DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) BRADFORD J. BARNEYS, ) ) Bar Docket No Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY Respondent is a member of the Bar of the District of Columbia Court of Appeals (the Court ), having been admitted by motion on January 10, On August 28, 2002, the Court of Appeals of Maryland (the Maryland Court ) issued an opinion and order disbarring Respondent from the practice of law. Bar Counsel reported the Maryland Court s order to the Court. 1 On November 13, 2002, the Court suspended Respondent pursuant to D.C. Bar R. XI, 11(d) and entered an order referring the matter to the Board on Professional Responsibility (the Board ) to recommend whether reciprocal discipline should be imposed. In re Barneys, No. 02-BG-1218 (D.C. Nov. 13, 2002)(order imposing interim suspension). The Board has concluded that identical reciprocal discipline is appropriate for the reasons set out below and recommends that Respondent be disbarred. 1 Disbarment... when applied to an attorney not admitted by the [Maryland Court] means the unconditional exclusion from the admission to or exercise of any privilege to practice law in [Maryland]. Maryland Rule (e).

2 The Maryland Misconduct 2 Respondent is a member of the Bars of New York, Connecticut, and the District of Columbia. In August 1996, Respondent opened an office at 7505 New Hampshire Avenue, Suite 301, Langley Park, Maryland for his law practice. His letterhead and his business cards used the name Law Offices of Bradford J. Barneys, P.C. without noting any jurisdictional limitation on the practice. From August 1996 through 1998, Respondent practiced from the office. During this time, he entered an appearance as counsel and otherwise represented clients in at least five cases in the District Court of Maryland sitting in Prince George s County and the Circuit Court for Prince George s County when he was neither admitted to the Maryland Bar nor admitted specially by the court. In one case in which Respondent appeared, State of Maryland v. Sanchez, CT980986X, Respondent contacted Gates Bail Bonds ( Gates ) to arrange for a $150,000 bond for his client. Respondent led Gates to believe that he represented Mr. Sanchez in a worker s compensation matter in which settlement funds were expected within thirty days and promised to pay Gates $15,000 from the anticipated settlement for the bond. 3 He provided Gates with a signed document titled Assignment of Settlement Proceeds that promised to observe all terms of [the assignment agreement] and... to withhold such funds from any settlement, judgment or verdict as may be necessary to adequately protect Gates Bail Bonds. Md. Disc. Op. at 6. In fact, Respondent did not 2 Information about the Maryland misconduct and the procedural history of the Maryland disciplinary proceedings is taken from the opinion of the Maryland Court in Attorney Grievance Comm n v. Barneys which is cited herein as Md. Dis. Op. 3 The hearing judge determined that although Respondent did not state affirmatively to Ms. Gates that he represented Mr. Sanchez in the worker s compensation case, Respondent lead [sic] her to believe that he did. Md. Dis. Op. at 6. 2

3 represent Mr. Sanchez in his worker s compensation case. Mr. Sanchez did, in fact, have a case, but he was represented by another attorney who was not associated with Respondent. Respondent did not inform the other attorney about the assignment. When the other attorney subsequently disbursed to Mr. Sanchez his share of the settlement funds, he did so without giving notice to Gates. When Mr. Sanchez later failed to appear for trial, the bond posted by Gates was forfeited. Gates, through Deborah Gates, filed a complaint against Respondent with the Attorney Grievance Commission of Maryland, which was investigated by its investigators. On November 19, 1998, the investigator found a lobby sign describing Respondent as an attorney at law and a law office sign in Respondent s name outside his suite in Langley Park, Maryland. In response to a letter from the Attorney Grievance Commission informing him of the Gates complaint and threatening to seek an injunction unless he closed his Maryland office, Respondent agreed to close his practice on New Hampshire Avenue in a letter dated December 12, The suite sign was removed when the investigator made a return visit on December 28, On January 22, 1999, a lobby sign had not yet been removed, but Respondent s business cards were no longer in open view. Respondent admitted to the investigator that he had engaged in the unauthorized practice of law in Mr. Sanchez s case, but he initially denied representing any other clients in Maryland. Md. Dis. Op. at 5 n.12. The hearing judge subsequently concluded that Respondent represented clients in at least fives cases in the District Court of Maryland sitting in Prince George s County and the Circuit Court for Prince George s County. Id. at 5. On May 30, 1997, Respondent filed a petition for admission to the Maryland Bar as an outof-state attorney. The Maryland Court found that [t]he premise of that application was that, although he resided in Maryland, he practiced law in the District of Columbia at that time. Md. 3

4 Dis. Op. at 4 n.11. Procedural History Maryland Bar Counsel filed a Petition for Disciplinary Action against Respondent charging him with misconduct, as defined by Maryland Rule (k), in connection with his alleged unauthorized practice of law in Maryland, and alleging a violation of the Business Occupations and Professions Article of Maryland Code and and the following Maryland Rules of Professional Conduct ( MRPC ): 5.5(a) (unauthorized practice of law), 7.5(a), (b), and (d) (firm names and letterheads), 4.1 (truthfulness in statements to others), 8.1(a) (bar admission and disciplinary matters), and 8.4(b), (c) and (d) (misconduct). 4 A one-day hearing was held before the Honorable Michael P. Whalen of the Circuit Court for Prince George s County on July 13, The hearing judge made findings of fact and concluded that Respondent had committed each of the charged violations, including that Respondent engaged in the practice of law in Maryland during 1997 and 1998 without being admitted to the Maryland Bar and that while his Maryland Bar application was pending, Respondent entered his appearance as counsel and otherwise represented clients in at least five cases in the District Court of Maryland. The hearing judge recommended that a sanction of disbarment be imposed. Respondent took one exception to the fact finding with respect to the representations in his Maryland Bar application and proposed a sanction of a two-year suspension. On August 28, 2003, the Maryland Court issued an opinion upholding the findings of the hearing judge and disbarring 4 The Maryland opinion does not indicate the exact dates when this action was commenced except that it notes that the public charges were filed and pending before the Maryland Court prior to July 1, 2001 and as such, were considered under the attorney grievance procedural rules in effect prior to June 30, 2001 when new rules became effective. 4

5 Respondent from practicing law in Maryland. On November 4, 2002, Bar Counsel sent a certified copy of the Maryland Court order to the Court pursuant to D.C. Bar R. XI, 11(b). On November 5, 2002, the Board sent a notice to Respondent at his address last listed with the District of Columbia Bar, informing him of this proceeding and notifying him that the Board may recommend a sanction different than that imposed in Maryland, that is either a greater or lesser sanction. See In re Drury, 638 A.2d 60 (D.C. 1994). On November 13, 2002, the Court suspended Respondent pursuant to D.C. Bar R. XI, 11(d) and entered an order referring the matter to the Board to recommend whether reciprocal discipline should be imposed. Barneys, No. 02-BG On December 13, 2002, Bar Counsel filed a statement arguing that none of the exceptions set out in D.C. Bar R. XI, 11(c) applies and urging the Board to recommend reciprocal discipline of disbarment, citing In re Harper, 785 A.2d 311 (D.C. 2001). A copy of the statement of Bar Counsel was served by mail on Respondent at his primary address listed with the D.C. Bar. Respondent did not respond to the statement of Bar Counsel nor did he otherwise participate in these proceedings. On April 2, 2003, the United States District Court for the District of Columbia temporarily suspended Respondent, a member of its Bar, based on his November 13, 2002 suspension by this Court and issued a show cause order affording Respondent thirty days to show why the imposition of identical discipline would be unwarranted. On April 15, 2003, Bar Counsel advised the Court of Respondent s temporary suspension by the United States District Court for the District of 5

6 Columbia. Analysis Reciprocal discipline will be imposed in the District of Columbia unless the attorney demonstrates, or the Court finds on the face of the record on which discipline is predicated, by clear and convincing evidence that one of the five exceptions set out in D.C. Bar R. XI, 11(c) applies. 5 D.C. Bar R. XI, 11(c) creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction... unless the record affirmatively shows that a different sanction is warranted. In re Sheridan, 798 A.2d 516, 521 (D.C. 2002)(quoting In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)). If a respondent does not make a showing that an exception applies, the Board may independently consider whether any exceptions are applicable. See In re Maxwell, 798 A.2d 525, 529 (D.C. 2002)(reiterating the independent authority of the Board to review the record for applicability of exception to reciprocal discipline); In re Bielec, 755 A.2d 1018, 1022 n.3 (D.C. 2000)(per curiam); In re Spann, 711 A.2d 1262, 1263 (D.C. 1998)(citing In re Gardner, 650 A.2d 693, 696 (D.C. 1994)). Where neither Bar Counsel nor the attorney opposes the imposition of identical discipline, the Court has cautioned we think the role of the Board should be a limited one. Spann, 711 A.2d at 1265; see also Bielec, 755 A.2d at 1022 n.3. The most the Board should 5 The five exceptions are: 1) the procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (2) there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject; or (3) the imposition of the same discipline by the Court would result in grave injustice; or (4) the misconduct established warrants substantially different discipline in the District of Columbia; or (5) the misconduct elsewhere does not constitute misconduct in the District of Columbia. 6

7 consider itself obliged to do in cases whether neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that 7

8 no obvious miscarriage of justice would result in the imposition of identical discipline - a situation that we anticipate would rarely, if ever, present itself. Spann, 711 A.2d at Like Bar Counsel, the Board is satisfied that Respondent was accorded due process by the disciplinary process in Maryland and that there is no infirmity of proof. Respondent participated in the hearing in Maryland and took exception to only one finding of fact by the hearing judge as well as to the proposed sanction. His exception and his suggestion of an alternative sanction in the form of a two-year suspension were considered by the Maryland Court and rejected. The Board is also satisfied that the misconduct found by the Maryland Court violates the D.C. Rules of Professional Conduct (the Rules ) where the Rule provisions are similar. 6 Specifically, the Board notes that this Court has recently found that an attorney who violated MRPC 7.5 and 8.4(b) and (d) for engaging in the unauthorized practice of law in Maryland should be reciprocally disciplined in this jurisdiction. See Harper, 785 A.2d at 313, Discipline has also been imposed on respondents who have violated the predecessor to Rule 8.1(a) for misrepresenting material facts in an application for admission to the Maryland Bar. See In re Rosen, 570 A.2d 728 (D.C. 1989)(attorney suspended for nine months with fitness for misrepresenting material facts in an application for admission to the Maryland Bar); In re Gilbert, 538 A.2d 742 (D.C. 1988)(attorney disbarred for material non-disclosure on a bar application). Bar Counsel also argues that there is support for the MRPC 8.4(b) violation because engaging in the unauthorized practice of law in Maryland is a criminal misdemeanor under the Business Occupations and Professions Article of Maryland Code and , the Code 6 To the extent that there are variations in the language of the rules in the two jurisdictions, the variations do not affect the outcome of this case. 7 The respondent in Harper was not charged with a violation of Rule 5.5 (a)(unauthorized practice of law). 8

9 provision under which Respondent was charged. We agree that there is a basis for finding that Respondent violated District of Columbia disciplinary rules. The Board has considered whether the imposition of the identical sanction of disbarment would be substantially different from the discipline that would have been imposed had Respondent s misconduct been considered as an original matter or whether it would result in a grave injustice. As noted by Bar Counsel, the Board and the Court have previously examined this issue. In Harper, the Board looked at its report from a previous unauthorized practice of law case, In re Spiegelman, 694 A.2d 59 (D.C. 1997), where the Court had adopted the Board s report that expressed the concern that to impose disbarment here [reciprocally] because the Maryland Court had the added motive of protecting itself from unauthorized practice would work a grave injustice. Id. at 62. In Harper, the Court recognized the misgivings which the Board itself expressed as to whether disbarment in this jurisdiction where respondent is licensed is justified for his violation of another state s ban on unauthorized practice. Harper, 785 A.2d at Although the Board concluded that in Harper, disbarment was appropriate for the respondent who did not challenge Bar Counsel s recommendation of disbarment in the proceedings before the Board, the Board did not want to foreclose the opportunity of a future respondent who is disciplined for engaging in the unauthorized practice of law in another jurisdiction to argue that the imposition of reciprocal disbarment in the District might work a grave injustice under a certain set of circumstances. See In re Harper, Bar Docket No at 12 (BPR Dec.12, 2000). After considering these issues in Harper, the Court concluded that the Board did not find the Spann test of an obvious miscarriage of justice met here, nor do we when respondent s unauthorized practice, in addition to the other misconduct found, was not isolated or accidental. 9

10 Harper, 785 A.2d at 317. Additionally, the Court concluded that the District s interest in discipline is heightened because he used his license to practice in the District to deceive potential clients about his authority to practice elsewhere. Id. Like the respondent in Harper, Respondent has chosen not to participate in these proceedings before the Board and did not distinguish this case from Harper or raise an argument that reciprocal discipline should not be imposed. 8 Absent an affirmative showing by Respondent that his situation can, and should, be distinguished from the situation of the attorney in Harper, we cannot conclude that the imposition of identical reciprocal discipline of disbarment would result in an obvious miscarriage of justice under Spann. Conclusion and Recommendation For the reasons discussed above, the Board recommends that reciprocal discipline be imposed and that Respondent be disbarred. Respondent s disbarment should run for purposes of reinstatement from the filing of the required affidavit under D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, 1331 (D.C. 1994). BOARD ON PROFESSIONAL RESPONSIBILITY By: Joanne Doddy Fort 8 Two judges dissented from the Maryland Court s majority opinion. In his dissenting opinion, Chief Judge Bell said Respondent s misconduct does not come anywhere close to that engaged in by Harper and Kemp. Dissent to Md. Dis. Op. at 10. Handling five cases over the course of two years does not come close to the conduct condemned in Harper and Kemp, opening a law office in Baltimore City for the express purpose of allowing a non Maryland lawyer to engage in the unauthorized practice of law, to wring whatever value he could out of the inventory of pending cases of a disbarred lawyer who had practiced in Baltimore City. Dissent to Md. Dis. Op. at 11 (citing Attorney Grievance Comm n v. Harper, 737 A.2d 557, 566 (Md. 1999)). 10

11 Dated: July 30, 2003 All members of the Board concur in this Report and Recommendation. 11