Reinstatement After Resignation Sought In D.C.

The District of Columbia Court of Appeals remanded a matter involving an attorney who had resigned from its Bar with disciplinary charges pending in another jurisdiction and invoked mandamus in seeking reinstatemrnt in D.C.

Valeriano Diviacchi, a former member of the D.C. Bar who resigned in 2015, filed a petition for a writ of mandamus asking this court to order the District of Columbia Bar (“Bar”) to hold a hearing on his application for reinstatement or direct the Committee on Admissions to allow him to apply for admission as a new admittee. This court construed Mr. Diviacchi’s petition for a writ as a petition for review of the Board of Governors’ (“BOG”) denial of his petition for reinstatement. We understand Mr. Diviacchi to make two sets of arguments: (1) the BOG’s reliance on disciplinary actions against him by foreign jurisdictions to conclude that he failed to meet the requirements for reinstatement under D.C. Bar Bylaws Art. III, § 4 (which was effective until June 30, 2022) constitutes an improper delegation of this court’s final authority over matters of attorney admission and Bar membership, and (2) the BOG’s decision to deny him reinstatement, without a hearing, violated his constitutional rights to due process and equal protection. We reject both arguments. But in light of the BOG’s acknowledgment in its supplemental briefing that D.C. Bar Bylaws Art. III, § 4 allows the BOG to exercise its discretion to grant reinstatement even when a resigned attorney is unable to state that they have not been suspended for cause, and in the absence of any indication in the record that the BOG either was aware of or exercised such discretion in Mr. Diviacchi’s case, we remand this case to the BOG.

Respondent was the subject of a disciplinary suspension in Massachusetts

While that disciplinary matter was pending before the Massachusetts Supreme Judicial Court (“SJC”), Mr. Diviacchi voluntarily resigned from the D.C. Bar in 2015. Subsequently, a single justice of the SJC and then the full court adopted the BBO’s recommendation and ordered that Mr. Diviacchi be suspended from the practice of law in Massachusetts for twenty-seven months. Mr. Diviacchi, who was also barred in Maine, was reciprocally suspended in that jurisdiction. Mr. Diviacchi has yet to be readmitted to either the Massachusetts or the Maine Bar.

In light of the resignation, the office of Disciplinary Counsel took the position that he would be subject to reciprocal discipline if and when reinstated in D.C.

He then sought reinstatement through the BOG procedures and invoked mandamus when rebuffed.

The court’s review of the merits

In the absence of a statute or rule governing the timeliness of our review of BOG decisions pursuant to this court’s original jurisdiction, any assessment of timeliness is subject to our discretion. Neither the BOG nor ODC has asserted they have been prejudiced by Mr. Diviacchi’s delay in seeking judicial review or provided any other substantive reason for us to bar review of Mr. Diviacchi’s case, so we will exercise our discretion to hear Mr. Diviacchi’s petition for review on the merits.

As to the merits

Mr. Diviacchi’s contention that the BOG, through the certification requirement of D.C. Bar Bylaws Art. III, § 4, lets other states “make admission and reinstatement decisions for this [court]” is likewise without merit. In fact, the Bylaws articulate our decision not to reinstate an attorney who is under a cloud of a specific type of discipline—disbarment or suspension—in another jurisdiction until that cloud has cleared…

More generally, Mr. Diviacchi was not constitutionally entitled to an evidentiary hearing before the Bar for the simple reason that he has no property interest entitled to due process protections. An attorney with an active license to practice law possesses such a property right. See Goldberg v. Kelly, 397 U.S. 254, 262 n.8 (1970). But Mr. Diviacchi voluntarily surrendered his license when he resigned from the D.C. Bar. And despite having no entitlement to a hearing, Mr. Diviacchi was provided with an opportunity to be heard in 2019 and 2022, when he submitted petitions for reinstatement to the Bar, and again when he made his case, through a written petition, to the BOG.

Remand

Although we are not persuaded by Mr. Diviacchi’s arguments, we cannot disregard the fact that D.C. Bar Bylaws Art. III, § 4 expressly allowed the BOG to exercise discretion to reinstate an attorney who is unable to certify that he “has not been suspended.” D.C. Bar Bylaws Art. III, § 4 stated that a resigned attorney “shall be reinstated” upon, inter alia, “submission of a statement that the member has not been suspended for cause,” and that “[i]n all other instances, reinstatement . . . may be made by the Board of Governors in its discretion and upon such terms and conditions as it deems appropriate.” D.C. Bar Bylaws Art. III, § 4, (emphasis added).

The BOG acknowledged the existence of this discretionary authority in its supplemental brief to this court and asserted that it “twice exercised its discretion . . . , first in 2019 and then again on June 14, 2022, both times declining to reinstate Mr. Diviacchi.” Our focus is on the BOG’s 2022 decision and we fail to see any evidence that the BOG was aware of its authority to exercise discretion, let alone that it actually exercised its discretion as Mr. Diviacchi requested. The letter denying Mr. Diviacchi’s request was not even written by the BOG; it was written by the CEO of the Bar.