presumptive rule in District of Columbia

1992Schneckloth emphasized that the issue of consent involves “analyzing all the circumstances of an individual consent,” 412 U.S. at 233 , 93 S.Ct. at 2050 ; see id. at 248-49 , 93 S.Ct. at 2059 ; and this “careful sifting of the unique facts and circumstances of each case,” id. at 233 , 93 S.Ct. at 2050 , is incompatible with isolating any “single controlling criterion” such as age and imbuing it with presumptively decisive weight in the consent analysis.

1992Schneckloth emphasized that the issue of consent involves “analyzing all the circumstances of an individual consent,” 412 U.S. at 233 , 93 S.Ct. at 2050 ; see id. at 248-49 , 93 S.Ct. at 2059 ; and this “careful sifting of the unique facts and circumstances of each case,” id. at 233 , 93 S.Ct. at 2050 , is incompatible with isolating any “single controlling criterion” such as age and imbuing it with presumptively decisive weight in the consent analysis.

2011RUIZ, Associate Judge: In this case, we determine, for the first time, that the presumptive rule of disbarment established in In re Addams, 579 A.2d 190, 191 (D.C.1990) (en banc), should not be imposed as a sanction for intentional misappropriation.

2001In Pels, we read Addams as having “placed upon the attorney the burden of proving ‘extraordinary circumstances’ that justify *338 departure from the presumptive rule of disbarment,” 653 A.2d at 389 (quoting Addams, 579 A.2d at 191 ), but the reference to Kersey-equivalent “extraordinary circumstances” (see note 1, supra) clearly indicated our understanding that the attorney must prove that the presumed sanction of disbarment is inappropriate for his particular case of intentional or reckless misappropriation.

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion," but not requiring separate "clear and convincing" finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to `prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

2000Compare also Conyers v. State, 345 Md. 525 , 693 A.2d 781, 793 (1997) (holding mutual admissibility satisfied in joinder/severance context if other crimes evidence "fits within one of the exceptions to the presumptive rule of exclusion,” but not requiring separate "clear and convincing” finding by court), with State v. Garland, 191 Ariz. 213 , 953 P.2d 1266, 1270 (Ariz.Ct.App.1998) (stating mutual admissibility satisfied, and, consequently, failure to sever harmless, if other crime evidence offered for a proper purpose and if "profferer is able to ‘prove by clear and convincing evidence that t

1994See generally Easter Seal Soc’y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass’n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc'y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass'n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc’y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass’n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc'y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass'n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc’y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass’n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc'y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass'n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc’y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass’n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).

1994See generally Easter Seal Soc'y for Disabled Children v. Berry, 627 A.2d 482, 488-89 (D.C.1993) (there is a presumptive rule that this court will not consider questions raised for the first time on appeal); Adams v. A.B. & A., Inc., 613 A.2d 858, 861 (D.C.1992) (issues not raised by the pleadings may still be adjudicated provided those issues are actually tried by the parties by express or implied consent); see also Washington Welfare Ass'n, Inc. v. Poindexter, 479 A.2d 313, 316 (D.C.1984); Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982).