DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS In the Matter of: : : NAVRON PONDS, : : D.C. App. No. 02-BG-659 Respondent. : Bar Docket Nos & : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : SUPPLEMENTAL REPORT AND RECOMMENDATION OF THE This matter returns to the Board on Professional Responsibility (the Board ) on remand from the District of Columbia Court of Appeals (the Court ). In its order of remand, the Court directed the Board to transmit a supplemental report and recommendation on the proposed original discipline to be imposed pursuant to D.C. Bar R. XI, 10 and D.C. Code (a) in light of Respondent s guilty plea to two misdemeanor counts of willful failure to file income tax returns in violation of 26 U.S.C. 7203, and/or to recommend whether the Court should impose reciprocal discipline pursuant to D.C. Bar R. XI, 11, in light of discipline imposed against Respondent in Maryland, Pennsylvania and New York. Order, In re Ponds, No. 02-BG-659 (D.C. June 26, 2008). The discipline imposed in the three sister states stems from Respondent s criminal contempt conviction in the United States District Court for the District of Maryland (the Maryland District Court ). On remand, the Board ordered Bar Counsel and Respondent to file briefs with the Board addressing the appropriate discipline in light of Respondent s convictions and/or whether reciprocal discipline should be imposed. Bar Counsel filed a brief with the Board recommending reciprocal discipline of disbarment based on the action of the Maryland District Court and that the criminal

2 conviction matter based on Respondent s tax violations be dismissed as moot. Respondent has not filed a brief or response to the Board s order. For the reasons that follow, the Board agrees with Bar Counsel and recommends that the Court disbar Respondent as reciprocal discipline and that it dismiss the criminal conviction matter as moot. I. BACKGROUND Respondent was admitted to the Bar of the District of Columbia Court of Appeals on March 12, Respondent was also admitted to the Maryland, New York and Pennsylvania bars and admitted to practice before the Maryland District Court and the United States District Court for the District of Columbia (the D.C. District Court ). A. Proceedings Related to Respondent s Conviction for Criminal Contempt On April 9, 2002, Respondent was convicted in the Maryland District Court of the offense of criminal contempt of court, in violation of 18 U.S.C. 401(1). On June 13, 2002, Bar Counsel notified the Court of the conviction and submitted a proposed order of interim suspension pursuant to D.C. Bar R. XI, 10(c). On or about June 28, 2002, Respondent filed a letter with the Court opposing the interim suspension, and on July 8, 2002, the Court issued an order requiring Respondent to show cause as to why he should not be suspended pursuant to D.C. Bar R. XI, 10(c). Upon learning that on August 22, 2002, the Maryland District Court disbarred Respondent on default based on his contempt conviction, the Court, by order of September 3, 2002, discharged its July 8 order to show cause, suspended Respondent on an interim basis pursuant to D.C. Bar R. XI, 11(d), and referred the Maryland District Court s disbarment order to the Board for a determination whether reciprocal discipline should be imposed. On September 18, 2002, Respondent moved the Court for a stay of the order of interim suspension on the ground that he had moved the Maryland District Court to 2

3 vacate the disbarment order. The Court denied the stay on October 8, 2002, without prejudice to reapplying if the order was vacated. On November 26, 2003, the Chief Judge of the Maryland District Court ratified the disbarment order. Before the Board, Bar Counsel recommended the imposition of the identical reciprocal discipline of disbarment. Respondent did not file a response to Bar Counsel s statement. On November 7, 2003, the Board filed a report recommending disbarment as identical reciprocal discipline. Respondent did not file an exception to the Board s report. Bar Counsel reports that as a result of his disbarment by the Maryland District Court, Respondent was reciprocally disbarred by the D.C. District Court on June 2, 2003, the Court of Appeals of Maryland on January 29, 2004, and the Supreme Court of New York on August 13, Further, on August 3, 2005, the Supreme Court of Pennsylvania disbarred Respondent as identical reciprocal discipline to his disbarment by the Court of Appeals of Maryland. Respondent also was suspended by the United States Court of Appeals for the District of Columbia Circuit (the D.C. Circuit ), which referred the matter to its Committee on Admissions and Grievances, where it remains pending on the Committee s recommendation for disbarment. B. Proceedings Related to Respondent s Criminal Tax Convictions On December 10, 2002, Respondent was indicted by a grand jury in the D.C. District Court on seven felony counts, including five counts of tax evasion in violation of 26 U.S.C. 7201, one count of felony fraud in the first degree for failure to pay District of Columbia taxes and concealing income and assets, in violation of D.C. Code (a) and (a)(1), and one count of wire fraud by a scheme to defraud the United States and the District of Columbia by concealing income and assets, in violation of 18 U.S.C United States v. Ponds, D.D.C. No. 02-cr-495. Respondent also was charged by information with five misdemeanor counts of willful failure to file 3

4 a tax return in violation of 26 U.S.C United States v. Ponds, D.D.C. No. 03-cr-283. On July 16, 2003, the jury returned a verdict of guilty on all counts in the indictment and information, and on October 30, 2003, Respondent was sentenced. On October 31, 2003, the D.C. District Court vacated the misdemeanor convictions for violation of 26 U.S.C based on the parties agreement and in light of Respondent s felony tax convictions on the same events. On December 2, 2003, Bar Counsel notified the Court of Respondent s criminal tax and fraud convictions. On May 25, 2004, the Court ordered the reciprocal discipline matter based on the Maryland District Court s order of disbarment stayed pending Respondent s appeal of his convictions, noting that they would constitute crimes of moral turpitude if affirmed. The Court directed the parties to notify it when the appeal was resolved. In a statement filed on October 4, 2007, Bar Counsel notified the Court that on July 14, 2006, the D.C. Circuit reversed the judgment of conviction in the tax and fraud case and remanded it to the D.C. District Court. See United States v. Ponds, 454 F.3d 313 (D.C. Cir. 2006). Bar Counsel further informed the Court that on remand, Respondent entered a plea of guilty to two misdemeanor counts of willful failure to file income tax returns in violation of 26 U.S.C. 7203, and on May 22, 2007, he was sentenced to concurrent 36-month terms of probation. Bar Counsel asked the Court to lift its May 25, 2004, order staying the reciprocal discipline matter and to enter an order of disbarment based on the Board s report of November 7, By order of October 25, 2007, the Court vacated the stay of May 25, 2004, and assigned the matter to the merits division. On June 26, 2008, the Court remanded the matter to the Board to transmit a supplemental report and recommendation on the proposed original discipline to be imposed pursuant to D.C. Bar R. XI, 10 and D.C. Code , in light of Respondent s guilty plea to the misdemeanor violations of 26 U.S.C and/or to recommend whether the Court 4

5 should impose reciprocal discipline pursuant to D.C. Bar R. XI, 11, in light of the orders of disbarment entered in Maryland, Pennsylvania and New York, based on his conviction for criminal contempt. 1 II. ANALYSIS The Board, having reviewed the entire record referred to it by the Court, adheres to its original recommendation that the Court should impose reciprocal discipline of disbarment, based on the order of disbarment entered by the Maryland District Court. We further recommend that the proceeding based on Respondent s conviction of two counts of willful failure to file income tax returns in violation of 26 U.S.C be dismissed as moot. Respondent did not make a submission to the Board on remand contesting the imposition of reciprocal discipline or in the proceedings that resulted in the Board s initial recommendation of disbarment. The Board s role thus is limited, as it was when the Board first considered this matter, to reviewing the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline.... In re Childress, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)). Under this standard, the imposition of identical 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). In accordance with our limited role, we have examined the record and find nothing that rises to the level of an obvious miscarriage of justice. The criminal contempt conviction on which the order of disbarment is based has not been reversed or vacated and stands as a valid conviction. As we explained in our earlier report, the record of the contempt trial clearly establishes conduct that 1 The Court had earlier denied Bar Counsel s motion of April 27, 2006, to lift the stay and to consider the matter based on the Board s November 7, 2003 report, and its August 3, 2006, motion for reconsideration. 5

6 would constitute misconduct in the District of Columbia in violation of Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation), and Rule 8.4(d) (conduct that seriously interferes with the administration of justice), and that disbarment is within the range of sanctions that would be imposed in the District of Columbia. We thus recommend that the Court impose identical reciprocal discipline of disbarment for the reasons set forth in our November 7, 2003 report, which we attach and incorporate by reference. 2 We would ordinarily refer Respondent s convictions of two counts of willful failure to file income tax returns in violation of 26 U.S.C to a Hearing Committee for a moral turpitude determination under D.C. Code (a), because they are misdemeanors. See In re McBride, 602 A.2d 626, 629 (D.C. 1992) (en banc). If the Court imposes reciprocal discipline of disbarment, however, it may dismiss the criminal conviction matter as moot. See, e.g., In re Wittenberg, 941 A.2d 444, 446 (D.C. 2008) (per curiam) (disbarring the respondent as reciprocal discipline and dismissing related criminal matter as moot); In re Rostoker, 918 A.2d 425, 426 (D.C. 2007) (same). Accordingly, we recommend that the Court impose reciprocal discipline of disbarment and dismiss the criminal conviction matter based on the misdemeanor violations of 26 U.S.C as moot. 2 The orders of the Maryland Court of Appeals, the Supreme Court of New York and the Supreme Court of Pennsylvania referred by the Court to the Board are orders of reciprocal discipline. Because reciprocal discipline is based on discipline imposed by the original disciplining court and not on an order of reciprocal discipline for the same conduct, our reciprocal discipline recommendation is based on the Maryland District Court s order of disbarment only. See In re Harris-Smith, 871 A.2d 1183, 1184 n.3. (D.C. 2005) (per curiam); In re Webb, 766 A.2d 564, 565 (D.C. 2001) (per curiam). 6

7 III. CONCLUSION The Board recommends that the Court disbar Respondent as identical reciprocal discipline to the order of disbarment imposed by the Maryland District Court. The Board further recommends that the Court dismiss the criminal matter based on Respondent s misdemeanor violations of 26 U.S.C as moot. Respondent s disbarment should be deemed to run, for purposes of reinstatement, from the date Respondent files an affidavit that fully complies with the requirements of D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, (D.C. 1994). 3 Dated: December 29, 2008 By: /CJB/ Charles J. Willoughby All members of the Board concur in this Supplemental Report and Recommendation except Ms. Coghill-Howard, who did not participate. 3 Respondent filed an Affidavit of Compliance with Section 14 of Rule XI on September 19, 2007, and Bar Counsel filed a Notice of Noncompliance on October 4, 2007, because the affidavit was untimely and lacked both particularity and supporting proof. Since that time, Respondent has failed to correct the deficiencies in the affidavit. 7

8 DISTRICT OF COLUMBIA COURT OF APPEALS In the Matter of: ) ) NAVRON PONDS, ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE Respondent has been a member of the Bar of the District of Columbia since March 12, Until recently, he was also a member of the Bar of the United States District Court for the District of Maryland ( Maryland District Court ). On April 9, 2002, Respondent was convicted in the Maryland District Court of the offense of criminal contempt of court, in violation of 18 U.S.C. 401(1). Subsequent to that conviction, the Maryland District Court issued an order to show cause to Respondent, directing him to explain why he should not be disbarred from that court based on his conviction. Respondent made no response to that order to show cause within the required time, a default for which he claims good cause. In any event, the Maryland District Court, taking note of Respondent s default in the face of the order to show cause, ordered him disbarred from that court on August 22, Respondent has moved to vacate the Maryland District Court s disbarment order, but thus far that court has taken no action on his motion. Conceivably either Respondent s criminal conviction or his disbarment from the Maryland District Court could form the basis for discipline in this jurisdiction. The Court of Appeals, after learning of Respondent s disbarment by the Maryland District Court, entered its customary interim suspension order pursuant to D.C. Bar R. XI, 11(d), and referred the Maryland District Court s disbarment order to this Board for a determination whether reciprocal discipline should be imposed. Respondent moved in the Court of Appeals for a stay of that interim suspension order on the ground that he had moved in the Maryland District Court for

9 vacatur of the disbarment order, but the Court of Appeals denied that stay, without prejudice to his reapplying should the disbarment order be vacated. As noted above, Respondent has applied to the Maryland District Court for vacatur but no action has been taken. In the meantime, Respondent has not made any submission to this Board contending that reciprocal discipline would be inappropriate if the Maryland District Court s disbarment order stands. We therefore find that it is appropriate to review this case under the restricted scope of review required by cases such as In re Childress, 811 A.2d 805, 807 (D.C. 2002), In re Cole, 809 A.2d 1226, 1228 (D.C. 2002) (per curiam), and In re Spann, 711 A.2d 1262, (D.C. 1998), and we conclude that Respondent should receive identical reciprocal discipline in this jurisdiction. It is unlikely, in any event, that a more searching review of the case would yield a different result. 1 1 Because Respondent s disbarment in the Maryland District Court was imposed by default, there are two additional issues that must be addressed. First, reciprocal discipline is appropriate even when the discipline in the original jurisdiction is imposed by default, so long as the respondent has had notice of the disciplinary proceeding in the foreign jurisdiction. See In re Ryan, Bar Docket No (BPR July 29, 2002) (respondent disbarred as identical reciprocal discipline where foreign discipline was imposed by default), aff d, 816 A.2d 810 (D.C. 2003) (per curiam). Respondent received notice of the Order to Show Cause. He acknowledged his awareness of the Order to Show Cause in his motion to stay the interim suspension filed in the Court of Appeals. Second, it does not appear that the Maryland District Court formally made the transcript of the underlying criminal contempt trial a part of the record in the disbarment proceedings. Nonetheless, it is clear that the Maryland District Court relied on the findings in the contempt trial to justify Respondent s disbarment. Immediately after reciting the fact of Respondent s conviction, the Order to Show Cause states: It is therefore ORDERED... that Respondent be and hereby is, immediately suspended from the practice of law before this Court, and it is further ORDERED that Respondent show cause...why the imposition of disbarment by this Court would not be warranted. Order to Show Cause, Statement of Bar Counsel Attach. 2 (emphasis added). The Maryland District Court therefore made clear that the order to show cause resulted directly from the outcome of the contempt trial. The final disbarment order also directly connects the contempt conviction and the imposition of discipline. In addition, in this case we look to the underlying criminal contempt trial solely to determine whether the discipline imposed in the original jurisdiction has evidentiary support and therefore should be followed in this jurisdiction (as should be presumptively the case under Childress), not whether this jurisdiction should depart upward from the discipline imposed in the original jurisdiction. This case is therefore not like In re Maxwell, 798 A.2d 525 (D.C. 2002), in which the Court of Appeals held that, when the Board recommends greater reciprocal discipline, we may not rely on findings not drawn from the original disciplinary proceeding, at least where those findings are not referenced in and did not become a basis for the discipline imposed in the original jurisdiction. Id. at 529. Here, the Board is not recommending greater reciprocal discipline, and is relying on findings that were, in effect, the basis of the discipline in the original jurisdiction. 2

10 We do not find any basis for concluding that a miscarriage of justice would result if Respondent were to be disbarred here. There is a strong presumption that identical reciprocal discipline should be imposed, unless the attorney demonstrates by clear and convincing evidence that one of the exceptions set forth in D.C. Bar R. XI, 11(c), is applicable. See In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). None of the exceptions applies here. Respondent received due process in the form of an order to show cause to which he failed to respond. Nor is there any infirmity of proof. The only arguable difficulty is that the Maryland District Court s order to show cause and disbarment order do not specifically recite the rationale for Respondent s discipline, except to note that the disbarment is based on the conviction for criminal contempt. But that conviction followed a full trial, and as we now explain, the record of that trial (at which Respondent was convicted upon proof beyond a reasonable doubt) amply provides a justification for discipline, including disbarment. The Maryland District Court found, in its capacity as trier of fact, that Respondent assisted a client in a criminal case in concealing the extent of his assets from the prosecution and the court. The court found that Respondent accepted an expensive and extraordinary Mercedes from a client in a criminal case as a retainer, that the automobile represented the proceeds of illicit drug sales of narcotics and therefore was subject to forfeiture, that Respondent assisted his client in preparing a false financial document for submission to the court by failing to include the Mercedes on a list of the client s assets, that Respondent by remaining silent effectively concealed the existence of the car from the court, and that he concealed the existence of the car not out a desire to protect his client s constitutional rights but simply out of a desire to keep the car. See Transcript of trial hearing on January 4, 2002 ( Tr. IV ) at 105, , Statement of Bar Counsel Attach. 3. This conduct on Respondent s part would clearly constitute misconduct subject to discipline in the District of Columbia. At a minimum it constitutes dishonest conduct, 3

11 in violation of Rule 8.4(c), and conduct that seriously interferes with the administration of justice, in violation of Rule 8.4(d). We find no reason to question that disbarment would be within the applicable range of disciplinary sanctions for such conduct. The Court of Appeals has stated many times that [h]onesty is basic to the practice of law, In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc), and we have similarly made clear that [d]ishonesty in lawyer s dealings with tribunals will not be tolerated, and we will endeavor to stamp out such behavior. In re Owens, Bar Docket No. 2-00, at 11 (BPR July 12, 2002), aff d, 806 A.2d 1230 (2002) (per curiam). Documents, moreover, are the lawyer s stock in trade, and special care must be taken to ensure scrupulous honesty in the submission of documents to a court. See In re Schneider, 553 A.2d 206, 209 (D.C. 1989). Cases involving the submission of fraudulent or false documents may warrant a sanction at the high end of the range, up to and including disbarment. See In re Gil, 656 A.2d 303 (D.C. 1995); In re Goffe, 641 A.2d 458 (D.C. 1994) (per curiam). Accordingly, we recommend that Respondent be disbarred. Respondent s affidavit should be deemed to run for purposes of reinstatement from the date Respondent files the affidavit required by D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, (D.C. 1994). By: /PRQW/ Paul R.Q. Wolfson Dated: November 7, 2003 All members of the Board join in this Report and Recommendation, except Mr. Baach, who did not participate. 4