In re Banks
| Decision Date | 23 November 1987 |
| Docket Number | No. 87-97.,87-97. |
| Citation | 561 A.2d 158 |
| Parties | In re Simon BANKS, Respondent. |
| Court | D.C. Court of Appeals |
This court's Committee on Unauthorized Practice of Law ("petitioner" or "Committee") filed a petition pursuant to D.C.App. R. 49(d) from an order to show cause why respondent, Simon Banks, should not be held in contempt for, and/or permanently enjoined from, violating D.C.App.R. 49(b) concerning the unauthorized practice of law.1 However, the Committee later withdrew its request for contempt, fine, and imprisonment on April 13, 1987.2 Thus, the court has before it only the Committee's remaining requests for equitable relief in the form of (1) injunctive relief, (2) an accounting by respondent of all fees received, (3) restitution of all fees received, and (4) "notice by respondent, both by advertisement in the Washington Post Magazine and by letter to all clients that he is not a lawyer and is not authorized to provide any legal services." The undersigned was assigned to conduct this proceeding.
The filing of the petition which initiated these proceedings was prompted by complaints received by the Committee in 1984 and 1985 concerning respondent. In response to those complaints, the Committee members met with respondent to discuss the matter and the terms of a possible settlement agreement. On September 12, 1985, the Committee and respondent entered into a settlement agreement. In its petition, the Committee alleges that respondent violated the 1985 settlement agreement,3 as well as our Rule 49(b).
On April 22, 1987, respondent filed a motion for partial summary judgment in response to which the Committee, on April 30, 1987, filed an opposition and a cross-motion for summary judgment. Argument on these motions was heard on May 12, 1987, and the court, in a Memorandum Opinion and Judgment filed May 26, 1987, denied respondent's motion for partial summary judgment and petitioner's cross-motion for summary judgment. It issued a temporary restraining order pursuant to Super.Ct.Civ. R. 65(b) restraining respondent from (1) practicing law in the District of Columbia, and (2) giving the public the impression that he is authorized to practice law in the District of Columbia, in violation of D.C. App.R. 49(b).4
At the commencement of the evidentiary hearing, respondent asserted that the court no longer had jurisdiction over the matter because he had just filed a removal petition in the United States District Court. After hearing argument on whether the hearing should be stayed, the court adjourned the hearing pending notice in relation to the petition for removal to the District Court. The United States District Court entered an order, dated June 15, 1987, dismissing the removal proceeding. The evidentiary hearing resumed on June 24, 1987, and continued on June 25 and July 7, 1987.5
Upon consideration of the pleadings filed, the testimony elicited at the hearing, the documentary evidence, and the various memoranda of law filed in this proceeding, the court makes findings of fact and conclusions of law.
1. It is undisputed that respondent, a 1975 law school graduate, is not and never has been a member of the Bar of the District of Columbia, or any other bar.
2. It is also undisputed that respondent held the position of hearing examiner at the District of Columbia Office of Human Rights from 1975-1976 and later at the District of Columbia Rental Accommodation Office.
3. From September of 1986 through April of 1987, respondent advertised in the weekly Washington Post Magazine. The advertisement reads as follows:
JOB PROTECTORS VICTIMS OF JOB DISCRIMINATION
On account of race, sex, handicapped status, promotion, demotion, rif ed, harassment, unemployment compensation. For representation by former hearing examiners also known as administrative law judges call: (202) 863-2292, 24 hours.
(Emphasis added.)
From September through October of 1986, the advertisement appeared in the Washington Post under the heading of "Legal Services." In October, 1986, respondent requested that the advertisement be placed under the heading of "Unique Services." This change became effective in November of 1986, and the advertisement continued to run under "Unique Services" through April of 1987. The only other changes were the size of the advertisement, which increased from one inch to two inches, and then to three inches.
In addition, the Washington Post ran a promotional piece concerning the success of respondent's advertising campaign in the Washington Post Magazine in January of 1987, stating that "Job Protectors" is a "legal service," indicating that the Washington Post had concluded from its dealings with respondent that he was a practicing lawyer.
4. Respondent advertised Job Protectors over a local radio station, WHUR-FM, from February 24 to March 11, 1987. The text of the advertisement recorded by respondent reads as follows:
Hello. My name is Simon Banks, Chief Executive Officer of Job Protectors and a former chief hearing examiner. Have you been a victim of job discrimination or been treated differently than employees of other races, sex and handicap status? Has your employer harassed you or discriminated against you with respect to a promotion, seniority, penalty, workman's compensation or employment benefits? If so call Job Protectors at 543-7870. Job Protectors is a consulting firm that provides representation by former hearing examiners that are experienced in employment discrimination matters. If you are a victim of wrongful termination and require representation before the Equal Employment Opportunity Commission, the Office of Employee Appeals, the Merit System Protection Board and any grievance hearing or administrative appeal call Job Protectors at 543-7870. Job Protectors can protect your employment rights. Call 543-7870. That's Job Protectors, 543-7870.
5. Respondent advertised Job Protectors in the May 1987-88 edition of the Washington Metropolitan Yellow Pages under "Employment Agencies." The advertisement reads as follows:
JOB PROTECTORS
On Account of Race, Sex, Handicapped Status, Promotion, Demotion, Rif'ed, Harassment, Unemployment & Workman's Compensation.
Representation by former Hearing Examiners
Administrative Law Judges
Washington DC................. 543-7870
24 Hours...................... 863-2292 (Emphasis added.)
6. Respondent regularly distributes business cards that read as follows:
SIMON BANKS, J.D. (202) 863-2292
Adm. Trial Advocate (202) 543-7870
JOB PROTECTORS
* Hearing Examiners, Lobbyists, Mediators *
Consultant Representation at: EEOC, Human Rights, MSPB, OEA, SBA, DOL, Rent Control Grievance Proceedings, Unemployment Comp., U.S. Congress, Minority Business Lobbyist
Washington, D.C. 20035. (Emphasis added.)
7. Respondent's witnesses testified that he distributed a firm resume which reads as follows:
This is to acquaint you with Job Protectors and inform you of the services we provide.
Job Protectors consist of former Hearing Examiners and EEO officers before whom law firms have represented their respective employer/employee clients in connection with claims of discrimination, harassment, et cetera. Hearing Examiners have also been known as Administrative Law Judges.
Each of our former Hearing Examiners, [advocate-representatives] possess law degrees and are skilled and experienced in representing aggrieved employees before EEOC, Offices of Civil Rights; MSPB, grievance proceedings and adverse action matters.
Please feel free, to recommend to us any past or present employee who feels he/she has been treated unfairly and/or in a disparate manner.
Our card is enclosed for your reference. Also, the enclosed circular may be posted at your discretion.
We maintain strict confidentiality in connection with all matters.
Further, we also represent aggrieved employees at unemployment compensation appeal hearings. (Emphasis added.)
8. Petitioner and Respondent presented evidence that Respondent used letterhead stationery which described Job Protectors as: administrative hearing advocates; hearing examiners; advocates; mediators; arbitrators; lobbyists; and personal consultants who have been consultant representatives at EEOC; Human Rights; MSPB; OEA; SBA-Rent Control; grievance proceedings; unemployment compensation; United States Congress; and Minority Business Lobbyist. (Emphasis added.)
9. Petitioner presented evidence that respondent distributed to potential clients a copy of a Washington Post newspaper article identifying him as an "attorney," and a letter introducing Job Protectors and identifying them as "administrative law judges."
10. Petitioner and respondent presented evidence that respondent regularly presented to clients for their perusal and signature a disclosure statement, which reads as follows:
DISCLOSURE OF REPRESENTATIVE CAPACITY
I, ______________, hereby acknowledge that I have been advised that Job Protectors/Administrative Hearing Advocates is not a law firm and is not licensed to practice law.
I further acknowledge that I have been advised that Simon Banks, Juris Doctor, is not licensed to practice law, and that Simon Banks is a former chief Hearing Examiner authorized to hear, preside over and decide employment discrimination cases, grievance hearings, and rent control cases.
I have been further advised that from 1975, Simon Banks, J.D., has been authorized to convene and conduct trial-type hearings over [EEO] employment cases as chief hearing examiner, before whom attorneys and major law firms have represented litigants, tried, and argued cases on behalf of their respective clients in matters involving discrimination in employment, on account of age, race, sex, sexual harrassment, handicapped status,...
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