Simons v. Bellinger, 77-2012

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation207 U.S. App. D.C. 24,643 F.2d 774
Docket NumberNo. 77-2012,77-2012
PartiesMorton L. SIMONS and Barbara M. Simons, Appellants, v. Edgar T. BELLINGER, as Chairman of the Committee on Unauthorized Practice of Law of the District of Columbia Court of Appeals, Individually and in his Official Capacity, et al.
Decision Date06 November 1980

Page 774

643 F.2d 774
207 U.S.App.D.C. 24
Morton L. SIMONS and Barbara M. Simons, Appellants,
Edgar T. BELLINGER, as Chairman of the Committee on
Unauthorized Practice of Law of the District of
Columbia Court of Appeals, Individually
and in his Official Capacity, et al.
No. 77-2012.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 23, 1979.
Decided Jan. 4, 1980.
Rehearing Denied Nov. 6, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Civil 75-1164).

Morton L. Simons, Washington, D. C., with whom Barbara M. Simons, Washington, D. C., was on brief, for appellants.

David P. Sutton, Asst. Corp. Counsel and John R. Risher, Jr., Corp. Counsel and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on brief for appellees.

Before MacKINNON and WILKEY, Circuit Judges and RICHEY *, United States District Judge for the District of Columbia.

Opinion for the Court filed by District Judge CHARLES R. RICHEY.

Concurring opinion filed by Circuit Judge MacKINNON.

Dissenting opinion filed by Circuit Judge WILKEY.

CHARLES R. RICHEY, District Judge:

Morton and Barbara Simons, attorneys practicing in the District of Columbia, appeal

Page 775

from a district court order awarding summary judgment to the defendants, who are members of the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law ("The Committee"). The Simonses allege that the members of the Committee maliciously harassed them during an illegal investigation into their law practice. Their appeal calls for the Court to determine the scope of immunity, if any, which must be afforded the members of the Committee under the circumstances of this case. We affirm the district court because we find that absolute immunity is an appropriate shield for the Committee activities which the Simonses have put in issue.


A. The Committee on Unauthorized Practice of Law

The District of Columbia Court of Appeals is empowered to establish rules "respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion." 1 This power is, of course, necessary to promote the best possible representation for individuals who must call upon a member of the bar for assistance. Pursuant to this power, the Court of Appeals has established three committees, all designed to promote the quality of legal representation. One of these, the Board on Professional Responsibility, is devoted to overseeing the conduct of those already admitted to the bar; the other two, the Committee on Admissions and the Committee on Unauthorized Practice of Law, are concerned with persons not yet qualified to engage in legal practice. 2 Together these three committees form a comprehensive system for the regulation of the practice of law in the District of Columbia: one committee determines who may be admitted to the bar, another disciplines attorneys, and a third committee disciplines non-members who intrude upon the court's jurisdiction by holding themselves out as authorized to practice law. The Simonses' suit is against this third entity, the Committee on Unauthorized Practice of Law.

The Committee is composed of six individuals, all appointed by the District of Columbia Court of Appeals and all members of that court's bar. The Court of Appeals has authorized the Committee to carry out the provisions of Rule 46 II of the District of Columbia Court of Appeals Rules. The most significant subsection of that rule provides:

No person shall regularly engage in the practice of law in the District of Columbia or in any manner hold himself out as authorized or qualified to practice law in the District of Columbia unless he is an enrolled active member of the Bar.

D.C.Ct.App.R. 46 II (b)(I). The rule provides specific details regarding the import of the phrase "practice of law," see id. R. 46 II (b)(2) & (3), and it also excludes from its scope attorneys who are "participating . . . before any court of the United States" or "before any department, commission or agency of the United States." Id. R. 46 II (b)(6) & (7).

The Committee is empowered to investigate and prosecute violations of Rule 46 II. In this respect, the Committee functions as both prosecutor and grand jury: it not only determines who shall be prosecuted, but also takes charge of the prosecution. E. g., In re Amalgamated Development Co., 375 A.2d 494 (D.C.App.), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54 L.Ed.2d 282 (1977). Rule 46 II (b)(8) provides that violations "shall be punishable as contempt and/or subject to injunctive relief." This limitation of remedies, of course, greatly distinguishes the Committee from a criminal prosecutor. In contrast to this familiar figure in the criminal justice system, the Committee is only concerned with a limited class

Page 776

of persons and it also lacks the authority to seek a conviction on any charge other than contempt.

B. The Complaint

Morton and Barbara Simons, plaintiffs and appellants, are attorneys licensed to practice law in New York who maintain an office in the District of Columbia. Although their practice in the District is exclusively before federal courts and agencies, this limitation is explained in neither their telephone listing nor their stationary. Commencing in April 1974, the Committee challenged the Simonses' right to maintain a law office in the District. Evidently, the Committee believed that, by virtue of their phone listing and stationery, the Simonses improperly held themselves out as authorized to practice law in the District of Columbia. An inquiry into the Simonses' practice ensued and, in due course, Mr. Simons was subpoenaed to appear before the Committee. Eventually, in May 1977, the Committee completed its inquiry without taking further action; by letter dated May 9, 1979, the Committee's chairman notified the Simonses:

"From your testimony the Committee has concluded that your practice is exclusively before the federal agencies and in related matters before the federal courts. The Committee has further concluded that while your letterhead and telephone listing constitute a technical violation of Rule 46 II, in view of all the surrounding circumstances, there has been no prejudice to the public and therefore no occasion for the Committee to take further action.

"Accordingly, the Committee has completed its investigation and has closed its file."

While the Committee was researching the matter and deliberating the need for seeking legal relief, the Simonses brought this suit. They alleged that the Committee had harassed them in violation of the first, fifth and fourteenth amendments as well as article VI, cl. 2 of the United States Constitution. 3 Although the Simonses' initial complaint sought declaratory, injunctive and monetary relief, the Committee's decision not to go forward with its suit rendered moot the declaratory and injunctive portions of the Simonses' claim. By order of March 3, 1978, the motions panel of this Court granted summary affirmance to the dismissal of the claims for injunctive and declaratory relief. 4 The remainder of the Simonses' complaint seeks to recover $150,000 in compensatory damages and an identical sum in punitive damages.

By order of October 19, 1975, the district court dismissed the Simonses' case for lack of subject matter jurisdiction. The Simonses appealed the dismissal, and, a year later, this Court reversed the judgment of the district court and remanded with instructions "to defer further action for a reasonable period of time to afford appellants an opportunity to obtain a definitive ruling as to whether their activities violate the rules of the District of Columbia Court of Appeals governing the practice of law, and to allow the unauthorized practice of law proceedings to be concluded." Simons v. Bellinger, 177 U.S.App.D.C. 270, 543 F.2d 417 (D.C.Cir.1976) (unpublished opinion). On remand, the district court entered a protective order barring all discovery until the Committee issued a definitive ruling regarding the Simonses' allegedly unauthorized practice of law. After the Committee completed its inquiry, the defendants moved for summary judgment and the district court entered an order granting their motion. C.A. No. 75-1164, Order (D.D.C.

Page 777

Sept. 6, 1977). The Simonses have appealed this order.

C. The District Court's Order

The district court's order deals tersely with the issue presented by this appeal. Ruling on the Simonses' right to monetary relief, the trial judge concluded that the "actions of Defendants in investigating Plaintiffs' practice of law were reasonable and within their lawful authority." C.A. No. 75-1164, Order, slip op. at 3 (D.D.C. Sept. 6, 1977). Apparently, the district court found that the defendants were entitled to a qualified immunity i. e., immunity only for acts done reasonably and in good faith. Yet, it is clear that the good faith of the defendants was the single most disputed material fact in the case. Thus, absent a finding that the defendant Committee members are entitled to a more protective immunity, the district court's order would have to be reversed. Before this Court, the defendants have renewed their argument that, under all the circumstances of this case, they are entitled to absolute immunity. Because we are persuaded that the defendants are essentially correct, we affirm the judgment of the district court.



A. The Immunity Doctrine

The sound operation of the judicial process requires that those most closely associated with the system be afforded some immunity from monetary damages in civil actions. Although immunity must, of course, vary with both the status and activities of each particular official, judges, prosecutors, and jurors have all been recognized as deserving some form of...

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