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DISTRICT OF COLUMBIA COURT OF APPEALS
22-BG-0827
IN RE VALERIANO DIVIACCHI, RESPONDENT.
A Resigned Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 449208)
(Submitted November 21, 2023 Decided February 1, 2024)
Valeriano Diviacchi, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom William R. Ross,
Assistant Disciplinary Counsel, was on the brief, for the Office of Disciplinary
Counsel.
Ayesha N. Khan, for the District of Columbia Bar Board of Governors.
Before EASTERLY, HOWARD, and SHANKER, Associate Judges.
EASTERLY, Associate Judge: 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
2
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.
I. Facts and Procedural History
In 2013 the Massachusetts Office of Bar Counsel commenced disciplinary
proceedings against Mr. Diviacchi, who was barred in that jurisdiction. In 2014, the
Massachusetts Board of Bar Overseers 1 (“BBO”) voted unanimously to recommend
1
The BBO is “an independent administrative body” created by the
Massachusetts Supreme Judicial Court to “investigate and evaluate complaints
against attorneys.” Massachusetts Bar of Board Overseers,
https://www.massbbo.org/s/who-we-are-bbo-ogc; https://perma.cc/4ENA-RRVC.
3
that Mr. Diviacchi receive a twenty-seven month suspension from the practice of
law. 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. 2
Upon learning of Mr. Diviacchi’s suspension in Massachusetts, the Office of
Disciplinary Counsel in the District of Columbia (“ODC”) wrote to inform him that
it was aware he had been disciplined elsewhere but it could not pursue reciprocal
discipline because he had resigned from the D.C. Bar. ODC further informed
Mr. Diviacchi that it could reopen its investigation if he were to seek reinstatement
in the future and, if he were reinstated, the presumption in favor of identical
discipline would apply.
2
Although the twenty-seven-month suspension period has elapsed, the parties
agree that Mr. Diviacchi has not been returned to active status in Massachusetts or
Maine. Mr. Diviacchi asserts the Massachusetts Bar will not reinstate him until he
“admit[s] . . . guilt in the basis of his suspension,” which he “continues to refuse to
do,” and, consequently, the Maine Bar cannot reinstate him.
4
In August 2019, Mr. Diviacchi submitted a petition for reinstatement to ODC
invoking both (1) D.C. Bar Bylaws Art. III, § 4, which at that time set forth the
process for reinstatement of an inactive (retired) or resigned member and required
the individual to certify that they “ha[ve] not been suspended for cause . . . by any
disciplinary authority and that there are no complaints or charges against the
member . . . before any disciplinary authority,” 3 and (2) Chapter 9 of the Rules of
the Board on Professional Responsibility, which governs “[p]etitions for
reinstatement by a disbarred attorney or an attorney suspended for misconduct.” Bd.
Pro. Resp. R. 9.1. He also enclosed a motion for any reciprocal discipline (seemingly
anticipated upon his reinstatement) to be issued nunc pro tunc.
Responding to this petition, ODC informed Mr. Diviacchi that Board Rules
Chapter 9 did not apply to his request because, once he resigned, ODC lacked
jurisdiction to “investigate or prosecute” him and therefore had never suspended
him. ODC informed Mr. Diviacchi that he would have to pursue reinstatement with
3
In 2022, the D.C. Bar revised its Bylaws and promulgated a companion
document, the D.C. Bar Membership Manual.
https://www.dcbar.org/getmedia/531406c3-d1c6-4248-9620-53ba4f92d7dc/D-C-
Bar-Membership-Manual-2023; https://perma.cc/Q5KS-TCV2. Section E.7 of the
Manual provides that any D.C. Bar “member who resigned their membership
voluntarily may . . . seek reinstatement . . . upon (a) completion of the required
reinstatement form provided on the Bar’s website.” That form, in turn, requires the
attorney to certify, “I am not suspended, temporarily suspended, or disbarred by any
disciplinary authority.”
5
the D.C. Bar pursuant to the process for retired attorneys set forth in D.C. Bar Bylaws
Art. III, § 4. ODC noted that “the bylaws require disclosure of the Massachusetts
suspension and any other discipline that you may have received from other
jurisdictions” and that it “appear[ed] that [he had] not been re-instated in
Massachusetts.” Lastly, ODC advised Mr. Diviacchi that, once he was readmitted
to the D.C. Bar, it would reactivate its investigation of him and pursue reciprocal
discipline.
Mr. Diviacchi contacted the D.C. Bar in September 2019 and requested
reinstatement, which the BOG denied based on his inability to certify that he had not
been suspended elsewhere as required by D.C. Bar Bylaws Art. III, § 4.
Mr. Diviacchi renewed his request for reinstatement in 2022 and specifically
challenged the application of D.C. Bar Bylaws Art. III, § 4 to bar him from
reinstatement, arguing that “it is illegal to let Massachusetts and Administrative
Bylaws decide who is admitted to the District of Columbia [Bar].” The BOG again
reviewed Mr. Diviacchi’s request and again denied it in a letter dated June 16, 2022.
The BOG concluded that Mr. Diviacchi was “unable to meet” the D.C. Bar Bylaws
Art. III, § 4 certification requirement due to his “current disciplinary suspension in
Massachusetts and reciprocal discipline in Maine.”
Mr. Diviacchi filed a petition for a writ of mandamus on September 20, 2022,
asking this court to order the Bar to hold a hearing on his application for
6
reinstatement or direct the Committee on Admissions to allow him to apply for
admission as a new admittee. On October 28, 2022, this court ordered that the
petition for a writ of mandamus should be filed as a petition for review of the BOG’s
decision denying Mr. Diviacchi’s request for reinstatement, after which the BOG
and ODC filed briefs in opposition, Mr. Diviacchi filed a reply brief, and the case
was scheduled for oral argument (although the case was later taken off the argument
calendar at Mr. Diviacchi’s request). This court subsequently requested
supplemental briefing to confirm, inter alia, that this case should be analyzed under
D.C. Bar Bylaws Art. III, § 4.
II. Analysis
A. Whether Mr. Diviacchi’s petition should be dismissed as untimely
The BOG and ODC challenge the timeliness of Mr. Diviacchi’s petition for
review under D.C. App. R. 15(a)(2), which provides that a petition for review of an
agency order or decision must be filed “within 30 days after notice is given . . . of
the order or decision sought to be reviewed.” Rule 15 is not applicable here, because
the BOG is not a D.C. agency. See Sitcov v. D.C. Bar, 885 A.2d 289, 294 (D.C.
2005) (agreeing with petitioner that in requesting review of the BOG’s denial of his
reinstatement nunc pro tunc, he was not “seeking review of an action by a District
of Columbia ‘agency’”). Rather, this court has original jurisdiction to review
7
Mr. Diviacchi’s claims, pursuant to its “inherent power . . . over members of the
legal profession.” Id. at 295. Thus,
[a]lthough there is no statute or rule expressly providing
for direct review by this court of a decision of the
BOG, . . . this court necessarily has the authority to review
a decision by an entity which this court created, when that
decision pertains to an issue with respect to which the
court is vested with the final authority.
Id. 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.
B. Whether Mr. Diviacchi is entitled to relief
Mr. Diviacchi first challenges the BOG’s decision to deny him reinstatement
by arguing that because Congress vested in this court the power to determine “the
admission and readmission of attorneys to the practice of law in the District,” “it is
illegal to let Massachusetts and administrative bylaws decide whom is admitted to
the District of Columbia Bar.” We cannot agree.
As Mr. Diviacchi notes, D.C. Code § 11-2501(a) directs this court to “make
such rules as it deems proper respecting the examination, qualification, and
admission of persons to membership in its bar, and their censure, suspension, and
8
expulsion.” This court promulgated those rules in 1971, see Sitcov, 885 A.2d at 295
& 295 n.8, and those rules not only established the D.C. Bar “as an official arm of
the Court,” D.C. Bar R. Preamble, but also vested in the BOG the power to
promulgate its own bylaws, D.C. Bar. R. IX. Thus, D.C. Bar Bylaws Art. III, § 4 is
a proper delegation of this court’s authority to regulate “admission to or continued
membership in the Bar.” Sitcov, 885 A.2d at 297. And as our present review of the
BOG’s decision against Mr. Diviacchi makes clear, these bylaws hardly divest us of
our “final authority” on such matters.
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. Further, we see no requirement that Mr. Diviacchi “admit to
guilt,” to end his suspension in Massachusetts, see supra n.2; rather he must carry
his “burden [to] demonstrat[e] that he . . . has the moral qualifications . . . for
admission to practice law in [the] Commonwealth, and that his . . . resumption of the
practice of law will not be detrimental to the integrity and standing of the bar, the
administration of justice, or to the public interest.” S.J.C. Rule 4:01, § 18(5).
Deference to the BBO’s decision not to restore Mr. Diviacchi’s license to practice
9
law under the circumstances—which should not be confused with delegation—is
entirely appropriate. See In re Velasquez, 507 A.2d 145, 147 (D.C. 1986) (per
curiam) (“[T]here is merit in the idea of granting due deference—for its sake alone—
to the opinions and actions of a sister jurisdiction with respect to attorneys over
whom we share supervisory authority.”).
Mr. Diviacchi also challenges the BOG’s decision on constitutional grounds,
contending that denying him reinstatement without a hearing, as the BOG did, is a
violation of his due process and equal protection rights. We reject both arguments.
Mr. Diviacchi is correct that this court has previously held that “[a]n attorney
has a right to procedural due process in a disciplinary procedure,” which is “afforded
when the disciplinary proceeding provides adequate notice and a meaningful
opportunity to be heard.” In re Francis, 137 A.3d 187, 190 (D.C. 2016) (internal
quotation marks omitted). But as a retired attorney, Mr. Diviacchi is not subject to
the disciplinary authority of the D.C. Bar or this court and his petition for
reinstatement is not related to a disciplinary procedure. Accordingly, he is not
entitled to a hearing under In re Francis with respect to his petitions for
reinstatement. Cf. In re Choi, 284 A.3d 80, 80-81 (D.C. 2022) (holding that an
attorney who voluntarily resigned from practice in the State of Washington while
under disciplinary investigation waived the right to challenge the underlying
allegations, both in Washington and in D.C.); In re Day, 717 A.2d 883, 887 (D.C.
10
1998) (holding the same for an attorney who resigned from the Florida Bar amidst
disciplinary investigation).
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.
Comparing himself to the respondent attorney in In re Clinesmith, 258 A.3d
161 (D.C. 2021), who was reinstated to the D.C. Bar notwithstanding that he was
still suspended in Michigan, Mr. Diviacchi also argues that his right to equal
protection has been violated because “the DC Bar’s unequal treatment of” him is
unsupported by any “rational reason.” But Mr. Diviacchi fails to appreciate that the
respondent attorney in Clinesmith was differently situated: he did not voluntarily
resign from the D.C. Bar upon the commencement of a disciplinary investigation in
another jurisdiction like Mr. Diviacchi; instead, he “self-reported his conviction to
11
the [Office of] Disciplinary Counsel” and then negotiated reciprocal discipline under
D.C. Bar R. XI, § 12.1. 258 A.3d at 161.
Though Mr. Diviacchi “requests the same of the DC Bar as [he] would have
received if he had not resigned in 2015,” there is a rational reason to treat differently
an attorney who seeks reinstatement after voluntarily resigning and an attorney who
seeks reinstatement after being subject to suspension or disbarment. We do not want
attorneys in the former group to
moot a disciplinary inquiry by resignation from the Bar,
for such a tactic would preserve [their] opportunity to
reapply for admission, or apply for admission in another
state, on the basis of an unscrutinized professional
record—a result contrary to the duty of the Bar and of the
Court to deter future misconduct and protect the public.
In re Phillips, 452 A.2d 345, 347 (D.C. 1982). Thus, the BOG’s denial, without a
hearing, of Mr. Diviacchi’s petition for reinstatement on the basis of his failure to
certify that he has not been suspended by any disciplinary authority does not
constitute an equal protection violation. See In re Dulansey, 606 A.2d 189, 190
(D.C. 1992) (where attorney does not allege that discipline “involves a suspect
class[,] . . . we apply to his claim the traditional rational basis standard of review,
under which the challenged classification is presumed to be valid and will be
12
sustained if [it] . . . is rationally related to a legitimate state interest”) (internal
quotation marks omitted). 4
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
4
Even if the timing of Mr. Diviacchi’s resignation from the D.C. Bar with
respect to his pending discipline matter in Massachusetts at the time was pure
happenstance—Mr. Diviacchi has claimed he was simply “disillusioned with the
practice of law” and “never intend[ed] to practice law again”—the Bar’s policy of
requiring what is essentially a “good standing” certification from former Bar
members seeking reinstatement without providing a hearing would not violate equal
protection guarantees for two reasons. First, as explained above, the Bar does not
have jurisdiction over attorneys who have resigned, and second, because the District
has a valid interest in choosing not to allocate resources on a procedure that attorneys
have relinquished through voluntary resignation.
13
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. 5 And in that letter, the CEO of the Bar informed Mr. Diviacchi
only that the BOG had “reviewed the details of” and “evaluated [his] request,” but
had determined that he was unable to meet the disciplinary disclosure criterion due
to his “current disciplinary suspension in Massachusetts and reciprocal discipline in
Maine.” The BOG cannot characterize as an exercise of discretion its reliance on
Mr. Diviacchi’s failure to meet the certification requirement of D.C. Bar Bylaws Art.
III, § 4 to deny his reinstatement, when failure to meet any of that section’s
requirements is precisely what merits the Board’s exercise of discretion in the first
place. See, e.g., James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (“Perhaps [the]
most obvious manifestation” of abuse of discretion “is in a failure or refusal, either
express or implicit, actually to exercise discretion, deciding instead as if by general
rule.”); Ray v. Robinson, 640 F.2d 474, 478 (3d Cir. 1981) (“A failure to recognize
5
The CEO of the D.C. Bar is “appointed by and serve[s] at the pleasure of”
the BOG, but is not an officer or a member of the BOG. D.C. Bar Bylaws Art. VIII,
§ 8.01.
14
the existence of authority to exercise discretion does not amount to its exercise.”);
cf. Shelton v. United States, 26 A.3d 216, 229 (D.C. 2011) (Ruiz, J., concurring) (“It
is well established that the failure to exercise discretion because the court does not
recognize that it has to make a discretionary call, is itself an abuse of discretion.”)
(citing Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979)).
For the foregoing reasons, we remand this case to the BOG for further
consideration consistent with this opinion.
So ordered.