IN RE RICHARDSON

• Citation: 692 A.2d 427
• Decision Date: 17 April 1997
• Docket Number: No. 95-BG-639,95-BG-639
• Parties: In re T. Carlton RICHARDSON, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: Court of Appeals of Columbia District

692 A.2d 427

In re T. Carlton RICHARDSON, Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 95-BG-639.

District of Columbia Court of Appeals.

Argued February 12, 1997.

Decided April 17, 1997.

T. Carlton Richardson, pro se.

Donna M. DeSilva, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel, was on the brief, for the Office of Bar Counsel.

Before FERREN and REID, Associate Judges, and GALLAGHER, Senior Judge.

FERREN, Associate Judge:

Respondent T. Carlton Richardson, a member of the District of Columbia Bar, takes exception to the Report and Recommendation of the Board on Professional Responsibility. The Board asks us to suspend Richardson from practice in the District of Columbia for three years as reciprocal discipline for conduct that caused Richardson to resign voluntarily from the Florida Bar in 1992. Richardson argues that his Florida resignation was not "discipline" and, therefore, that the imposition of reciprocal discipline, including his interim suspension without an evidentiary hearing, is inconsistent with D.C. Code § 11-2503(b) (1995 Repl.) and violates his constitutional rights to due process and equal protection of the laws. We conclude that Richardson's Florida resignation while a disciplinary proceeding was pending against him amounted to "discipline," and that this court's imposition of reciprocal discipline under the circumstances will not violate either his statutory or his constitutional rights. We adopt the Board's recommendation and accordingly order Richardson suspended from the practice of law in the District of Columbia for three years, with reinstatement conditioned upon proof of fitness.

I.

In its report and recommendation, the Board presented the following facts. Between1987 and 1992, Richardson served as trustee and attorney for the Jacqueline Overton Trust. The Florida Bar received a complaint that Richardson had taken excessive fees from the trust. While this complaint was pending, Richardson voluntarily filed a petition to resign from the Florida Bar. The Supreme Court of Florida granted Richardson's petition, with leave to seek reinstatement after three years. See Florida Bar v. Richardson, Case No. 80,073, 604 So.2d 489 (Fla. Aug. 27, 1992). Pursuant to D.C. Bar R. XI § 11(b), (d), Bar Counsel notified this court with a certified copy of a Supreme Court of Florida Order accepting Richardson's resignation from the bar, and recommended imposition of reciprocal discipline. Richardson excepted, arguing that his resignation was not "discipline" and that this court accordingly could not suspend him, even on an interim basis, without an evidentiary hearing. On June 27, 1995, we ordered Richardson's temporary suspension from the practice of law, without a hearing, pending final disposition of the proceeding; ordered Bar Counsel to inform the Board "of his position regarding reciprocal discipline"; and ordered Richardson to "show cause before the Board . . . why identical, greater or lesser discipline should not be imposed in the District of Columbia." Richardson filed several motions pressing constitutional arguments, as well as a defense under D.C. Code § 11-2503(b). The Board ultimately concluded, however, that Richardson's resignation in Florida under threat of the disciplinary proceeding amounted to "discipline"; that Richardson had waived his due process right to an evidentiary hearing on the charges against him by voluntarily resigning from the Florida Bar; and that reciprocal discipline — a three year suspension plus proof of fitness for reinstatement — should be imposed.¹ Richardson filed timely exceptions to the Board's report and recommendation.

II.

Richardson's principal arguments can be summarized as follows:

1. D.C. Code § 11-2503(b) does not authorize the use of reciprocal discipline based on a disposition (including a hearing) in another jurisdiction, and thus Rule XI § 11 is invalid.

2. In any event, because Richardson's resignation did not result in a finding of misconduct, it was not "discipline" that could serve as a basis for reciprocal discipline under D.C. Bar R. XI § 11.

3. The reciprocal disciplinary proceeding under Rule XI § 11 violates Richardson's rights to due process and equal protection of the laws in three ways: (a) it authorizes an interim suspension without a hearing; (b) it permits imposition of reciprocal discipline upon resignation from the bar of Florida, without a hearing in the District of Columbia on whether Richardson, knowingly and voluntarily, not only waived his right to a Florida hearing on the charged misconduct but also, in the absence of a Florida hearing, waived his right to a District of Columbia hearing on that conduct; and (c) it shifted to Richardson the burden of persuading the Board and the court that reciprocal discipline should not be imposed.

III.

Richardson contends that D.C. Code § 11-2503(b) denies this court authority to impose reciprocal discipline; he says it requires the very same process for all attorneys charged with misconduct, regardless of where the alleged misconduct occurred — unless the attorney is subject to discipline under § 11-2503(a) for conviction of "an offense involving moral turpitude." Richardson cites In re Colson, 412 A.2d 1160, 1164 (D.C. 1979) (en banc), for the proposition that the mandatory language of § 11-2503 precludes adoption of the reciprocal discipline rule, D.C. Bar R. XI § 11.

D.C. Code § 11-2503(b) provides:

Except as provided in subsection (a), a member of the bar may not be censured,suspended, or expelled under this chapter until [1] written charges, under oath, against that member have been presented to the court, stating distinctly the grounds of complaint. [2] The court may order charges to be filed in the office of the clerk of the court and shall fix a time for hearing thereon. [3] Thereupon a certified copy of the charges and order shall be served upon the member personally, or if it is established to the satisfaction of the court that personal service cannot be had, a certified copy of the charges and order shall be served upon that member by mail, publication, or otherwise as the court directs. [4] After the filing of the written charges, the court may suspend the person charged from practice at its bar pending the hearing thereof.

Nothing in our rules governing reciprocal discipline is at all inconsistent with the procedural requirements of this statutory provision. Under D.C.Bar. R. XI § 11(b), Bar Counsel notifies the Board and this court with a certified copy of a disciplinary order from another jurisdiction against a member of our bar. This meets the first statutory requirement: that Bar Counsel file "written charges under oath." See D.C. Bar R. XI § 8(c); In re Morrell, 684 A.2d 361, 366-67 (D.C. 1996) (holding that statutory language is met when Bar Counsel has reason to believe truth of charges and they are specific enough to notify attorney of challenged conduct).

The statute's second requirement calls for a "hearing" which, as a constitutional matter, means an opportunity to be heard before deprivation of a significant property interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). Absent further statutory explanation, therefore, § 11-2503(b) mandates a hearing established by the rules of this court, consistent with constitutional requirements. See D.C. Code § 11-2501(a) (providing that "District of Columbia Court of Appeals shall make such rules as it deems proper respecting . . . censure, suspension, and expulsion" of bar members). D.C. Bar R. XI § 11 assures that an evidentiary hearing on the alleged misconduct will take place (absent waiver) in the jurisdiction where that conduct occurred, and that the respondent attorney will have an opportunity to be heard at a District of Columbia proceeding on whether the evidentiary hearing comported with due process. See id. § 11(c). The reciprocal discipline rule therefore meets the hearing requirement of D.C. Code § 11-2503(b).

The statute next requires service of the charges upon the attorney, as the reciprocal disciplinary rule itself, Rule XI § 11(d), requires.

Finally, the statute expressly permits this court to "suspend the person charged from practice at [the] bar pending the hearing," D.C. Code § 11-2503(b) — clear authority for a temporary suspension under D.C. Bar R. XI § 11(d) pending final disposition of the reciprocal disciplinary proceeding. Such authority does not violate the Due Process Clause. See Barry v. Barchi, 443 U.S. 55, 64-65, 99 S.Ct. 2642, 2649-50, 61 L.Ed.2d 365 (1979) (holding that state was "entitled to impose an interim suspension pending a prompt judicial or administrative hearing" where important state interest was at risk).

Nothing in the statute prohibits our establishing by court rule, see D.C. Code Bar R. XI § 11, a separate reciprocal disciplinary proceeding for attorneys found guilty of misconduct in another jurisdiction, provided, of course, that the reciprocal procedure satisfies the Constitution. Nor does the statute require all attorneys, other than those covered in § 11-2503(a), to go through the same disciplinary process in this jurisdiction, without regard to where the alleged misconduct occurred. Nothing in our reciprocal disciplinary procedures, therefore, violates § 11-2503(b).

IV.

We turn to Richardson's argument that his resignation from the Florida Bar was not "discipline" and that this court, therefore, could not properly initiate a reciprocal disciplinary proceeding against him under D.C. Bar R. XI § 11. Richardson stresses that he resigned voluntarily and that neither the Florida Bar nor the Florida Supreme Courtfound him guilty of any misconduct. Richardson further argues that, in characterizing his resignation as "discipline," the Board erroneously relied on the language of Florida rules that became effective in 1993, whereas...