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In re Thomas11/12/1999
e Supreme Court has held "a party incriminated by evidence produced by a third party sustains no violation of his own Fifth Amendment rights." California Bankers Ass'n v. Shultz, 416 U.S. 21, 55 (1974) (citing Couch v. United States, 409 U.S. 322, 328 (1973); Johnson v. United States, 228 U.S. 457, 458 (1913)). The records in question were produced by the bank, and not by Attorney Thomas. Therefore, we perceive no Fifth Amendment violation.
Finally, we address the issue of whether Bar Counsel was motivated out of vindictiveness. Attorney Thomas claims that because he represented Ronald Ray in an unrelated disciplinary case, see In re Ray, 675 A.2d 1381 (D.C. 1996), Bar Counsel harbored an improper animus requiring dismissal of the charges against him. See United States v. Mangieri, 224 U.S. App. D.C. 295, 298, 694 F.2d 1270, 1273 (1982) (discussing the standards for a defense of selective prosecution).
The Board addressed this argument, and found no merit to it:
There is absolutely no credible evidence to support Respondent's theory that this investigation was launched because the Assistant Bar Counsel was biased against him. . . . The only basis for Respondent's claim of Assistant Bar Counsel's vindictiveness is his own characterization that his defense of Mr. Ray was "successful." This characterization, however, is greatly overstated as Mr. Ray was suspended from the practice of law for six months and ordered to make restitution. . . . Moreover, it is implausible that such an event would trigger any animosity in an Assistant Bar Counsel. These attorneys handle scores of cases each year, and not infrequently the result obtained is not the same as the result sought. Indeed, the most that Respondent has shown is that his defense of Mr. Ray and the investigation of himself stemming from Ms. Holmes' complaint occurred over the same general time frame and involved the same Assistant Bar Counsel.
We agree with this finding of the Board, and conclude that the contention is frivolous.
IV. Bar Counsel's Exceptions
Next, we focus on the exceptions filed by Bar Counsel. Bar Counsel claims the Board erred in failing to order Attorney Thomas to make full restitution to INA as a condition of reinstatement. A reading of the Board's recommendation reveals that the Board deferred the issue of restitution until Attorney Thomas seeks reinstatement. The Board's recommendation states:
Finally, we note the Respondent [Thomas] has never paid CIGNA/INA the $2,272.85 statutory lien. Under most circumstances, we would recommend that Respondent make restitution of misappropriated funds pursuant to Rule XI, § 3 (b). Since there is some issue as to the exact amount of the lien, we decline to recommend restitution but note that should Respondent ever seek reinstatement, he will have to address this $2,272.85 statutory lien and what he did to satisfy it. See in re Robinson, 705 A.2d 687 (D.C. 1998); In re Roundtree, 503 A.2d 1215 (D.C. 1985).
This court has adopted recommendations of the Board to defer the issue of restitution until the filing of a petition of reinstatement based on the "unsatisfactory state of the record." In re Lewis, 689 A.2d 561, 567 (D.C. 1997). See also In re Morrell, 684 A.2d 361, 372 n.5 (D.C. 1996). We are bound, however, by the Board's findings of fact, and must "enter an appropriate order." See D.C. Bar R. XI, § 9 (g). In this instance the Board concluded that INA did have a legal right to payment:
The evidence is clear and convincing that INA had a statutory lien of some amount, probably $2,272.85, and that Respondent never made any attempt to notify INA of the receipt of these funds. . . . . To the
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