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: ) ) MICHAEL C. MEISLER, ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes before the Board to consider whether Respondent, a member of the Bar of the District of Columbia Court of Appeals (the Court ), should have reciprocal discipline imposed as a result of his permanent disbarment by the Supreme Court of Florida (the Florida Court ). The Board recommends that reciprocal discipline should be imposed and that Respondent be disbarred. Background Respondent was admitted by motion to the Bar of the Court on August 29, He was admitted to the Florida Bar on March 25, Respondent was disbarred by the Florida Court on September 14, 2000, based on the uncontested report of a referee assigned by the Florida Court to enter fact-findings on a petition to show cause alleging that Respondent practiced law in Florida while under suspension. The Florida Bar v. Michael Charles Meisler, No. SC Bar Counsel reported the Florida Court s order of disbarment to the Court on October 12, On October 17, 2000, the Court suspended Respondent pursuant to D.C. App. R. XI, 11(d) and ordered the Board to recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline or whether the Board elects to proceed de novo. On November 6, 2000, Bar Counsel filed a statement with the Board recommending that the Court disbar Respondent as reciprocal discipline. Respondent has filed no response and has

2 not participated in this proceeding. For the reasons set forth below, the Board has concluded that reciprocal discipline should be imposed and that Respondent should be disbarred. The Florida Misconduct The Report of Referee in Florida, which Respondent did not contest before the Florida Court, was based on an evidentiary hearing at which Respondent was represented by counsel. The Referee found that, while an earlier Florida disciplinary proceeding was pending against Respondent, Respondent filed a motion seeking authorization to resign from the Florida Bar with leave to reapply in three years. That motion was granted by the Florida Court on April 23, Report of Referee at 2. The Referee found that, [n]otwithstanding his resignation and notwithstanding the Supreme Court s order, Respondent Meisler continued practicing law. Id. at 2. Respondent filed multiple pleadings in the Circuit Court of Broward County on behalf of himself as a pro se party defendant, which he had a right to do, but also on behalf of a corporation that was a defendant in the case. In Florida courts, a corporation must be represented by counsel. See Szteinbaum v. Kaes Inversiones Volares, C.A., 476 So.2d 247 (Fla. 1985). The Referee accordingly found clear and unrefuted evidence that Respondent Meisler s actions, in filing the two pleadings in a representative capacity on behalf of the corporation, constitute the practice of law during the time of his disciplinary resignation, in violation of the Florida Court s Order of April 23, 1998, and in contempt of that Order. Id. at 3. Disbarment was warranted, the Referee found, because of Respondent s prior disciplinary history (public reprimand for misrepresentation, admonishment for improper funds/trust accounting, public reprimand for interference with attorney-client relationship, suspension for felony conviction, and disciplinary resignation for felony conviction), and lack of remorse. Id. at 4. The Referee considered as potentially mitigating circumstances the lack of harm to anyone and the fact that Respondent was the sole owner and officer of the corporation he represented. Id. at 5. The Referee also found that Respondent suffers from manic-depressive disorder, but that his self interest, not his illness was a real factor in the misconduct. Id. at 6. A further - 2 -

3 aggravating factor cited by the Referee was evidence of another episode of practice by Respondent while under suspension, which was established through Respondent s testimony during the sanction phase of the proceeding. Id. at 9. The Referee accordingly recommended permanent disbarment. Id. at 11. The Florida Court accepted that recommendation as uncontested. 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. App. R. XI, 11(c) applies: (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, consistent 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. D.C. App. R. XI, 11(c). The rule thus creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction. In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Bar Counsel argues that reciprocal discipline should be imposed and asserts that none of the exceptions contained in D.C. App. R. XI, 11(c) applies to this case, although she concludes that disbarment, not permanent disbarment, is the appropriate discipline in the District of Columbia because the Court does not order disbarment with no possibility of reinstatement

4 We review the record to see whether, in fact, there is clear and convincing evidence that any of the exceptions under D.C. App. R. XI, 11(c) apply. See In re Bielec, 755 A.2d 1018, 1022 n.3 (D.C. 2000)(per curiam)(reiterating independent authority of the Board to review the record for applicability of exceptions to reciprocal discipline); In re Spann, 711 A.2d 1262, 1263 (D.C. 1998). However, where, as here, a respondent does not file any opposition to Bar Counsel s statement recommending the imposition of reciprocal discipline, the Court has cautioned that the role of the Board should be a limited one. Id. at 1265; see also Bielec, 755 A.2d at 1022 n.3. Spann, 711 A.2d at 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. We conclude that no obvious miscarriage of justice would result if reciprocal discipline of disbarment is imposed in this case. There is no evidence that the Florida proceeding lacked due process or that there was infirmity of proof. D.C. App. R. XI, 11(c)(1), (2). Indeed, the Florida Court granted Respondent a hearing upon reconsideration of an original order, dated February 23, 1999, disbarring Respondent based on filings on a show cause order. The misconduct in Florida constitutes misconduct here, because the practice of law while under suspension violates Rules 5.5(a) and 8.4(d) of the District of Columbia Rules of Professional Conduct. We pause to consider the sanction ordered by the Florida Court disbarment because there is no domestic authority in an original discipline case involving an attorney who continues to practice law while suspended. Bar Counsel s practice in original cases has been to bring charges alleging that practice while under suspension or disbarment amounts to criminal contempt of court. See, e.g., In re Richardson, No. 98-SP-594 (D.C. Sept. 21, 2000) (affirming - 4 -

5 judgment of criminal contempt for continued practice after interim suspension); In re Burton, 614 A.2d 46 (D.C. 1992) (affirming judgment of criminal contempt for practice after disbarment). The Board cannot say that it constitutes a grave injustice to disbar a lawyer with a serious disciplinary history who defies a court order prohibiting him from practice. The lack of domestic precedent counsels deference to the foreign jurisdiction s sanction. See In re Piatt, 724 A.2d 1210, 1211 (D.C. 1999). As Bar Counsel urges, one adjustment should be made in the sanction. The Florida Court imposed permanent disbarment; disbarment in the District of Columbia is not imposed without possibility of reinstatement. Accordingly, we recommend that the Court impose disbarment with the possibility that Respondent may seek reinstatement in the District of Columbia five years after the date he demonstrated compliance with the Court s order of interim suspension and he filed his Rule XI, 14 affidavit (five years from April 14, 1999). See In re Day, 717 A.2d 883 (D.C. 1998), cert. denied, 119 S. Ct (2000). The Board notes that it had before it when the Florida Court disbarred Respondent other disciplinary issues referred by the Court s Order dated January 7, Those matters concerned Respondent s plea of nolo contendere to the charge of aggravated stalking in the Circuit/County Court of Broward County, Florida, and the resulting orders of suspension of the Florida Court. These matters are superseded by the Florida Court s disbarment of Respondent, although they would be appropriate subjects of inquiry should Respondent seek reinstatement here. See In re Mason, D.N , Order at 4-5 (BPR Feb. 28, 1994) (where criminal conviction and reciprocal discipline of disbarment both are presented to Board, Board should consider reciprocal discipline based on disbarment before referring moral turpitude inquiry to a hearing committee). Conclusion and Recommendation Based on the foregoing, the Board recommends that the Court impose reciprocal discipline and disbar Respondent based on his disbarment in Florida. Respondent s disbarment should be deemed to run, for reinstatement purposes, from the time he filed an affidavit pursuant - 5 -

6 to D.C. App. R. XI, 14(g), which was April 14, See In re Slosberg, 650 A.2d 1329 (D.C. 1994). BOARD ON PROFESSIONAL RESPONSIBILITY By: Patricia A. Brannan Chair Dated: January All members of the Board concur in this Report and Recommendation except Ms. Ossolinski, who did not participate