DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : MARK S. GUBERMAN, : : Respondent. : D.C. App. No. 06-BG-1058 : Bar Docket No A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This reciprocal discipline case is based on the April 13, 2006 order of the Maryland Court of Appeals (the Maryland Court ) disbarring Mark S. Guberman ( Respondent ). The Board on Professional Responsibility (the Board ) recommends that the District of Columbia Court of Appeals (the Court ) impose non-identical reciprocal discipline in the form of an 18- month suspension, to be effective immediately, but deemed to commence for purposes of reinstatement on November 17, 2006, the date on which Respondent filed an affidavit in compliance with the requirements of D.C. Bar R. XI, 14(g). I. Background Respondent was admitted to the District of Columbia Bar on May 4, He is also admitted to the practice of law in Pennsylvania and was, until the disbarment upon which this action is based, also a member of the Maryland Bar.

2 Respondent reported his Maryland disbarment to Bar Counsel by letter dated August 1, On September 15, 2006, Bar Counsel filed a certified copy of the Maryland Court s order of discipline with the Court. By order of October 3, 2006, the Court, inter alia, suspended Respondent on an interim basis pursuant to D.C. Bar R. XI, 11(d), directed him to show cause why identical discipline should not be imposed, and directed the Board either to: (i) recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline, or (ii) determine whether the Board should proceed de novo. Order, In re Guberman, No. 06-BG (D.C. Oct. 3, 2006). In a statement filed with the Board on November 1, 2006, Bar Counsel recommends the identical reciprocal discipline of disbarment. Respondent filed a statement on November 17, 2006, opposing the imposition of identical reciprocal discipline, and suggesting instead that a 30-day suspension be imposed. Bar Counsel did not file a reply. II. The Maryland Proceedings Respondent was disbarred in Maryland for violations of Maryland Rules 8.4(c) and (d), prohibiting conduct that is dishonest and interferes with the administration of justice. Opinion and Order, Attorney Grievance Comm n v. Guberman, 896 A.2d 337 (Md. 2006). 1 The underlying misconduct related to a case in the Circuit Court for Fairfax County, VA, in which Respondent and his firm, Shulman, Rogers, Gandal, Pordy and Ecker, PA, represented the plaintiff. The Virginia court granted summary judgment in favor of the defendants in June 2003, and the client did not want to incur the fees and expenses associated with an appeal. Respondent s supervisor told him that the firm would reduce its fees, but Respondent, for reasons not apparent on the record before us, did not convey that offer to the client. 1 The facts recited below are drawn from this opinion and order. 2

3 Despite having taken no appeal, Respondent told his supervisor that he had in fact appealed the case, fabricating both a Notice of Appeal and Petition for Appeal to the Supreme Court of Virginia bearing copies of what purported to be file-stamps by the Clerk s Offices. Thereafter, Respondent made periodic reports to the firm to the effect that he had filed a Notice of Appeal and was awaiting the court s ruling, even faking a phone call to the Clerk s Office in the presence of his supervisor s secretary and confirming thereafter that the case remained pending. 2 The client never authorized the filing of an appeal and was not told that an appeal had been filed. 3 No misstatements concerning the purported appeal were directed to the courts or to the client. Upon direct inquiry to the Virginia courts in July 2004, Respondent s supervisor learned that no appeal had been filed. When confronted, Respondent acknowledged that he had not appealed the case. The firm terminated his employment on July 30, The Maryland disciplining court found these facts by clear and convincing evidence and likewise determined that Respondent engaged in conduct involving dishonesty and misrepresentation in violation of Maryland Rule 8.4(c) by falsely representing to representatives of the firm that he had filed the appeal. Further, the court found that Respondent engaged in conduct prejudicial to the administration of justice, in violation of Maryland Rule 8.4(d), by 2 The record does not reveal whether Respondent falsified his time entries to reflect work on the nonexistent appeal, nor is there any indication that the client was billed for any such work. 3 Respondent has submitted to us an excerpt of a letter from his former supervisor to Maryland Bar Counsel stating that, when ultimately apprised of the firm s offer and Respondent s failure to relay it, the client stated that he was not concerned about the situation because he had not wanted to pursue an appeal under any circumstances. See excerpt of letter dated Oct. 6, 2004, from Ross D. Cooper to Stanley Fletcher of the Maryland Attorney Grievance Commission, attached as Exhibit 1 to Respondent s Response to the Statement of Bar Counsel. We must disregard this exhibit because we may not consider extra-record information in a reciprocal case. In re Maxwell, 798 A.2d 525 (D.C. 2002). 3

4 creating bogus file-stamps on the purported pleadings, falsely certifying that the pleadings had been filed with the court. Respondent answered the Maryland petition for discipline, but it is not clear whether he participated further in the disciplinary proceeding. He did not, however, take exception to the hearing court s findings of fact and conclusions of law and did not appear or participate in the review by the Maryland Court. In a strongly worded opinion, that court ordered Respondent disbarred by order dated April 13, III. Reciprocal Discipline There is a presumption in favor of imposing identical reciprocal discipline that may be rebutted by the establishment, through clear and convincing evidence, of one or more of the five exceptions set forth in D.C. Bar R. XI, 11(c). 4 D.C. Bar R. XI, 11(f); see In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Bar Counsel has recommended the imposition of identical reciprocal discipline, i.e., disbarment, for what it characterizes as protracted dishonesty and fraudulent creation of documents. Statement of Bar Counsel at 7. Respondent does not oppose the imposition of reciprocal discipline but urges that the sanction should not be identical. Relying on the Board s recommendation of non-identical discipline in In re Pennington & Wiggins, Bar Docket No (BPR Apr. 25, 2006), on appeal when Respondent filed his brief with the Board, Respondent argues that his conduct warrants a substantially different sanction in the District of Columbia, pursuant to D.C. Bar R. 4 The five exceptions under D.C. Bar R. XI, 11(c), are as follows: (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. 4

5 XI, 11(c)(4). He emphasizes that he complied with his client s instruction that no appeal be taken and that his actions in no way harmed the client. We agree with Respondent that his misconduct would warrant a substantially different sanction in the District of Columbia. However, we do not believe that the 30-day suspension that he proposes adequately reflects the seriousness of his misconduct. A. Substantially Different Discipline Determining whether the particular misconduct established in the Maryland proceedings would warrant substantially different discipline in the District of Columbia requires a two-step process: First, we determine if the misconduct in question would not have resulted in the same punishment here as it did in the disciplining jurisdiction. In re Garner, 576 A.2d 1356, 1357 (D.C. 1990) (citations omitted). Same punishment is defined as a sanction within the range of sanctions that would be imposed for the same misconduct. Id. (citations omitted). Accordingly, the appropriate question for us to address is not whether Bar Counsel would have sought disbarment for respondent s misconduct if it had originally occurred here, but whether the original discipline elsewhere is within the range of sanctions possible here.... [citation omitted]. Second, if the discipline imposed in the District of Columbia would be different from that of the original disciplining court, we must then decide whether the difference is substantial. Id. In re Demos, 875 A.2d 636, 642 (D.C. 2005). Bar Counsel contends that the sanction of disbarment falls within the range of sanctions for dishonesty, quoting the statement in In re Lopes, 770 A.2d 561, 569 n.5 (D.C. 2001), that [s]anctions for dishonesty range generally from 30 days suspension to disbarment. Statement of Bar Counsel at 7. But the question is not whether some violations of Maryland Rules 8.4(c) and (d) might warrant disbarment in the District of Columbia; it is whether disbarment is within 5

6 the range of sanctions for the particular misconduct committed by Respondent. 5 That egregious violations of these rules may warrant disbarment does not mean that disbarment is within the appropriate range of sanctions for every violation. The need for particularized analysis is heightened in this case because of Maryland s policy of imposing disbarment in virtually all cases of intentional dishonest conduct. See, e.g., Attorney Grievance Comm n v. Vanderlinde, 773 A.2d 463, 488 (Md. 2001). The Maryland Court cited this policy in its decision disbarring Respondent in this case. Guberman, 896 A.2d at That approach recognizes no degrees of intentional dishonesty, nor does it mitigate the sanction in the event that no client is harmed. Unlike the Maryland approach, the D.C. Court of Appeals, except in cases of reckless or intentional misappropriation, takes a fact-specific approach in determining sanctions for dishonesty, requiring us to consider Respondent s particular misconduct, and not simply the rules that he violated. Our Court s ruling in the Pennington case, decided while the Board was considering this reciprocal matter, has established that the District of Columbia does not defer to Maryland s policy of presumptive disbarment for all forms of intentional dishonesty by imposing identical reciprocal discipline. In re Pennington & Wiggins, 921 A.2d 135, (D.C. 2007). Pennington teaches that, in all but the most egregious cases, the sanction for nonmisappropriation intentional dishonesty in the District of Columbia will differ substantially from Maryland s presumptive disbarment. Id. at In re De Maio, Bar Docket No (BPR June 14, 2005) at 7, adopted, 893 A.2d 583 (D.C. 2006) ( [P]roperly framed, the first question... is not whether the sanction imposed by the original jurisdiction would have been within the range of sanctions that might have been imposed here for any violation of the same disciplinary rule; if that were the appropriate inquiry, there would be little substance to 11(c)(4). Most disciplinary rules cover a large range of misconduct, from relatively minor to egregious, and the corresponding possible ranges of sanctions is usually likely to be very broad as well. ) 6

7 Bar Counsel s reliance in this case on In re Drager, 846 A.2d 992 (D.C. 2004) (per curiam), for the proposition that, [t]he Board and Court have also imposed disbarment in reciprocal matters where it appeared unlikely that the lawyer would be disbarred in the District of Columbia for similar misconduct (Statement of Bar Counsel at 7) is misplaced. Because the respondent in that case did not object to the imposition of identical reciprocal discipline, Drager was decided based on the limited review prescribed by In re Spann, 711 A.2d 1262, 1265 (D.C. 1998), and In re Childress, 811 A.2d 805, 807 (D.C. 2002), i.e., whether the imposition of identical reciprocal discipline would result in an obvious miscarriage of justice. Here, however, where the Respondent has objected to the imposition of identical discipline, the Board and the Court operate under the less deferential standard of review prescribed by 11(c)(4) whether these facts would give rise to substantially different discipline in an original matter in the District of Columbia. The particular misconduct by which Respondent violated Rules 8.4(c) and (d), though serious, does not warrant a sanction of disbarment. Moreover, the difference between the Maryland disbarment and the sanction that would have been imposed if this case had been brought as an original matter in the District of Columbia is substantial. B. Sanction Recently in In re Elgin, 918 A.2d 362 (D.C. 2007), our Court reiterated the factors to be considered in fashioning an appropriate sanction. Though variously formulated, they include: the seriousness of the misconduct; the prejudice, if any, to clients; whether the conduct involved dishonesty or misrepresentation; violations of other disciplinary rules; the respondent s disciplinary history; the respondent s attitude, including remorse; and mitigating and aggravating circumstances. Id. at 376 (citing cases); see also In re Hutchinson, 534 A.2d 919, 924 (D.C. 7

8 1987) (en banc). The Court has also instructed us to consider the number and vulnerability of clients prejudiced by the misconduct, 6 though the sanction is not solely a function of the consequences of the attorney s violations, In re Hager, 812 A.2d 904, (D.C. 2002), as well as the duration of the misconduct and the experience level of the attorney. In re Austin, 858 A.2d 969, 976 (D.C. 2004); In re Jones-Terrell, 712 A.2d 496 (D.C. 1998); In re Shay, 749 A.2d 142, republished at 756 A.2d 465 (D.C. 2000) (per curiam). And, the particular sanction must be fashioned bearing in mind that the purpose of a sanction is to protect the legal profession, the courts and the public by ensuring the continued or restored fitness of an attorney to practice law. In re Bingham, 881 A.2d 619, 623 (D.C. 2005); In re Bettis, 855 A.2d 282, 287 (D.C. 2004). Another important consideration is the rule of consistency embodied in D.C. Bar R. XI, 9(g)(1), which prevents the Board from recommending a sanction that would foster a tendency toward inconsistent dispositions for comparable cases. We take up each of these considerations below and recommend that the Court impose an 18-month suspension. 1. Seriousness of the Misconduct Honesty is fundamental to an attorney s ethical obligations. In re Chisholm, 679 A.2d 495, 505 (D.C. 1996). Dishonesty cuts away at the heart of the legal profession, In re Lopes, 770 A.2d at 568, and cannot remotely be considered acceptable ethical behavior. In re Goffe, 641 A.2d 458, 466 (D.C. 1994) (per curiam). While dishonesty always constitutes serious misconduct indeed, it is a distinct factor in the sanctions analysis the egregiousness of the violation and the severity of the sanction depend, as we have noted, on the particular circumstances of the misconduct. The wide spectrum of sanctions that have been imposed for violations of Rule 8.4(c) is a function of the 6 In re Ryan, 670 A.2d 375, 381 (D.C. 1996); In re Austin, 858 A.2d 969, 976 (D.C. 2004); In re Jones-Terrell, 712 A.2d 496 (D.C. 1998). 8

9 character of the dishonest act and the setting in which it occurred. Here, especially, the choice of sanction is not an exact science. Goffe, 641 A.2d at 463. Dishonesty that is related to the representation of a client is properly considered more serious than dishonesty in private conduct. See, e.g., In re Scanio, 919 A.2d 1137, 1144 (D.C. 2007); In re Kennedy, 542 A.2d 1225, 1229 (D.C. 1988). Here, Respondent s dishonesty straddled the line between practice-related and non-practice-related conduct precisely because it created an illusion that the concluded representation remained ongoing. If the dishonest conduct had been directed to the client, the courts or third parties, we would have no trouble concluding that the creation of fictitious pleadings and the falsification of court file-stamps were practicerelated. But here, the dishonesty was confined to Respondent s employer, making its relationship to a client representation more tenuous. 7 At the same time, however, the lies concerned the representation of a client and are therefore not purely private. Because the firm was the intended target of Respondent s misrepresentations, we believe that the appropriate starting point for the sanctions analysis is the case law concerning intra-firm dishonesty. Intra-firm misconduct does not imperil public confidence in the integrity of the profession in the same way as dishonesty directed at clients, third parties or the courts. Scanio, 919 A.2d at 1144; Kennedy, 542 A.2d at Nevertheless, lawyers are to be held to a high standard of honesty even in connection with activities other than the representation of clients. In re Jackson, 650 A.2d 675, 677 (D.C. 1994); Hutchinson, 534 A.2d at Maryland disciplined Respondent for dishonesty based solely on his false representations to members of the firm. Attorney Grievance Comm n v. Guberman, 896 A.2d at 339 ( Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) of the Maryland Rules of Professional Responsibility by falsely representing to Mr. Cooper [Respondent s supervisor] and other representatives of the Shulman, Rogers firm that he had filed an appeal in Mr. Reighard s case. ) Maryland did not address whether Respondent s failure to tell the client of the firm s offer might rise to the level of a misleading omission. We are bound by the Maryland Court s findings and cannot recharacterize them. Pennington & Wiggins, 921 A.2d at

10 While there is no case directly on point, the case that most closely resembles this one is In re Slaughter, 929 A.2d 433 (D.C. 2007). There, the respondent was suspended for three years, with proof of fitness required for reinstatement, based on violations of Rule 8.4(c) and criminal forgery in violation of Rule 8.4(b). Specifically, in January 1995, he wrote a memorandum representing falsely to his law firm that the Attorney General of Arkansas had agreed to retain the firm on a contingency basis to prosecute substantial environmental claims in Superfund litigation. The respondent also forged a contingency fee agreement to that effect. In reliance on this supposed retention by the state, the firm also agreed to represent certain individual plaintiffs, to whom the firm then provided valuable legal services. But for the purported representation of the state, the firm would not have agreed to represent the individuals. When the state filed pleadings in the litigation in June 1996, the respondent created a phony signature page and certificate of service to preserve the appearance that he and the firm were cocounsel to the state, as well as to the individual plaintiffs. In mid-1997, even after the respondent was disqualified as counsel to the individual plaintiffs and even after they voluntarily dismissed their claims, the respondent continued to assure the firm that it was still representing the State of Arkansas. The respondent s misrepresentations were exposed on or near Labor Day 1997, after the respondent left the firm and the firm sent lien notices to the state and the individual plaintiffs. Id. at 439. The firm calculated that it had invested nearly $1.5 million in attorney time and $64,000 in expenses to the purported representation of the state and the individuals. Id. The D.C. Court of Appeals affirmed the Board s determination that the respondent intended to, and did, defraud the firm into representing the private plaintiffs by forging the contingent fee agreement with the state. Id. at 443. The Court agreed that the respondent had committed numerous acts of dishonesty; he: (1) prepared and forged a contingency fee agreement 10

11 purportedly signed by the Assistant Attorney General of Arkansas; (2) altered the firm s copy of the state s pleadings and placed it in the file to cover up the fact that he did not in fact represent the state in the pending litigation; and (3) maintained the pretense by repeatedly billing time for the firm s internal billing records to the state of Arkansas while knowing that it was not a client. Id. at 446. Characterizing the misconduct as criminal and extreme, the Court noted that it was prepared to disbar the respondent although it deferred to the Board s recommendation of a threeyear suspension because the respondent had not defrauded a client for personal gain. Id. at 447 n.9. Slaughter provides critical guidance, but it is not controlling. Here, Respondent s misconduct, though undeniably serious, did not involve criminal activity. Nothing in the record suggests that the law firm was defrauded. While we speculate that Respondent falsified his time entries to maintain the fiction that he was prosecuting the appeal, the record is silent on this point. We also find useful guidance in Scanio, Kennedy, In re Schneider, 553 A.2d 206 (D.C. 1989), and In re Miller, 553 A.2d 201 (D.C. 1989), as we undertake to craft a sanction that protects the courts, the public and the legal profession, and deters similar misconduct. In re Uchendu, 812 A.2d 933, 941 (D.C. 2002); In re Reback, 513 A.2d 226, 230 (D.C. 1986) (en banc). In Scanio, the respondent was suspended for 30 days for false statements to an insurance company in connection with a claim for a car accident, together with even more blatant lies to his law firm employer to cover up the original false statements. Scanio, 919 A.2d at The Court in Kennedy imposed a 90-day suspension where the attorney (i) failed to remit to his law firm a retainer received from a firm client; (ii) instructed another firm client to send payments for past work to his new office; (iii) misrepresented his salary on a personal loan application; and 11

12 (iv) committed the unauthorized practice of law, treating the first three of these as not practicerelated. Kennedy, 542 A.2d at The sanction was warranted because of aggravating factors, including a prior disciplinary history and lack of remorse. Id. at The respondent in Schneider submitted false expense reports to his law firm in order to obtain reimbursement for travel expenses that he had actually and properly incurred but had failed to document. Although he did not overstate the amounts due to him, the Court held that the deliberate falsification of documents was a dishonest act and suspended him for 60 days. Schneider, 553 A.2d at 209 (decided under corresponding provisions of Disciplinary Rule 1-102(a)(4)). The respondent in Miller was suspended for 30 days after she returned to the office of her former employer and surreptitiously searched locked files to find her personnel information. Miller, 553 A.2d at 202, 205. Her conduct did not prejudice the administration of justice nor did it subvert the judicial process, and it was not related to the practice of law or motivated by personal gain. Id. at 205. Moreover, the misconduct was mitigated by the respondent s alcoholism. Id. at 204. The Court therefore concluded that the one-year suspension recommended by the Board was too severe and imposed a suspension of only 30 days. The falsification of documents, including court file-stamps, increases the seriousness of Respondent s misconduct. In re Hawn, 917 A.2d 693 (D.C. 2007) (per curiam) (adopting Board s recommendation of 30-day suspension of respondent who falsely claimed academic honors on resume submitted to prospective employers, altered an electronic version of his law school transcript to increase his grade point average and then lied to a law school dean when confronted with the discrepancies). As the Board report explained, the alteration of an official record, meant to lend respondent s misrepresentations an air of authenticity, made the dishonesty substantially more grievous than misstatements on a resume. Hawn, Bar Docket No

13 (BPR Dec. 5, 2006) at 13. In Hawn, as in this case, the misconduct was not directly related to the representation of a client, but neither was it completely divorced from the respondent s professional conduct. Id. at 11. See also In re Mendoza, 885 A.2d 317 (D.C. 2005) (per curiam) (90-day suspension of respondent who furnished to a factoring company 27 bogus CJA vouchers, which respondent falsely claimed had been submitted to the court for payment); In re Zeiger, 692 A.2d 1351 (D.C. 1997) (per curiam) (60-day suspension of respondent who submitted altered client medical records to opposing party s insurer). Although the Maryland court cited cases in which the dishonest attorney acted for personal gain, nothing in the record before us indicates that Respondent acted for pecuniary gain or was otherwise self-interested. There is no evidence that he acted to increase his compensation or to cover up a mistake. Cf. Scanio, 919 A.2d at 1143 (misrepresentations intended to increase recovery on respondent s insurance claim); Pennington & Wiggins, 921 A.2d 135 (two-year suspension, with fitness, where respondent told client falsely that case had been settled for $10,000, which she paid personally, rather than inform them that her error had extinguished the claim); In re Owens, 806 A.2d 1230 (D.C. 2002) (per curiam) (30-day suspension where respondent made false statements, one under oath, to conceal her effort to eavesdrop on testimony in violation of sequestration order, in order to avoid embarrassment to herself and protect her client from the consequences of her misconduct). The record before us is silent, and we decline to speculate as to Respondent s motivation. None of this should be read to suggest that the Board views Respondent s misconduct as anything other than serious. He engaged in a protracted course of dishonesty, into which he invested substantial effort, and which involved multiple affirmative misrepresentations and the fabrication of documents, including bogus court file-stamps. Although this occurred in 13

14 connection with a single matter, the duration and scope of the dishonesty counsel in favor of a more substantial sanction. In re Mitchell, 822 A.2d 1106, 1110 (D.C. 2003) (per curiam) (duration of misconduct supports imposition of suspension of more than 30 days). 2. Prejudice to Clients Here, the client was not deceived in any way, nor were his legal rights affected because he had instructed Respondent that he did not wish to appeal the award of summary judgment. However, he was deprived of the opportunity to decide for himself whether, at reduced fees, he would have chosen to appeal the adverse ruling below. See Pennington & Wiggins, 921 A.2d at 139 & (noting that depriving client of information needed to make important choices can be prejudicial). 3. Dishonesty and Misrepresentation Respondent engaged in a protracted course of dishonesty, beginning in or about July 2003, when he lied about filing the Notice of Appeal, and continuing for an entire year, when the firm learned the truth. He made multiple misrepresentations during this period and exerted substantial effort to maintain the fiction that he was indeed litigating the appeal. The impracticality of conducting fake litigation, rather than contacting the client with the firm s offer of a reduced fee, makes the dishonesty in this case all the more extraordinary. The conduct was bizarre, and the record does not shed any light on Respondent s thought process or motivation. 4. Violations of Other Disciplinary Rules Rule 1.4 requires an attorney to keep a client reasonably informed about the status of the matter and to explain the matter sufficiently to permit the client to make an informed decision. Although Respondent was not charged with violating this rule, his conduct deprived his client of the opportunity to consider the firm s offer to handle the appeal for a reduced fee. 14

15 Notwithstanding Respondent s effort to introduce extra-record evidence of the client s subsequent indication that he would have declined, the decision belonged to the client, and he was entitled to an opportunity to consider the offer. 5. Respondent s disciplinary history Respondent has no prior disciplinary history. 6. Respondent s attitude and remorse The record in the Maryland disciplinary action does not address this directly. We note, however, that Respondent did not except to the Maryland hearing committee s findings of fact and conclusions of law. In this reciprocal proceeding, Respondent has acknowledged that his conduct warrants disciplinary action in the form of a suspension. Respondent s Response to Statement of Bar Counsel at Other Mitigating and Aggravating Factors Respondent self-reported his Maryland disbarment by letter dated August 1, While this was several months after the Maryland court issued its order, Respondent explained that he had assumed incorrectly that Maryland would notify the D.C. Office of Bar Counsel of his disbarment. The self-report stated that he had not practiced law in any jurisdiction since his disbarment in Maryland. Prompted by Bar Counsel regarding the requirements of D.C. Bar R. XI, 14(g), Respondent filed a compliant affidavit on November 17, Despite the serious nature of the violation in this case, we do not recommend that proof of fitness be required in order for Respondent to resume practice at the conclusion of his suspension. The record in this case is relatively undeveloped in substantial measure because Maryland s per se disbarment rule relieved its Bar Counsel of the need to establish the predicates for a fitness requirement. There is no evidence that Respondent acted out of self-interest or 15

16 intended to injure his client, and nothing that leads us to predict future misconduct. Consequently, we do not find in the record clear and convincing evidence that casts substantial doubt on Respondent's continuing fitness to practice law. See In re Cater, 887 Ai2d 1, 22 (D.C. 2005) (proof of misconduct that requires a substantial period of suspension does not, without more, justify imposition of a fitness requirement). IV. Conclusion The determined effort that Respondent put into his long course of dishonesty about his professional activities, coupled with his fabrication of documents, including 'official courtstamps, persuades us that the conduct in this case -warrants a substantial sa$pension, even though the misstatements were entirely confined to the law firm at which he was employed. This leads us to recommend that the Court impose a non-identical reciprocal suspension of 18 months. For purposes of reinstatement, we recommend further that the suspension be deemed to run fi-om November 17,2006, the date on which Respondent filed an affidavitiin co,mpliance with D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1994). / BOARD ON PROFESSIONAL RESPONSI*BILITY By: A1 members of the Board concur in this Report and Recommendation, except Mr. Smith, who did not participate.