Matter of Burka, No. M-39-80.

Docket NºNo. M-39-80.
Citation423 A.2d 181
Case DateOctober 21, 1980
CourtCourt of Appeals of Columbia District

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423 A.2d 181
In the Matter of Leonard W. BURKA.
No. M-39-80.
District of Columbia Court of Appeals.
Argued En Banc May 28, 1980.
Decided October 21, 1980.

Jacob A. Stein, Washington, D. C., with whom Robert F. Muse, Washington, D. C., was on the brief, for respondent.

Edwin Yourman, Asst. Bar Counsel, Washington, D. C., with whom Fred Grabowsky, Bar Counsel, Washington, D. C., was on the brief, for the Board on Professional Responsibility.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

FERREN, Associate Judge:


This disciplinary matter is before the court on a recommendation of the Board on Professional Responsibility (Board) that respondent be disbarred. In reply, respondent

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asserts that he was suffering from a mental disability when he appeared pro se before the Hearing Committee, and that the Board accordingly denied him due process when it declined to grant his request for hearing de novo before the Hearing Committee. We reject that contention,1 adopt the recommendation of the Board, and order disbarment.

I.

On January 30, 1979, the District of Columbia Bar (petitioner) instituted formal disciplinary proceedings against respondent based upon a referral by Superior Court Judge Margaret A. Haywood. Respondent was charged with violating six disciplinary rules in the Code of Professional Responsibility: (1) DR 9-102(A), failure to deposit funds of client in a separate account; (2) DR 9-102(B)(2), failure to place securities in a safe place "as soon as practicable"; (3) DR 9-102(B)(3), failure to "maintain complete records of all funds" of a client coming into his possession; (4) DR 9-102(B)(4), failure to deliver promptly to his client (the estate) property owned by the ward; (5) DR 1-102(A)(4), "dishonesty, fraud, deceit, or misrepresentation"; and (6) DR 1-102(A)(5), conduct "prejudicial to the administration of justice."

Respondent did not file an answer, but he participated — and conducted his own defense — at the Hearing Committee proceeding on April 25, 1979. He testified in his own behalf but offered no other witnesses or documentary evidence. At the conclusion of the hearing, respondent requested and received seven days within which to submit to the Hearing Committee a written explanation of the withdrawals and expenditures of the estate funds that he concededly had commingled with his own.2 He failed to deliver that explanation. On June 21, 1979, the Hearing Committee found:

1. That Respondent had practiced law in the District of Columbia for 21 years with no prior discipline assessed against him, and that he has an "a-v" rating in Martindale Hubbell.

2. That on May 12, 1975, Respondent was appointed successor conservator of the Estate of Rose E. Leonard, adult ward, by the Superior Court of the District of Columbia (Civil Action No. 7034-74), and that Respondent was removed as successor conservator on July 14, 1977.

3. That between October 10, 1975 and May 21, 1976, Respondent made 15 separate unauthorized withdrawals from the estate checking account in the total amount of $41,000.00.

4. That from July 16, 1975 to August 2, 1977, Respondent made deposits from unidentified sources into the estate checking account in the total amount of $29,446.

5. That after Respondent's removal as successor conservator of the estate, the Auditor Master found him accountable as of September 27, 1977, for a balance of $37,390.20, of which $11,661.00 represented missing funds.

6. That by December 14, 1977, Respondent had paid into the estate the total balance for which he was then accountable.

7. That the Auditor Master also assessed Respondent $50.00 to be paid to the Clerk of the Superior Court, but the record did not reveal whether or not this charge had been paid.

8. That Respondent himself removed the moneys from the Ward account but claims to have no recollection of how he

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spent or otherwise used the diverted money and had never searched his records to try to find out.

The Hearing Committee concluded there was clear and convincing evidence that respondent had violated the following disciplinary rules:

(1) DR 9-102(A), in that Respondent failed to keep all moneys from the ward's account deposited at all times in a separate, identifiable bank account;

(2) DR 9-102(B)(3), in that Respondent did not maintain complete records of all the funds of the ward's account coming into his possession and did not render appropriate accounts regarding these funds;

(3) DR 9-102(B)(4), in that Respondent did not promptly pay over to the Court on behalf of the ward all the funds in Respondent's possession which the ward's account was entitled to receive;

(4) DR 1-102(A)(4), in that Respondent's unauthorized withdrawals of money for his own use from the ward's account constituted dishonesty and deceit; and

(5) DR 1-102(A)(5), in that Respondent's conduct was prejudicial to the administration of justice when he did not turn over assets of the ward account promptly to the Court or to the conservator who succeeded him, when he failed to submit bank statements to the Auditor upon request, and when he failed to cooperate with Bar Counsel on this matter.3

Two members of the Hearing Committee recommended disbarment; the third member recommended a five-year suspension.

On August 17, 1979, respondent's counsel filed a Motion to Stay Proceedings Before the Disciplinary Board and Motion for an Order Remanding this Matter to the Hearing Committee for Purposes of Reopening the Record for the Taking of Additional Testimony. In support of the motion counsel asserted that (1) respondent had not conferred with counsel in preparing for the hearing, nor had counsel been present at the hearing to assist respondent; (2) an emotional disorder had prevented respondent from presenting a proper defense or presenting evidence available to him; (3) respondent was currently being treated by a psychiatrist whose findings corroborate respondent's inability to evaluate, prepare, and assist in his defense; (4) respondent failed to take advantage of his right to call available character witnesses; (5) "although [despondent was aware of his problem, he was unable to cope with it because of a mental disability;"4 and (6) in order to present the mitigating circumstances, expert testimony is required.

Petitioner opposed the motion on the ground that any evidence relating to respondent's character, reputation, and mental condition could be put directly before the Board in the form of affidavits. The Board heard the motion on September 13, 1979. Although the Board concluded that respondent had not established a sufficient basis for granting the motion, it offered respondent an opportunity to enlarge the record (through reopened proceedings before the Hearing Committee) if he voluntarily would agree to refrain from the practice of law until his disciplinary proceeding had been terminated.5 In a letter from his

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counsel dated September 18, 1979, respondent "decline[d] the Board's [offer]; and . . . argue[d] that the Board's suggestion confronts him with an untenable dilemma which causes him to forego one right if he is to be allowed to assert another."

On October 29, 1979, respondent submitted a memorandum for consideration by the Board, attaching statements from clients, members of the District of Columbia Bar, and others. In response, Bar Counsel filed his brief and modified his earlier recommendation, suggesting that the alleged misconduct should result only in a suspension, not in disbarment.

On March 27, 1980, the Board issued an Opinion and Recommendation to this court, adopting the Hearing Committee's findings and unanimously recommending that respondent be disbarred. Respondent filed exceptions.

II.

Respondent urges the court to reject the Board's recommendation of disbarment, contending that the Board's denial of his request for hearing de novo before the Hearing Committee violated due process. More specifically, respondent contends that (a) an attorney facing possible disbarment is entitled to a full opportunity to be heard; (b) this right includes more than a mere opportunity to be physically present at a disciplinary proceeding; it presupposes a hearing at which the attorney's mental faculties are sufficient to help advance his defense, absent which disbarment offends the Constitution; (c) the facts demonstrate that respondent was mentally incompetent at the time he appeared before the Hearing Committee; (d) respondent asserted his right to a new hearing in a timely manner; (e) the Board erred in conditioning his due process right to a new hearing on his willingness to give up the practice of law i. e., his right to earn a livelihood) pending completion of the disciplinary proceeding; and (f) given the Board's (and ultimately this court's) substantial reliance on the Hearing Committee proceeding, respondent's inability to develop his defense at this "critical stage" has resulted in serious injury. We conclude that this argument has no merit.

A. Initially, we note that this court's disciplinary rules, D.C.App. R. XI, call for

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suspension of an attorney (without reaching the issue of ethical responsibility) during the period in which he or she is incapacitated by mental infirmity. Id. §...

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25 practice notes
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...to the court or to the successor conservator has been held to be conduct ``prejudicial to the administration of justice.'' In re Burka, 423 A.2d 181 (D.C. 1980). In Russell, 424 A.2d 1087 (D.C. 1980), the court found that failure to keep the Bar advised of respondent's changes of address, a......
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...to the court or to the successor conservator has been held to be conduct ``prejudicial to the administration of justice.'' In re Burka, 423 A.2d 181 (D.C. 1980). In Russell, 424 A.2d 1087 (D.C. 1980), the court found that failure to keep the Bar advised of respondent's changes of address, a......
  • MATTER OF ADDAMS, No. 88-867
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 6, 1990
    ...of attorneys and erodes public confidence in our legal system"). This court, sitting en banc, made clear in In the Matter of Burka, 423 A.2d 181 (D.C. 1980), that disbarment would be the sanction for intentional misappropriation. The court rejected the suggestion that alleged mitigating fac......
  • In re Hessler, No. 87-1233.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 27, 1988
    ...sanction in this jurisdiction. In re Burton, 472 A.2d 831 (D.C. 1984); In re Minninberg, 485 A.2d 149 (D.C. 1984); In re Burka, 423 A.2d 181 (D.C. 1980); In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (D.C.C. 1966). See also, In re Hines, 482 A.2d 378, 386 Page 713 B. Respondent's Miscond......
  • Request a trial to view additional results
23 cases
  • MATTER OF ADDAMS, No. 88-867
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 6, 1990
    ...of attorneys and erodes public confidence in our legal system"). This court, sitting en banc, made clear in In the Matter of Burka, 423 A.2d 181 (D.C. 1980), that disbarment would be the sanction for intentional misappropriation. The court rejected the suggestion that alleged mitigating fac......
  • In re Hessler, No. 87-1233.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 27, 1988
    ...sanction in this jurisdiction. In re Burton, 472 A.2d 831 (D.C. 1984); In re Minninberg, 485 A.2d 149 (D.C. 1984); In re Burka, 423 A.2d 181 (D.C. 1980); In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (D.C.C. 1966). See also, In re Hines, 482 A.2d 378, 386 Page 713 B. Respondent's Miscond......
  • Matter of Burton, No. M-143-82.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 11, 1984
    ...is disbarred from the practice of law in the District of Columbia. See In re MeClellen, No. M-51-80 (D.C. March 26, 1981); In re Burka, 423 A.2d 181 (D.C.1980) (en banc); In re Newsome, No. D-34-79 (D.C. November 21, 1979); In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (1966) (per curiam......
  • In re Hopkins, No. 95-BG-845.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 31, 1996
    ...investigation of respondent's conduct as conservator) 10 Reback, supra, 487 A.2d at 238-39 (forging signature on pleading); In re Burka, 423 A.2d 181 (D.C.1980) (en banc) (failing, as removed conservator, to turn over estate assets promptly and to submit bank statements to auditor); Keiler,......
  • Request a trial to view additional results

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