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: ) ) JOHN C. HARDWICK, JR., ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This is a reciprocal discipline matter based on Respondent s indefinite suspension by the Court of Appeals of Maryland (the Maryland Court ). On April 2, 2003, the District of Columbia Court of Appeals (the Court ) suspended Respondent based on the Maryland Court s order and pursuant to D.C. Bar R. XI, 11(d) and directed Respondent to show cause why identical, greater or lesser discipline should not be imposed in the District of Columbia. The Court further directed the Board on Professional Responsibility (the Board ) to recommend whether reciprocal discipline should be imposed or to determine whether the Board should proceed de novo. Respondent did not respond to the Court s order to show cause. For the reasons that follow, the Board recommends that the Court impose identical reciprocal discipline of an indefinite suspension. I. Procedural History Respondent is a member of the District of Columbia Bar. During the period of the misconduct in question, Respondent was also a member of the Maryland Bar. On July 25, 2002, the Attorney Grievance Commission of Maryland filed charges against Respondent, alleging violations of Maryland Rules of Professional Conduct ( MRPC ) 1.3 (diligence), 1.4 (communication), 8.4(c) (dishonesty, fraud, deceit or misrepresentation), and

2 8.4(d) (conduct prejudicial to the administration of justice). The charges arose from Respondent s alleged false representations to his firm and to clients that he had performed services on their behalf, when in fact he had not. 1 In or around January 31, 2003, and prior to an evidentiary hearing, the Attorney Grievance Commission of Maryland and Respondent filed a Joint Petition for Indefinite Suspension by Consent (the Joint Petition ) with the Maryland Court. In an affidavit attached to the Joint Petition, Respondent stated, inter alia, that he knew if a hearing were to be held, sufficient evidence could be produced to sustain certain allegations of misconduct. The affidavit further stated that Respondent s consent to indefinite suspension was submitted freely and voluntarily and that he was not subjected to coercion and duress. On February 5, 2003, the Maryland Court suspended Respondent indefinitely by consent. See Attorney Grievance Comm n v. Hardwick, Misc. Docket AG No. 39 (Feb. 5, 2003). On July 10, 2003, the United States Court of Appeals for the District of Columbia indefinitely suspended Respondent based on the Maryland discipline, with reinstatement conditioned upon filing proof that he has been reinstated in Maryland. See In re Hardwick, No (D.C. Cir. July 10, 2003). On August 5, 2003, Bar Counsel reported this suspension to the Court for informational purposes only. III. Reciprocal Discipline Under D.C. Bar R. XI, 11(f)(2), there is a rebuttable presumption in favor of the imposition of identical reciprocal discipline unless the respondent demonstrates, or the Court finds on the face of the record by clear and convincing evidence, that one or more of the five 1 Bar Counsel notes that the ethical complaint giving rise to the Maryland proceedings was also lodged in her office and docketed for investigation. Bar Counsel deferred her investigation pending the disposition of the Maryland matter, and then reactivated it after receiving the Maryland Court s order of indefinite suspension. 2

3 exceptions set forth in D.C. Bar R. XI, 11(c) applies. 2 See In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003) (citing In re Gardner, 650 A.2d 693, 695 (D.C. 1994); In re Zilberberg, 612 A.2d 832, (D.C. 1992)). The plain language of D.C. Bar R. XI, 11(f)(2) provides that 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) (same). Bar Counsel also has standing to object to the imposition of identical discipline, and where she believes an exception applies, may recommend a different sanction. See Zdravkovich, 831 A.2d at The Court has cautioned, however, that application of an exception to the imposition of identical reciprocal discipline where a respondent does not participate, should be rare. Id. at 969. Thus, where neither Bar Counsel nor the respondent opposes the imposition of reciprocal discipline, the role of the Board is limited: The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline a situation that we anticipate would rarely, if ever, present itself. In re Childress, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)); see also Zdravkovich, 831 A.2d at [I]n such circumstances, the imposition of identical 2 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. 3

4 discipline should be close to automatic, with minimum review by both the Board and this court. In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (per curiam). Respondent has not participated in reciprocal discipline proceedings before the Board. In accordance with our limited role in such circumstances, we have examined the record and find nothing that rises to the level of an obvious miscarriage of justice. First, there is no evidence that Respondent was denied due process by the Maryland Court or that there was an infirmity of proof. Respondent consented to the discipline in Maryland; his affidavit in support of the Joint Petition recites that he was aware of the pending allegations of misconduct and that he consented to an indefinite suspension freely and voluntarily and without coercion or duress. The misconduct alleged in the Maryland petition is also misconduct in the District of Columbia. 3 Respondent admitted some of the misconduct in his answer to the Maryland petition and acknowledged in his affidavit that evidence could be produced to sustain certain of the charges. Imposition of identical reciprocal discipline of an indefinite suspension also would not constitute a grave injustice and is consistent with the Court s disposition of similar reciprocal discipline cases. Thus, where, as here, the factual record of misconduct developed in the foreign jurisdiction is sparse, but the disciplining court has imposed indefinite suspension with no minimum period, the Court has imposed indefinite suspension with the right to apply for reinstatement after reinstatement in the original jurisdiction or after five years, whichever is earlier. See In re Harris-Smith, 772 A.2d 804, 805 (D.C. 2001) (per curiam); see also Zdravkovich, 831 A.2d at 970 (citing In re Blades, 766 A.2d 560 (D.C. 2001) (per curiam) and In re Anagnostiadis, 765 A.2d 548 (D.C. 2001) (per curiam)). 3 The violations of the Maryland Rules with which Respondent was charged have exact counterparts in the District of Columbia. 4

5 The Board thus recommends that the Court indefinitely suspend Respondent, with the right to apply for reinstatement after he is reinstated in Maryland or after five years, whichever occurs first. 4 If Respondent is summarily reinstated in Maryland, Respondent may seek vacatur of the fitness requirement pursuant to the guidelines set forth in Board Rule 8.7. See Zdravkovich, 831 A.2d at 970; Berger, 737 A.2d at n Conclusion Based on the foregoing, the Board recommends that the Court indefinitely suspend Respondent with the right to apply for reinstatement under D.C. Bar R. XI, 16(d) after he is reinstated in Maryland or after five years, whichever occurs first. If reinstatement is sought here prior to the reinstatement in Maryland, the period of suspension should run from the time Respondent files the affidavit required by D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, (D.C. 1994). If Respondent has been summarily reinstated in Maryland either 4 The Court has held that a Maryland sanction of indefinite suspension with the right to reapply for reinstatement after a period of time is the functional equivalent of a suspension for the length of time before the right to reapply is permitted, plus a requirement for fitness. In re Berger, 737 A.2d 1033, 1046 n. 10 (D.C. 1999) (emphasis added) (citing In re Powell, 646 A.2d 340, 342 (D.C. 1994)). 5 Bar Counsel suggests that in Blades and Anagnostiadis, the Board concluded that the summary reinstatement procedure of Board Rule 8.7 does not apply where there is a limited factual record of the underlying misconduct. Bar Counsel s Brief at 5 n.3. However, in neither of those cases did the Board so find. Rather, the Board suggested that a fuller fitness inquiry may be necessary... than contemplated in Berger.... where there is no factual record of the underlying misconduct. See Blades, Bar Docket No at 17 (BPR July 20, 2000) (emphasis supplied); see also Anagnostiadis, Bar Docket No at 11 (BPR May 26, 2000). In this case too, a fuller fitness inquiry may be necessary. Assuming Respondent is eligible to apply for summary reinstatement, the need for a plenary hearing on fitness can be determined at the time Respondent files a motion to vacate the fitness requirement under Board Rule 8.7 See In re Roundtree, 503 A.2d 1215 (D.C. 1985). 5

6 without objection from Maryland Bar Counsel or without a hearing, Respondent may seek vacatur of the fitness requirement pursuant to the guidelines set forth in Board Rule 8.7. BOARD ON PROFESSIONAL RESPONSIBILITY By: Elizabeth B. Frazier Dated: February 23, 2004 All members of the Board concur in this Report and Recommendation, except Mr. Bloomfield who did not participate. 6