counsel lawyers about the legality of their air rights condominium. The letter contained a brief reference to the proposed building's conformance to the CR parking regulations. Petitioners' counsel relied on this letter as further evidence of a conflict of interest in either Mitchell or Murphy now representing Carr in the application for a parking special exception.

Mr. McCants, Chairman of the BZA, denied petitioners' request to disqualify the firm of Wilkes and Artis on the grounds that the BZA is not a proper forum to raise an alleged violation of the disciplinary rules of the American Bar Association, saying:

I do not know if the Board has the authority or ability to even judge these things. Clearly the place to judge a conflict of interest or a violation of any of the disciplinary rules of the Bar Association or what have you would be with the Bar Association itself. I suspect, Mr. Addams, that if you had a question of that kind, the proper forum would be whatever disciplinary Board you might have in the Bar Association.

It seems to me we are taking our jurisdiction a bit far when we try to interpose our interpretation of what the disciplinary rules of the Bar Association provide and whether this is in conflict with that or not. We have enough problem right now in trying to interpret these Regulations.

The chairman's conclusion is erroneous because the BZA has not only the authority but the responsibility to regulate practice before it.

II.

It is true, as intervenors point out, that the authority to disqualify counsel for conflict of interest is not expressly granted to the BZA. The sole provision governing representation before the BZA appears in its Supplemental Rules of Practice and Procedure, 22 DCRR 1.5:

In any proceeding before the Board an individual may appear on his own behalf or on behalf of any other person. An individual need not be a member of the bar of any court to appear in a representative capacity. Any individual appearing before the Board other than on his own behalf may be required by the Board to establish his authority to act in a representative capacity.

The Board rules further empower the presiding officer to "regulate the course of the hearing" and to "take any other action authorized by these rules or necessary under these rules." Id. 4.31, 4.38. Intervenors contend that the rule pertaining to appearance and representation is exclusive, and that the Board's interpretation of its own jurisdiction must stand. We conclude, however, that the Board's interpretation is clearly erroneous.

Implied in these broad rules is the BZA's power to adopt reasonable procedures to carry out its administrative tasks and protect the integrity of its proceedings. See 1 F. Cooper, State Administrative Law 176 (1965). In particular, the Supreme Court has stated that an administrative agency with authority to set its procedural rules may adopt standards to govern who may practice before it. Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926) (authority exists regardless of the absence of an express statute providing for a list of enrolled attorneys). Many federal administrative agencies have adopted such standards. See, e. g., 47 C.F.R. §§ 1.23-1.27 (FCC may censure, suspend, or disbar any person practicing before it who has failed to conform to the Code of Professional Responsibility

Page 1280

or who has violated the federal "revolving door" statute, 18 U.S.C. § 207); 17 C.F.R. § 201.2 (SEC may suspend or disbar one who engaged in unethical or improper conduct). The Securities and Exchange Commission's rule was upheld in Schwebel v. Orrick, 153 F.Supp. 701 (D.D.C. 1957), aff'd on other grounds, 102 U.S.App. D.C. 210, 251 F.2d 919, cert. denied, 356 U.S. 927, 78 S.Ct. 716, 2 L.Ed.2d 759 (1958). As the United States District Court for the District of Columbia stated:

the Securities and Exchange Commission has implied authority under its general statutory power to make rules and regulations necessary for the execution of its functions to establish qualifications for attorneys practicing before it and to take disciplinary action against attorneys found guilty of unethical or improper professional conduct, and . . . the Commission has adequately implemented this authority by its Rule . . . . [Id. at 704.]

This principle was reaffirmed in Koden v. United States Department of Justice, 564 F.2d 228 (7th Cir. 1977). The Court there examined 8 U.S.C. §§ 1103 and 1362 (1976),4 code sections almost identical to 22 DCRR 1.5, 4.31 and 4.38, and found that these provisions gave the Immigration and Naturalization Service ample authority for its rule disbarring or disciplining attorneys for unprofessional conduct.

While the BZA clearly has the power to adopt a rule to deal with attorney conflict of...

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15 practice notes
  • Brown v. District of Columbia Board of Zoning Adjustment, No. 13670.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 21, 1984
    ...law firm, Wilkes & Artis, are not disqualified from this case.1 I. In Brown v. District of Columbia Board of Zoning Adjustment, 413 A.2d 1276 (D.C.1980) (Brown I), we noted that two lawyers with intervenor Carr's law firm, Iverson Mitchell and C. Francis Murphy, had served as counsel fo......
  • Dist. of Columbia Office of Tax v. Shuman, No. 12–AA–466.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 19, 2013
    ...an appeal for the plaintiff's failure to comply with a protective order, and Brown v. District of Columbia Bd. of Zoning Adjustment, 413 A.2d 1276, 1279–84 (D.C.1980), in which we ruled that the BZA could properly entertain a motion to disqualify an attorney who had allegedly violated a dis......
  • Tenley & Cleveland Park v. Bd. of Zon. Adj., No. 87-468.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 17, 1988
    ...that arise in the context of substantive zoning disputes before the BZA. It cites Brown v. District of Columbia Bd. of Zoning Adjustment, 413 A.2d 1276, 1280-81 (D.C. 1980), appeal after remand, 486 A.2d 37 (1984), in which the court held that the BZA had inherent authority, and the duty to......
  • Committee, Etc. v. Thompson, No. 81-1304.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 1, 1982
    ...of interest were present under the circumstances of this case. In Brown v. District of Columbia Board of Zoning Adjustment, D.C.App., 413 A.2d 1276, 1282 (1980) this court noted that "[t]he concern behind the ethics rule [DR 9-101(B)] and the similar federal statute, 18 U.S.C. § 207, i......
  • Request a trial to view additional results
15 cases
  • Brown v. District of Columbia Board of Zoning Adjustment, No. 13670.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 21, 1984
    ...law firm, Wilkes & Artis, are not disqualified from this case.1 I. In Brown v. District of Columbia Board of Zoning Adjustment, 413 A.2d 1276 (D.C.1980) (Brown I), we noted that two lawyers with intervenor Carr's law firm, Iverson Mitchell and C. Francis Murphy, had served as counsel for th......
  • Dist. of Columbia Office of Tax v. Shuman, No. 12–AA–466.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 19, 2013
    ...an appeal for the plaintiff's failure to comply with a protective order, and Brown v. District of Columbia Bd. of Zoning Adjustment, 413 A.2d 1276, 1279–84 (D.C.1980), in which we ruled that the BZA could properly entertain a motion to disqualify an attorney who had allegedly violated a dis......
  • Tenley & Cleveland Park v. Bd. of Zon. Adj., No. 87-468.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 17, 1988
    ...that arise in the context of substantive zoning disputes before the BZA. It cites Brown v. District of Columbia Bd. of Zoning Adjustment, 413 A.2d 1276, 1280-81 (D.C. 1980), appeal after remand, 486 A.2d 37 (1984), in which the court held that the BZA had inherent authority, and the duty to......
  • Committee, Etc. v. Thompson, No. 81-1304.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 1, 1982
    ...of interest were present under the circumstances of this case. In Brown v. District of Columbia Board of Zoning Adjustment, D.C.App., 413 A.2d 1276, 1282 (1980) this court noted that "[t]he concern behind the ethics rule [DR 9-101(B)] and the similar federal statute, 18 U.S.C. § 207, is tha......
  • Request a trial to view additional results

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