In re Banks

• Decision Date: 29 August 2002
• Docket Number: No. 96-SP-817, No. 97-SP-1629, No. 99-SP-1025, No. 97-SP-1760 to 97-SP-1762, No. 99-SP-1192.
• Citation: 805 A.2d 990
• Parties: In re Simon BANKS, Appellant.
• Court: D.C. Court of Appeals

805 A.2d 990

In re Simon BANKS, Appellant.

Nos. 96-SP-817, 97-SP-1629, 97-SP--SP-1762, 99-SP-1025, 99-SP-1192.

District of Columbia Court of Appeals.

Argued June 24, 2002.

Decided August 29, 2002.

Simon Banks, pro se.

Anthony C. Epstein, Washington, DC, for the Committee on Unauthorized Practice of Law.

John R. Fisher, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, was on the brief, for the United States.

Stuart F. Pierson, filed a brief pro se.

Before WAGNER, Chief Judge, and SCHWELB and FARRELL, Associate Judges.

FARRELL, Associate Judge:

These cumulative appeals challenge in substance an adjudication of civil contempt and a later conviction for criminal contempt both resulting from appellant's disregard of injunctions issued by this court against the unauthorized practice of law. He presents a barrage of arguments why both of those adjudications exceed our authority to regulate his conduct, in particular his business of representing persons before federal and local administrative agencies. We sustain the contempt orders in all respects and uphold as well the order directing appellant to pay partial attorney's fees of members of the Committee on Unauthorized Practice of Law (the "CUPL" or Committee), which sought to enforce the court's prior injunction.

I. Background

Appellant, hereafter Banks, has never been a member of the Bar of this court or any other court, federal or state, despite graduating from law school in 1975. His confrontations with the CUPL and this court have spanned nearly three decades. In 1984 and 1985, the CUPL received numerous complaints about Banks and his company, Job Protectors, concerning his use of advertising materials and statements, oral and written, to solicit legal business and to represent persons before federal and local administrative and regulatory agencies. In 1985, Banks and the CUPL reached a settlement agreement whereby, among other things, he would cease advertising the words "former administrative law judge," "esquire" or other words suggesting his membership in the legal profession in soliciting clients for representation before various agencies. When he failed to abide by these conditions, the CUPL sought injunctive and other relief from this court under then Rule 49(b) of the rules of this court.

Following evidentiary hearings in 1987, Senior Judge Gallagher of this court¹ found that Banks "had held himself out to the public as being a qualified member of the District of Columbia Bar by creating, or fostering, the illusion that he is licensed to practice law in the District of Columbia," in violation of Rule 49(b). In re Banks, 561 A.2d 158, 163 (D.C.1987) (Banks I).² Accordingly, the judge enjoined Banks, among other things, from:

(1) Representing any person, other than himself, or any corporation, association, partnership, organization, or other entity 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 ... any ... term or description which reasonably denotes that [he] is licensed to practice law in the District of Columbia;

(3) Using ... any ... term or description... which reasonably denotes that [his] former employment as a hearing examiner constitutes a qualification or license to practice law in the District of Columbia; [and]

(4) Using any advertising materials, business cards, firm resumes, personal resumes, firm descriptions, stationery, personalized forms or any other business documents relating to representation of individuals before administrative agencies or courts in this jurisdiction which do not expressly state in a separate paragraph and in one complete sentence at the outset of the document that [he] is "not admitted to the practice of law in the District of Columbia or any other jurisdiction."

Id. at 168. In 1989, this court denied Banks's request for rehearing en banc. See Banks I, 561 A.2d at 158

(caption).

A. The Civil Contempt

Despite this injunction, Banks continued to misrepresent himself as the functional equivalent of a lawyer. See, e.g., Banks v. District of Columbia Dep't of Consumer & Regulatory Affairs, 634 A.2d 433, 438 (D.C.1993) (Banks II). In 1992, therefore, the CUPL initiated civil contempt proceedings against him for alleged violations of the 1987 injunctive order. In May 1994, the Honorable Richard A. Levie of the Superior Court, designated a judge of this court pursuant to D.C.Code § 11-707(a) (2001), held an evidentiary hearing on the contempt petition. During this hearing, the CUPL presented substantial testimonial (eleven witnesses) and documentary evidence (forty-one pieces) that Banks had failed to comply with the 1987 injunction. The evidence revealed, inter alia, that Banks told potential clients he was an attorney, even at times following his signature with "Esq." or pointing to a license on the wall that indicated he was an attorney; that he used stationery with printed terms such as "Representation by Former Administrative Law Judges" and "Nationwide Representation" without the required disclaimers;³ and that he had advertised in the Federal Times, in the American Weekly, and on local radio that he was a former administrative law judge. Banks himself did not attend the hearing, although he had been made aware of the date, time, and place.

In January 1995, Judge Levie issued lengthy findings of fact and concluded that Banks had "flagrantly, intentionally, repeatedly and contumaciously violated virtually every provision of the Court's 1987 injunction" (Order # 18). Indeed, the judge explained, "[t]he only difference between this Court's findings and those of Judge Gallagher is the passage of time." Banks "continued to use terms ... calculated to mislead ... unsuspecting members of the public unlearned in the law"; he "fail[ed] to include the required disclaimer in the required placement on all his business papers"; and, among other similar misrepresentations, he "continu[ed] to refer to himself as going to court and [had] his secretary indicate that he was in court when he was not available to callers." Consequently, Judge Levie decided that "an expanded and stricter injunction is warranted," and enjoined Banks from performing any of fourteen separate activities, among which are:

* * * *

(3) Using such terms to describe himself or his qualifications as "administrative law judge[ ]," "administrative trial advocate," any abbreviation of the foregoing terms, or any other similar term or description also which reasonably denotes that [Banks's] former employment as a hearing examiner constitutes a qualification or license to practice law in the District of Columbia;

(4) Describing his business as providing legal representation in any field, describing his professional or business activity as going to, or acting in court, or describing his business as providing nationwide representation; ...

(6) Using any advertising materials, business cards, firm resumes, personal resumes, firm descriptions, station[e]ry, personalized forms or any other business documents relating to representation of individuals before administrative agencies or courts in this jurisdiction which do not expressly state:

THIS IS TO ADVISE THAT SIMON BANKS, AND SIMON BANKS T/A JOB PROTECTORS, IS NOT ADMITTED,

AND HAS NEVER BEEN ADMITTED TO PRACTICE LAW IN THE DISTRICT OF COLUMBIA, OR ANY OTHER JURISDICTION. HE IS NOT AUTHORIZED TO REPRESENT ANY PERSON OR ENTITY BEFORE ANY COURT IN THE DISTRICT OF COLUMBIA. HE IS NOT AUTHORIZED TO GIVE OPINIONS CONCERNING ANY PERSON'S LEGAL RIGHTS.

This statement shall be printed, in all instances, in bold-face, underscored, in all capital letters. It shall be printed at the beginning of all documents not signed by customers in a separate paragraph in typeface no smaller than the largest typeface of the remainder of the document. With respect [to] each document that a customer signs, this statement shall appear at the beginning, in a separate paragraph, in typeface no smaller than the largest typeface of the remainder of the document; and the customer shall initial each line and then sign immediately below the statement indicating the actual date of execution; (7) Continuing to represent any client, person or entity presently being represented without giving such person or entity prompt notice of [Banks's] lack of admission to the District of Columbia Bar, and without providing the notice required in paragraph (6) above and obtaining from such person or entity an initialed, signed and dated acknowledgment of that notice, ...

(13) Otherwise engaging in any manner in the practice of law in the District of Columbia, as that term is defined in [Rule 49(b)(3)], or in any conduct that holds Respondent out as authorized or qualified to practice law in the District of Columbia, or in any other conduct prohibited by [Rule 49(b)]; and

(14) Representing any person, other than himself, or any corporation, association, partnership, organization or other entity before any federal agency by relying exclusively on [Rule 49(c)(4)] as the basis for such representative capacity.

In regard to paragraph (14), Judge Levie withdrew Banks's privilege to use Rule 49(c)(4) "as the basis to appear before any federal agency,"⁴ but added this qualification: "Any such federal agency may permit [Banks] to practice before it, so long as the agency rules do not rely exclusively on Rule 49(c)(4) as the basis for an individual to represent persons before it." The judge expressly did not address practice by Banks before regulatory agencies of the District of Columbia, since at the time there was "no exception in Rule 49 [for] practice before District of Columbia agencies by persons not admitted to practice law in the District of Columbia."

Within Order #18, Judge Levie also permitted members of the CUPL to recover $63,997.85 in attorney's fees and costs that related to the adjudication of contempt. We...