default rule in District of Columbia

2016Bar Rule XI, § 11 (c) establishes 2 a default rule that this court should impose the same discipline as the original disciplining jurisdiction, see In re Chaganti, 144 A.3d 20 , 23 n.3 (D.C. 2016), ordered him to show cause why reciprocal discipline should not be imposed.

2016Bar Rule XI, § 11 (c)(3), “are not clearly defined,” In re Chaganti, 144 A.3d at 26 , we have never indicated that a mere departure from the discipline this court would have imposed satisfies that exception to the default rule.

2024See In re Mance, 980 A.2d at 1203 (“Since a flat fee is not owned by an attorney until it has been earned through the performance of services to the client, ‘the client will not risk forfeiting fees for work to be performed in the future if the client chooses to discharge his attorney.’ With the flat fee protected, the client need not hesitate to exercise the right to discharge an attorney for fear that the attorney may keep the flat fee.” (citation omitted) (quoting In re Sather, 3 P.3d at 410 )).

2009See Rule 1.15(d); see also In re Sather, 3 P.3d at 413-14 .

2017See In re Katz, 150 A.3d 778, 780 (D.C. 2016) (citing In re Chaganti, 144 A.3d 20, 23 (D.C. 2016)). 2 Mr. Lifshitz has invoked only the § 11 (c)(3) exception which provides that: “The imposition of the same discipline by [this] [c]ourt would result in grave injustice.” Mr. Lifshitz argues that reciprocal discipline in his case would be a “grave injustice” because if he were disbarred, then he would have to wait until 2021 — thirteen years after his initial disbarment in New York — to apply for reinstatement in the District of Columbia.

2017See In re Katz, 150 A.3d 778, 780 (D.C. 2016) (citing In re Chaganti, 144 A.3d 20, 23 (D.C. 2016)). 2 Mr. Lifshitz has invoked only the § 11 (c)(3) exception which provides that: “The imposition of the same discipline by [this] [c]ourt would result in grave injustice.” Mr. Lifshitz argues that reciprocal discipline in his case would be a “grave injustice” because if he were disbarred, then he would have to wait until 2021—thirteen years after his initial disbarment in New York—to 2 This court previously has said that D.C.

2016Similarly, although we consider what discipline this Court likely would have imposed as part of our analysis under Rule XI, § 11 (c)(4), we have made clear that the sanction from the foreign jurisdiction “need not be one that [Disciplinary] Counsel would have sought had it been an original proceeding in the District; the sanction need only fall within the range of sanctions possible here in the District.” In re Jacoby, 945 A.2d 1193, 1200 (D.C. 2008).

2016Similarly,'although we consider what discipline this Court likely would have imposed as part of our analysis under Rule XI, § 11 (c)(4), we have made clear that the sanction from the foreign jurisdiction “need not be one that [Disciplinary] Counsel would have sought had it been an original proceeding in the District; the sanction need only fall within the range of sanctions possible here in the District.” In re Jacoby, 945 A.2d 1193, 1200 (D.C. 2008).

2022To determine whether the legislature intended to impose multiple punishments, we begin with the default rule articulated by the Supreme Court in Blockburger v. United States: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. 299, 304 (1932); see also D.C.

2017To determine whether convictions merge, we apply the default rule articulated in Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), which states that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.” See D.C.

2024See In re O.L., 584 A.2d 1230 , 1232 n.6 (D.C. 1990). 23 Heimeshoff v. Hartford Life & Acc. Ins.

2024In re Mance, 980 A.2d at 1206 (emphasis added).

2024If the In re Mance court envisioned a different default rule, it did not clearly say so. 1 1 As Disciplinary Counsel points out, a different Colorado rule requires that “[i]f any portion of the flat fee is to be earned by the lawyer before conclusion of the 12 Third, by using the phrase “as it is earned,” In re Mance, 980 A.2d at 1206 , the court arguably embraced Mr. Alexei’s interpretation that fees can be earned continuously.

2023See, e.g., Johnson v. United States, 385 A.2d 742, 744 (D.C. 1978) (remanding for a hearing because the “motions, files and records in [the] case do not conclusively rebut appellant’s assertions” (emphasis added) (interpreting D.C.

2023Code § 23-110 )); McCrimmon v. United States, 853 A.2d 154, 165 (D.C. 2004) (remanding for a hearing where the “record raise[d]—but [did] not answer” questions about the appellant’s claims); Bethea v. United States, 170 5 Granted some of our opinions—including Ready v. United States, 620 A.2d 233 (D.C. 1993), on which the motions court relied—have been less clear that the three exceptions are exclusive, see id. at 234 (listing the three exceptions as additional circumstances, rather than the only circumstances, under which the court can deny a hearing), or have even indicated that the default

2023The motions court concluded that Mr. Shepherd’s allegations regarding his attorney’s investigation and questioning of Mr. White, Ms. Ingram, and Mr. Dickerson would not merit any relief even if they were true; in other words, “defense counsel acted reasonably and did not prejudice [Mr. Shepherd’s] case in any way.” 7 Because “we owe no deference” to these legal conclusions, we review them de novo, see Jones v. United States, 918 A.2d 389, 402 (D.C. 2007) (internal quotation marks omitted), and conclude that some of Mr. Shepherd’s claims merit a hearing on remand.

2023Code § 23-110 )); McCrimmon v. United States, 853 A.2d 154, 165 (D.C. 2004) (remanding for a hearing where the “record raise[d]—but [did] not answer” questions about the appellant’s claims); Bethea v. United States, 170 5 Granted some of our opinions—including Ready v. United States, 620 A.2d 233 (D.C. 1993), on which the motions court relied—have been less clear that the three exceptions are exclusive, see id. at 234 (listing the three exceptions as additional circumstances, rather than the only circumstances, under which the court can deny a hearing), or have even indicated that the default

2023Code § 23-110 )); McCrimmon v. United States, 853 A.2d 154, 165 (D.C. 2004) (remanding for a hearing where the “record raise[d]—but [did] not answer” questions about the appellant’s claims); Bethea v. United States, 170 5 Granted some of our opinions—including Ready v. United States, 620 A.2d 233 (D.C. 1993), on which the motions court relied—have been less clear that the three exceptions are exclusive, see id. at 234 (listing the three exceptions as additional circumstances, rather than the only circumstances, under which the court can deny a hearing), or have even indicated that the default

2023Code § 23-110 )); McCrimmon v. United States, 853 A.2d 154, 165 (D.C. 2004) (remanding for a hearing where the “record raise[d]—but [did] not answer” questions about the appellant’s claims); Bethea v. United States, 170 5 Granted some of our opinions—including Ready v. United States, 620 A.2d 233 (D.C. 1993), on which the motions court relied—have been less clear that the three exceptions are exclusive, see id. at 234 (listing the three exceptions as additional circumstances, rather than the only circumstances, under which the court can deny a hearing), or have even indicated that the default

2023See Gaston v. United States, 535 A.2d 893, 899 (D.C. 1988) (explaining that “[o]nly three categories of claims do not merit hearings” (emphasis added)); Bellinger, 127 A.3d at 515 (reaffirming that “[w]e will affirm the trial court’s denial of a § 23-110 motion without a hearing only if the claims” fall within one of the three established exceptions (emphasis added) (internal quotation marks omitted)).

2023See Gaston v. United States, 535 A.2d 893, 899 (D.C. 1988) (explaining that “[o]nly three categories of claims do not merit hearings” (emphasis added)); Bellinger, 127 A.3d at 515 (reaffirming that “[w]e will affirm the trial court’s denial of a § 23-110 motion without a hearing only if the claims” fall within one of the three established exceptions (emphasis added) (internal quotation marks omitted)).

2023The same default rule argument was made in In re Estate of Walker v. Stefan, 160 A.3d 1165 (D.C. 2017), and we discussed it in a footnote: Mr. Stefan [the surviving joint account holder] argues that D.C.

2023Ultimately, we did not resolve in Estate of Walker whether § 19-602.12 created a default rule that would obviate consideration of the decedent’s intent when considered under § 19-602.04(b) because the decedent’s intent and the purported default rule both pointed in the direction of a right of survivorship for Mr. Stefan on the facts of that case. 160 A.3d at 1173 n.1.

2022Code § 23-112 (2012 Repl.) (codifying Blockburger as an “express declaration of legislative intent,” Thomas v. United States, 602 A.2d 647, 649 (D.C. 1992)).

2022Subchapter III creates a limited exception to the default rule that an “individual remains at liberty during the course of [judicial commitment] proceedings,” Reed, 571 A.2d at 803 n.6, and it “evinces the intention of Congress to permit emergency confinement for only short and precisely circumscribed durations,” DeLoatch, 532 A.2d at 1345; see also In re Herman, 619 A.2d 958 , 964- 66 (D.C. 1993) (expressing our concern “that provision for emergency hospitalization can create a potential for erroneous commitments and unlawful detention” and noting that emergency hospitalization under the Ervi

2022Subchapter III creates a limited exception to the default rule that an “individual remains at liberty during the course of [judicial commitment] proceedings,” Reed, 571 A.2d at 803 n.6, and it “evinces the intention of Congress to permit emergency confinement for only short and precisely circumscribed durations,” DeLoatch, 532 A.2d at 1345; see also In re Herman, 619 A.2d 958 , 964- 66 (D.C. 1993) (expressing our concern “that provision for emergency hospitalization can create a potential for erroneous commitments and unlawful detention” and noting that emergency hospitalization under the Ervi

2022Subchapter III creates a limited exception to the default rule that an “individual remains at liberty during the course of [judicial commitment] proceedings,” Reed, 571 A.2d at 803 n.6, and it “evinces the intention of Congress to permit emergency confinement for only short and precisely circumscribed durations,” DeLoatch, 532 A.2d at 1345; see also In re Herman, 619 A.2d 958 , 964- 66 (D.C. 1993) (expressing our concern “that provision for emergency hospitalization can create a potential for erroneous commitments and unlawful detention” and noting that emergency hospitalization under the Ervi

2021See generally 1618 Twenty-First Street Tenants’ Ass’n v. The Phillips Collection, 829 A.2d 201, 206 (D.C. 2003) (Council’s failure to give “bona fide” any “special meaning” in statutory provision contrasts with other provisions indicating “the Council knew how to give ‘bona fide’ a special meaning when it deemed necessary’).

2020The CMPA and “the regulations promulgated by the [PERB] empower the [PERB] to review complaints alleging the failure of a recognized labor organization to comply with the standards of conduct (…continued) pleading filed within 21 days, or in a motion with no similar time limit specified.”); Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 997 (1st Cir. 1983) (“Rule 12(h)(1) . . . does not call for the assertion of the lack of personal jurisdiction defense within the time provided in Rule 12(a).”); Bechtel v. Liberty Nat.

2020See, e.g., Hedeen Int’l, LLC v. Zing Toys, Inc., 811 F.3d 904, 906 (7th Cir. 2016) (“Under a straightforward reading of Rule 12, a challenge to personal jurisdiction may be asserted either in a responsive (continued…) 15 Because “[a]n administrative agency is a creature of statute and may not act in excess of its statutory authority,” the PERB’s broad claim of authority over the AFGE through the use of a default rule applicable to those appropriately before the agency “is ultra vires and a nullity.” 17M Assocs., LLC, 98 A.3d at 959 (quotation marks omitted); see also Placido, 92 A.3d at 326 .

2020See, e.g., Hedeen Int’l, LLC v. Zing Toys, Inc., 811 F.3d 904, 906 (7th Cir. 2016) (“Under a straightforward reading of Rule 12, a challenge to personal jurisdiction may be asserted either in a responsive (continued…) 15 Because “[a]n administrative agency is a creature of statute and may not act in excess of its statutory authority,” the PERB’s broad claim of authority over the AFGE through the use of a default rule applicable to those appropriately before the agency “is ultra vires and a nullity.” 17M Assocs., LLC, 98 A.3d at 959 (quotation marks omitted); see also Placido, 92 A.3d at 326 .

2020See, e.g., Hedeen Int’l, LLC v. Zing Toys, Inc., 811 F.3d 904, 906 (7th Cir. 2016) (“Under a straightforward reading of Rule 12, a challenge to personal jurisdiction may be asserted either in a responsive (continued…) 15 Because “[a]n administrative agency is a creature of statute and may not act in excess of its statutory authority,” the PERB’s broad claim of authority over the AFGE through the use of a default rule applicable to those appropriately before the agency “is ultra vires and a nullity.” 17M Assocs., LLC, 98 A.3d at 959 (quotation marks omitted); see also Placido, 92 A.3d at 326 .

2011See, e.g., Benn II, 978 A.2d at 1283 n. 112 (stating that, after a determination of Kotteakos error, "[w]e need not decide whether the more stringent standard for constitutional error applies"); Andrews, supra, 922 A.2d at 458 n. 14 ("Because we conclude that the error was prejudicial under Kotteakos , reversal would be required a fortiori if we were to apply the Chapman standard.").

2011See, e.g., Benn II, 978 A.2d at 1283 n. 112 (stating that, after a determination of Kotteakos error, “[w]e need not decide whether the more stringent standard for constitutional error applies”); Andrews, supra, 922 A.2d at 458 n. 14 (“Because we conclude that the error was prejudicial under Kotteakos , reversal would be required a fortiori if we were to apply the Chapman standard.”).