In re Jones, No. 87-252.

Docket NºNo. 87-252.
Citation534 A.2d 336
Case DateDecember 02, 1987
CourtCourt of Appeals of Columbia District
534 A.2d 336
In re Dorothy W. JONES, Respondent.
No. 87-252.
District of Columbia Court of Appeals.
Submitted June 5, 1987.
Decided December 2, 1987.

Dorothy W. Jones, pro se.

Thomas H. Henderson, Jr., Bar Counsel at the time the case was submitted, and Michael S. Frisch, Asst. Bar Counsel, Washington, D.C., entered appearances for petitioner, the Office of Bar Counsel.

Before TERRY and ROGERS, Associate Judges, and NEBEKER, Associate Judge, Retired.*

PER CURIAM:


In May 1986 Bar Counsel filed with the Board on Professional Responsibility a two-count petition against respondent Jones. The first count alleged that she had violated Disciplinary Rule (DR) 6-101(A)(3) by neglecting a legal matter1 and DR 1-102(A)(5) by failing to respond to the legitimate inquiries of Bar Counsel.2 The second count alleged an additional violation of DR 1-102(A)(5), again by failing to respond to the legitimate inquiries of Bar Counsel. In accordance with D.C.Bar R. XI, § 7(2), a

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hearing committee of the Board held an evidentiary hearing. Jones, however, did not attend that hearing, nor did counsel appear on her behalf. The hearing committee found that she had committed the violations alleged by Bar Counsel and recommended that she be suspended for six months from the practice of law. Jones made no objection to the hearing committee's findings or its recommendation. The Board, in turn, adopted both the findings of the hearing committee and its recommendation for a six-month suspension, again without objection from Jones. In this court Jones has not filed a brief or challenged the Board's findings and recommendation in any way.

We incorporate by reference the report of the Board, which is attached to this opinion as Appendix I. Because the Board's findings are supported by substantial evidence, we are bound to accept them. See, e.g., In re Smith, 403 A.2d 296, 302-303 (D.C. 1979). In considering the recommended sanction, we note that Jones not only has failed to contest the current charges but also has a past record of disciplinary violations, see In re Jones, 521 A.2d 1119 (D.C. 1986), which may properly be taken into account in imposing a sanction here. In re Rosen, 481 A.2d 451, 455 (D.C. 1984) (citing cases); In re Roundtree, 467 A.2d 143, 148 (D.C. 1983). We conclude that the Board, in the exercise of its discretion, has made a reasonable recommendation, and accordingly we adopt it. See In re Hines, 482 A.2d 378, 386 (D.C. 1984); In re Smith, supra, 403 A.2d at 303.

It is therefore ORDERED that respondent, Dorothy W. Jones, is hereby suspended from the practice of law in the District of Columbia for a period of six months. Her suspension shall take effect thirty days from the date of this opinion. D.C. Bar. R. XI, § 19(3).

---------------

Notes:

* Judge Nebeker was an Associate Judge of this court at the time this case was submitted. His status changed to Associate Judge, Retired, on September 1, 1987.

1. DR 6-101(A) provides in part:

A lawyer shall not:

* * * * * * *

(3) Neglect a legal matter entrusted to [her].

2. DR 1-102(A) provides in part: A lawyer shall not:

* * * * * *

(5) Engage in conduct that is prejudicial to the administration of justice.

---------------

TERRY, Associate Judge, concurring:

I join in the court's opinion and order, but with some misgivings. I am quite troubled by the notion that failure to respond to an inquiry from Bar Counsel, however legitimate that inquiry may be, may be deemed a violation of DR 1-102(A)(5). I do not believe this rule provides adequate notice that such an omission is punishable as a disciplinary violation, separate and distinct from the substantive violation which Bar Counsel may be investigating. Due process requires more. Specifically, it requires "that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972); accord, e.g., United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926); Woods v. District of Columbia Nurses' Examining Board, 436 A.2d 369, 373-374 (D.C. 1981). In my view, DR 1-102(A)(5) does not meet this constitutional standard when applied to an attorney's mere failure to respond to an inquiry from Bar Counsel.

There are, to be sure, several cases — one of which involved this same respondent — in which this court has imposed disciplinary sanctions under DR 1-102(A)(5) for failure to respond to Bar Counsel's inquiries. In re Jones, 521 A.2d 1119 (D.C. 1986); In re Haupt, 444 A.2d 317 (D.C. 1982); In re Lieber, 442 A.2d 153 (D.C. 1982); In re Whitlock, 441 A.2d 989 (D.C. 1982); In re Russell, 424 A.2d 1087 (D.C. 1980); In re Willcher, 404 A.2d 185 (D.C. 1979). But none of the respondents in those cases offered any challenge, constitutional or otherwise, to the use of DR 1-102(A)(5) in this manner. Thus the constitutionality of DR 1-102(A)(5), as applied to failure-to-respond situations, remains an open question.

The one case in which this issue has been raised before this court is In re James, 452 A.2d 163 (D.C. 1982), cert. denied, 460 U.S. 1038, 103 S.Ct. 1429, 75 L.Ed.2d 789 (1983). In James, however, the respondent attorney had failed to raise it before the Board, and as a result we held that it had been waived. Id. at 168. What happened in James happened in this case as well. Respondent

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Jones not only failed to raise this issue before the Board; she failed to raise any issue before the Board. She has not filed any pleadings or appeared, either personally or by counsel, before the hearing committee, the Board, or this court. In these circumstances James precludes us from addressing the due process question here.

I write this separate opinion because I have serious doubts about treating an attorney's failure to respond to the inquiries of Bar Counsel as a separate disciplinary violation, although it may well have some bearing on the sanction which the court chooses to impose. Sooner or later someone will preserve his or her right to raise the issue in this court, and then we shall be forced to consider it.

NEBEKER, Associate Judge, Retired, concurring:

I write to disassociate myself from Judge Terry's invitation for a case presenting an issue about which he has an opinion. Should a disciplinary case be presented in the future where failure to respond to Bar Counsel's inquiry is charged under DR 1-102(A)(5), I have little doubt that members of the Bar are now on notice of "what is prohibited" even though Judge Terry would have it otherwise. After he expressed a desire to expound on this point in a separate concurrence, Bar Counsel was requested to file a supplemental memorandum addressing it. I attach it as Appendix II so the Bar may be on notice as to this court's interpretation of DR 1-102(A)(5). See Wainwright v. Stone, 414 U.S. 21, 22, 94 S.Ct. 190, 192, 38 L.Ed.2d 179 (1973). The Bar will also be on notice that Bar Counsel will, as he has done, charge as a separate violation of DR 1-102(A)(5) failure to respond to his inquiry. This issue of adequate notice should now be deemed closed.

APPENDIX I
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
Bar Docket Nos.: 291-85
 173-85
                
IN THE MATTER OF: DOROTHY W. JONES, RESPONDENT.
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This matter is before the Board on Professional Responsibility on the report of Hearing Committee Number Seven, which on November 26, 1986, recommended that Respondent be suspended from the practice of law for six months.

In May 1986, Bar Counsel filed a two-count petition against Respondent involving two different complainants. In the petition, Bar Counsel alleged violations by Respondent of the following:

Count I

DR 6-101(A)(3) — neglect of a legal matter

DR 1-102(A)(5) — failure to respond to the legitimate inquiries of Bar Counsel

and

Count II

DR 1-102(A)(5) — failure to respond to the legitimate inquiries of Bar Counsel

An evidentiary hearing in this matter was held on July 16, 1986. Respondent did not appear at the hearing, nor was she represented by counsel.1

The Hearing Committee concluded that Respondent had violated DR 6-101(A)(3) and DR 1-102(A)(5) as charged by Bar Counsel and recommended that Respondent be suspended from the practice of law for six months. The Board on Professional Responsibility agrees with the Hearing Committee's findings of fact, conclusions of law, and recommended sanction.

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Facts

Count I

On January 11, 1982, Respondent was appointed by the Honorable H. Carl Moultrie, as successor guardian of the estate of Amanda Hall, a minor, in Guardianship No. 82-72. On that date, Respondent signed a bond which acknowledged notice of her appointment as successor guardian (BX 2).

As successor guardian, Respondent was required to file a first accounting with the Probate Division of the Superior Court of the District of Columbia (Rule 305 (a) and (e) of the Superior Court Rules of Civil Procedure). Respondent failed to file the required accounting pursuant to the Superior Court rules.

On March 14, 1985, a hearing was held before Judge Iraline Barnes with regard to Respondent's failure to file the accounting. Following the hearing, an Order for Removal was entered by Judge Barnes removing Respondent as successor guardian. Judge Barnes' Order was referred to the Board on Professional Responsibility.

On August 18, 1985, Bar Counsel mailed a copy of the Order for Removal to Respondent. Respondent was directed to respond on or before August 23, 1985. Respondent did not respond to Bar Counsel's letter.

On August 27, 1985, Bar Counsel mailed another copy of the Order for Removal to...

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8 practice notes
  • In re Steinberg, No. 03-BG-801.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 30, 2004
    ...day before hearing). However, suspension, when exacerbated by other misconduct, can be for substantially longer. See, e.g., In re Jones, 534 A.2d 336, 340 (D.C.1987) (six-month suspension where respondent had a significant record of prior Reinstatement following suspension is, at times, con......
  • In re Wright, No. 97-BG-623.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 13, 1997
    ...an affirmative duty to respond to the legitimate inquiries of Bar Counsel during the course of a disciplinary investigation." In re Jones, 534 A.2d 336, 340 (D.C.1987). The failure of an attorney to respond to Bar Counsel's inquiries concerning 702 A.2d 1256 a complaint filed against him ha......
  • In re Delate, No. 90-14.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 6, 1990
    ...of neglect, each one aggravated by an additional disciplinary violation, but where there were mitigating circumstances); In re Jones, 534 A.2d 336 (D.C.1987) (per curiam) (Jones I) (six-month suspension where attorney, in one case, neglected legal matter and failed to respond to Bar Counsel......
  • Zang, Matter of, No. SB-87-0041-D
    • United States
    • Supreme Court of Arizona
    • August 30, 1988
    ...267 (1987) (suspending respondent for one year), cert. denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988). See also In re Jones, 534 A.2d 336 (D.C.Ct.App.1987) (failure to respond to legitimate inquiries of bar counsel also constitutes a violation of ethical We approve the Commiss......
  • Request a trial to view additional results
8 cases
  • In re Steinberg, No. 03-BG-801.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 30, 2004
    ...day before hearing). However, suspension, when exacerbated by other misconduct, can be for substantially longer. See, e.g., In re Jones, 534 A.2d 336, 340 (D.C.1987) (six-month suspension where respondent had a significant record of prior Reinstatement following suspension is, at times, con......
  • In re Wright, No. 97-BG-623.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 13, 1997
    ...an affirmative duty to respond to the legitimate inquiries of Bar Counsel during the course of a disciplinary investigation." In re Jones, 534 A.2d 336, 340 (D.C.1987). The failure of an attorney to respond to Bar Counsel's inquiries concerning 702 A.2d 1256 a complaint filed against him ha......
  • In re Delate, No. 90-14.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 6, 1990
    ...of neglect, each one aggravated by an additional disciplinary violation, but where there were mitigating circumstances); In re Jones, 534 A.2d 336 (D.C.1987) (per curiam) (Jones I) (six-month suspension where attorney, in one case, neglected legal matter and failed to respond to Bar Counsel......
  • Zang, Matter of, No. SB-87-0041-D
    • United States
    • Supreme Court of Arizona
    • August 30, 1988
    ...267 (1987) (suspending respondent for one year), cert. denied, 484 U.S. 1067, 108 S.Ct. 1030, 98 L.Ed.2d 994 (1988). See also In re Jones, 534 A.2d 336 (D.C.Ct.App.1987) (failure to respond to legitimate inquiries of bar counsel also constitutes a violation of ethical We approve the Commiss......
  • Request a trial to view additional results

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