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: : : SCOTT L. WISS, : : Respondent. : Bar Docket Nos & : 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 Respondent Scott L. Wiss was convicted in 2002 of a misdemeanor in New York on a plea of guilty to insurance fraud in the fifth degree and received a suspended sentence. Thereafter, following a hearing in the New York disciplinary system, Respondent was suspended from practicing law in the state of New York by the Supreme Court of New York for six months, beginning on March 1, He was reinstated in New York in September As a result of reciprocal proceedings, he was suspended in New Jersey by the Supreme Court of New Jersey for six months and in Florida by the Supreme Court of Florida for 91 days. Both of those reciprocal suspensions were made retroactive to March 1, 2004, the date when Respondent was suspended in New York. Although the record is uncontradicted that Respondent notified Bar Counsel of his guilty plea in April 2003 and of his New York suspension in February 2004, Bar Counsel first notified the District of Columbia Court of Appeals ( the Court ) of the conviction and the disciplinary suspensions in New York and New Jersey in March The Court s order of March 22, 2006, suspended Respondent on an interim basis and directed the Board to institute a formal

2 proceeding to determine the final discipline to be imposed and specifically to review the elements of the offense for the purpose of determining whether the crime involves moral turpitude within the meaning of D.C. Code (a). The Court further ordered the Board to recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline. Order, In re Wiss, No. 06-BG-214 (D.C. Mar. 22, 2007). Thereafter, the Board referred the matter to a Hearing Committee for a determination of whether on the facts of Respondent s conviction he pleaded guilty to a crime of moral turpitude, and to make a recommendation with regard to reciprocal discipline. If the Hearing Committee concluded that Respondent did not commit a crime of moral turpitude, the Board directed the Hearing Committee to determine what final discipline is appropriate in light of Respondent s conviction of a serious crime and to make a recommendation as to what discipline, if any, should be imposed based on the entire record. On October 15, 2007, the Hearing Committee, relying upon the record in the New York disciplinary proceeding (which included the entirety of the New York criminal proceeding), the written submissions of the parties and an oral argument, concluded that the commission of the misdemeanor in New York did not involve moral turpitude and that a six-month suspension, which was the agreed disposition by both Bar Counsel and Respondent, was the appropriate sanction. Having reviewed the entire record, the Board agrees with the conclusions of the Hearing Committee and recommends a six-month suspension. While the Hearing Committee made no recommendation concerning when the suspension in D.C. would be deemed to commence, Bar Counsel agreed before the Hearing Committee that the suspension should be deemed to run, nunc pro tunc, from April 3, 2006, when Respondent filed a fully compliant Section 14(g) affidavit. Although Respondent asked that the suspension run from an even earlier 2

3 date, the Board finds this an academic exercise because more than six months have passed from April 3, 2006, and Respondent has already been suspended from March 22, 2006 until the present in the District of Columbia. Accordingly, the Board recommends that the suspension run, nunc pro tunc, from April 3, 2006, and be deemed fully served when the Court enters its final order in this matter. I. BACKGROUND Respondent was admitted to the Bar of the District of Columbia Court of Appeals in April He also was admitted to the New York, New Jersey, and Florida Bars, but has practiced exclusively in New York since he graduated from law school. Since 1999, Respondent has practiced as a solo practitioner handling primarily personal injury actions, with some medical malpractice and real estate litigation. A. New York Criminal Proceedings In October 2002, Respondent pleaded guilty to a charge of insurance fraud in the fifth degree, a class A misdemeanor (N.Y. Penal Law Sec ), in full satisfaction of the threecount indictment that had been brought by the Queens District Attorney in the Supreme Court of New York. Respondent was sentenced to a one-year conditional discharge (the equivalent of a suspended sentence), conditioned upon the requirement that he pay $5,000 in restitution. Respondent promptly paid the restitution. Respondent s conviction grew out of an undercover sting operation investigating insurance misconduct at medical clinics in New York. An undercover officer, Joseph Rousseau, posed at a clinic as a potential client after allegedly receiving injuries in an automobile accident. Respondent assigned a paralegal to determine if Rousseau had a viable claim and if he wanted Respondent to handle his case. Believing there was a viable claim and that Rousseau wanted to 3

4 retain Respondent, the paralegal had Rousseau sign a retainer agreement as well as a medical release and a notice of intent to file a claim. Apparently, under New York law, medical releases and a notice of intent are required to be notarized. In New York, the notarized documents must be filed with the insurance company within 90 days of the accident to have the medical bills paid. Two and a half months after the accident, Respondent was advised by another paralegal in his office that the relevant Rousseau documents had not been notarized and that the office had been unable to reach Rousseau by telephone or mail. Respondent tried unsuccessfully to reach Rousseau. Assured by the first paralegal that Rousseau had personally signed the documents, and concerned that the 90-day deadline was about to expire, Respondent wrongfully authorized a paralegal to notarize the documents with Respondent s notary stamp, even though neither the notarizing paralegal nor Respondent had witnessed Rousseau s signature. Respondent admitted that he knew it was wrong to order the placing of a false notarization on the documents. There is no evidence in the record that Respondent ever submitted a claim to the insurance company. According to Respondent s counsel, the $5,000 reimbursement to the insurance carrier was for expenses it incurred in connection with the disciplinary proceedings and the notice of intent to file a claim. B. New York Disciplinary Proceedings On December 11, 2002, the Departmental Disciplinary Committee of the Appellate Division of the Supreme Court of New York, First Judicial Department ( New York Disciplinary Counsel ) initiated disciplinary proceedings against Respondent based on the criminal conviction. The originating disciplinary petition in New York appended the full record of the criminal case, including a transcript of the plea colloquy and the sentencing. A disciplinary 4

5 hearing was held in New York on April 10, 2003, at which Respondent testified under oath and was cross-examined by both New York Disciplinary Counsel and members of the Hearing Committee. The transcript of this hearing sets forth the complete basis for the factual conclusions of the New York disciplinary matter. That transcript and related submissions by the parties in New York, which were submitted by Bar Counsel to the D.C. Hearing Committee, also set forth the entirety of the record on which our Hearing Committee relied in resolving this matter as referred to it by the Board. Two days prior to the hearing in New York, Respondent submitted a statement admitting to his misconduct and stating that he and the New York Disciplinary Counsel were in agreement that a six-month suspension should be imposed. The hearing focused primarily on mitigating evidence that would bear on the appropriate sanction. After the hearing, the Hearing Panel, in September 2003, issued its report that Respondent had engaged in professional misconduct and recommended that Respondent be suspended for nine months. In addition to the false notarization, Respondent admitted and the New York Hearing Panel found two other instances of misconduct by Respondent related to the Rousseau matter. The Panel found that the retainer statement filed by Respondent s office with the New York Office of Court Administration ( OCA ) contained false information. The retainer statement incorrectly stated that Rousseau was referred to the firm through an advertisement. In fact, Rousseau was referred by a doctor. At the hearing in New York, Respondent testified that this inaccuracy resulted from his negligent failure to read the document carefully and that he did not knowingly submit false information. Our Hearing Committee accepted this testimony as true and no contrary information was submitted either by New York Disciplinary Counsel or by D.C. Bar Counsel. 5

6 The second instance of misconduct admitted by Respondent and found by the New York Hearing Panel related to a statement made to the insurance company by an unpaid intern in Respondent s office. In declining a settlement offer, the intern stated that Rousseau had missed a great deal of work and thus rejected the company s settlement offer. It was not true that Rousseau had missed a substantial time at work. After learning of the intern s false statement, Respondent fired the intern. Respondent testified, and our Hearing Committee found, that Respondent did not tell the intern to make the false statement but that Respondent did not adequately train or supervise the intern. On January 30, 2004, the New York Supreme Court, Appellate Division, First Judicial Department ( New York Court ), adopted the Hearing Panel s findings of facts and conclusions of law, but ordered Respondent suspended for six months, as had been agreed prior to the hearing by Respondent and New York Disciplinary Counsel, effective March 1, The New York Court based the sanction in large part on the mitigating evidence presented at the hearing, which the New York Court summarized as follows: In considering factors in mitigation the Panel noted that respondent is 37 years old and has two young children.... [T]he Panel concluded that respondent s evidence was comprehensive and credible, including his character evidence, an absence of a prior disciplinary record, full and free disclosure to the Committee and a cooperative attitude toward the proceedings; his inexperience; his timely payment to [the insurance company] of a restitution payment of $5,000 ; and his unequivocal expression of remorse. The Panel also found that respondent had made consistent and beneficial contribution to the community and that he enjoyed[ed] a good reputation in his community for truthfulness and integrity..... The Panel also found that respondent has already been the subject of public embarrassment and humiliation, which included being taken out of his home in the middle of the night in handcuffs in front of his wife and children, and pleading guilty. Furthermore, it found that, since the episode, respondent has taken remedial steps with his staff to avoid a reoccurrence of such misconduct. The New York Court rejected the Hearing Panel s proposed sanction, finding that while respondent s misconduct was serious, it appears to be aberrational and, in light of the impressive 6

7 evidence submitted in mitigation, we find that a six-month suspension is warranted, which should serve a significant deterrent and punitive purpose without destroying respondent s means of livelihood. In re Wiss, 772 N.Y. S.2d 9, 12 (NY 2004). On September 23, 2004, the New York Court reinstated Respondent to the practice of law in New York. C. Reciprocal Discipline in New Jersey and Florida On September 10, 2004, the Supreme Court of New Jersey, pursuant to its reciprocal discipline rules, suspended Respondent for six months, retroactive to March 1, 2004, the date of Respondent s suspension in New York. The New Jersey Court took this action based upon the unanimous recommendation of the state Disciplinary Review Board. On November 29, 2004, the Supreme Court of New Jersey reinstated Respondent to practice law in New Jersey. On November 4, 2004, the Supreme Court of Florida, based on an uncontested report of a referee, suspended Respondent for 91 days, effective, nunc pro tunc, to March 1, 2004, the date of Respondent s suspension in New York. On July 8, 2005, Respondent was reinstated as an inactive member of the Bar in Florida by the state Supreme Court. D. District of Columbia Disciplinary Proceedings On March 9, 2006, Bar Counsel filed with the Court certified copies of orders of the New York and New Jersey courts suspending Respondent, together with a certified copy of the Certificate of Disposition in Respondent s criminal case. Along with these documents, Bar Counsel filed a proposed order, asking the Court, among other things, to direct the Board to institute a formal proceeding to determine the nature of the final discipline to be imposed and to review the elements of the offense for the purpose of determining whether the crime involves moral turpitude within the meaning of D.C. Code (a) and to recommend promptly 7

8 thereafter to this Court whether identical, greater or lesser discipline should be imposed as reciprocal discipline, or whether the Board, instead, elects to proceed de novo pursuant to Rule XI, 11. On March 22, 2006, the Court entered exactly the proposed order proffered by Bar Counsel, suspending Respondent, effective upon that date, and directing the Board to make a determination regarding the moral turpitude of the offense for which Respondent was convicted and recommending to the Court whether identical, greater or lesser discipline should be imposed as reciprocal discipline. On April 18, 2006, Bar Counsel filed a brief with the Board, noting correctly that since the offense for which Respondent was convicted was a misdemeanor both in New York and in D.C., it could not be considered moral turpitude per se. The brief also cited In re McBride, 602 A.2d 626 (D.C. 1992) (en banc), which held that to determine whether a misdemeanor conviction involves moral turpitude, there should be a hearing before a Hearing Committee to determine if under the circumstances, particularly in a case involving fraud, the commission of the crime in fact involved moral turpitude. However, in its brief, Bar Counsel urged the Board to accept its assessment that Respondent s crime did not involve moral turpitude, based on excerpts from what it described as the decision by the court in New Jersey (which was a reciprocal court, not the original disciplining jurisdiction), that Respondent s insurance fraud conviction was not a crime of moral turpitude. Bar Counsel also recommended that on the basis of its very limited description of the facts of the underlying offense, the Board should conclude that no sanction is necessary for the criminal conviction or the serious crime because reciprocal disciplinary action is appropriate, sufficient and not opposed by Respondent or Bar Counsel. Brief of Bar Counsel, April 18, 2006, at 4. The brief urged the Board to recommend that Respondent be suspended for six 8

9 months based on the reciprocal matter and that the criminal matter be considered moot. Respondent concurred with Bar Counsel s proposal and urged that the six-month suspension be imposed, nunc pro tunc, to March 1, 2004, the date of his suspension in New York. Bar Counsel took no position on this factual issue when the matter was first brought to the Board. Nor did Bar Counsel comment on or contest Respondent s factual assertions in his brief that Respondent had notified the D.C. Bar of his conviction by letter on April 9, 2003, and of his suspension by New York by letter on February 27, On October 19, 2006, the Board in an order authored by then Chairman Martin Baach, noting the parties requests, observed that neither party had made any filings in the reciprocal matter. The order stated, On the formal record, this case looks like a criminal conviction case only. The Board order further noted that Bar Counsel s notice to the Court bore only the docket number of the criminal case, not the reciprocal case number. The Board order also pointed out that Bar Counsel had not addressed any of the matters usually briefed in a reciprocal case, such as the exceptions to the imposition of reciprocal discipline set forth in D.C. Bar R. XI, 11(c). Citing the leading Board case on combined criminal conviction-reciprocal discipline cases, In re Mason, Bar Docket No (BPR Feb. 28, 1994), the Board order concluded that the factual moral turpitude analysis of the misdemeanor criminal conviction and the reciprocal discipline matters should be consolidated, heard by a Hearing Committee, and based on the record developed there, and the recommendation of the Hearing Committee, the Board would be in a position to make a recommendation for proposed discipline to the Court. The order stated, If the moral turpitude inquiry is as straight-forward as Bar Counsel and Respondent suggest, and the hearing committee sees matters the same way, the committee s recommendation to the Board should issue promptly. The order also stated, At the same time, the hearing committee shall 9

10 also make a recommendation to the Board with regard to reciprocal discipline. On December 4, 2006, Bar Counsel advised that it had requested additional records from the New York disciplinary proceeding and from the New York criminal case and was planning to file a petition and specification of charges against Respondent. Four months later, in April 2007, Bar Counsel filed a specification of charges, claiming that Respondent s admitted conduct, which had already been the subject of a full hearing in New York, violated numerous New York and D.C. Rules, including D.C. Rules 5.3(a), (b), and (c)(2), 8.4(b), 8.4(c) and 8.4(d) (in that Respondent allegedly engaged in conduct that was prejudicial to or seriously interfered with the administration of justice.) Bar Counsel did not charge Respondent with committing a crime of moral turpitude. Notwithstanding the specification of new charges, the petition requested that Respondent receive identical reciprocal discipline of a six-month suspension, nunc pro tunc, to April 3, 2006, the date he filed his Section 14(g) affidavit in D.C. E. The Hearing Committee Report and Recommendation On July 17, 2007, a hearing was held before Hearing Committee Number Five, composed of Robert D. Okun, Esq., Chair; Ms. Fetneh Askari Fleischmann, public member; and Linda Stein, Esq. Bar Counsel relied exclusively on the records of the New York reciprocal matter, principally the transcript of the hearing before the New York disciplinary panel, which included the full (albeit limited) New York criminal record. Neither side called a single witness. Bar Counsel did not contest the accuracy or credibility of Respondent s testimony at the New York disciplinary hearing. Counsel for both parties answered the Hearing Committee s questions and then submitted written proposed findings of fact and conclusions of law. The Hearing Committee issued its unanimous Report and Recommendation on October 15, As noted, the Hearing Committee concluded that Respondent s conviction did not 10

11 involve moral turpitude. It noted that Respondent did not commit the crime for personal gain, but was trying primarily to protect his client s interests. It also reasoned that the crime did not involve long-term planning but was based on a moment of panic when Respondent realized the statute of limitations was about to run on his client s claim. Finally, it noted that there were no other instances of false notarization by Respondent. After analyzing Bar Counsel s petition and the record in the New York disciplinary proceeding, the Hearing Committee concluded that the conduct to which Respondent admitted and that was set forth in the New York hearing transcript constituted violations of D.C. Rule 5.3(a) and (b) (involving adequate supervision of non-lawyer personnel); Rule 8.4(b) (involving a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer); and Rule 8.4(c) (involving engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). The Hearing Committee concluded that Bar Counsel did not carry its burden of proving by clear and convincing evidence a violation of D.C. Rules 5.3(c) (regarding remedial action to avoid the consequences of action by non-lawyer personnel) or 8.4(d) (engaging in conduct that seriously interferes with the administration of justice). The Hearing Committee agreed with the stipulated position of both sides that a six-month suspension was appropriate. The Hearing Committee made an independent analysis of the sanction factors set forth in the Court s opinion in In re Elgin, 918 A.2d 362 (D.C. 2007), and compared the facts with sanctions imposed in other cases decided by the Court. The Hearing Committee concluded that a six-month suspension was appropriate in light of the one-time nature of Respondent s action, his lack of prior discipline, his subsequent remedial measures, his cooperation with all of the disciplinary authorities, and his many pro bono and charitable activities. 11

12 The Hearing Committee did not opine on the requested nunc pro tunc starting date of the suspension. Neither Bar Counsel nor Respondent has taken an exception to the proposed sanction nor to the Hearing Committee s conclusion that the crime did not in fact involve moral turpitude. Neither has filed a brief to the Board in opposition to any part of the Hearing Committee s Report. However, in a letter to the Board on October 24, 2007, Bar Counsel takes an exception to the conclusion of the Hearing Committee that Respondent did not violate Rules 5.3(c)(2) or 8.4(d). Bar Counsel also noted its exception to the Board s order of October 19, 2006, which required that the matter go before a Hearing Committee. Bar Counsel waived its right to file a brief on any of these issues, setting forth its position in the letter. II. ANALYSIS The Board concurs with the two principal conclusions of the Hearing Committee, and recommends that the Court find that Respondent s criminal conviction did not involve moral turpitude and that Respondent should be suspended for six months. The suspension should be deemed to run, nunc pro tunc, from April 3, 2006, when Respondent filed a fully compliant Section 14(g) affidavit. Our conclusion on the moral turpitude question is based on the same analysis as the Hearing Committee; however, our recommendation on the sanction is based on the principles of reciprocal discipline. A. The Absence of Moral Turpitude Bar Counsel filed an original specification of charges but supported it only with the record in the New York disciplinary case, which included the New York criminal record. Specifically, Bar Counsel made no effort to illuminate for the Hearing Committee the circumstances of Respondent s crime, including his knowledge and intent, which are necessary 12

13 to a determination of moral turpitude. See In re Colson, 412 A.2d 1160, 1164 (D.C. 1979) (en banc). The Hearing Committee did its best to make the mandatory moral turpitude inquiry with the limited record presented and correctly concluded that Bar Counsel did not establish, by clear and convincing evidence, that Respondent s crime involves moral turpitude on the facts. The legal standard for moral turpitude was established in Colson, where the Court held that a crime involves moral turpitude if the act offends the generally accepted moral code of mankind, if it is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between men, or if the act is contrary to justice, honesty, modesty, or good morals. Id. at As the Hearing Committee correctly noted, the burden of proof is on Bar Counsel to establish by clear and convincing evidence that an attorney s criminal conduct involves moral turpitude on the facts. See In re Sims, 844 A.2d 353, 365 (D.C. 2004). As Bar Counsel conceded, falsely notarizing a single document, under the circumstances of this case, while wrongful, does not remotely approach moral turpitude, as defined by our Court. Respondent honestly and with justification believed that the signature he authorized to be notarized was genuine. He had been told that by the paralegal. Respondent made diligent efforts to contact the signer to arrange for a proper notarization. In a moment of panic and to avoid the running of the statute of limitations against his client, Respondent improperly authorized the signed papers to be notarized. This dishonest conduct clearly violated both the criminal law and applicable disciplinary rules, but does not approach the level of vileness and depravity that are the hallmarks of moral turpitude. We recognize that there was an element of self-protection in the criminal act. Respondent was obviously concerned not only that his client be protected from the statute of 13

14 limitations but also that he be protected from a malpractice action if the client, whose case he had undertaken to handle, were to sue him for malpractice for letting the statute of limitations expire and bar his suit. However, we do not believe that is sufficient to support a finding of moral turpitude. Instead, we adopt the reasoning of the Hearing Committee, which concluded that because Respondent s crime was motivated, in large part, by a desire to protect his client s interest, because it appears to have been a one-time incident, and because it was not the result of a deliberate plan or scheme to defraud... Respondent s misdemeanor conviction for insurance fraud in the fifth degree does not constitute a crime of moral turpitude based on the facts and circumstances of the case. H.C. Rpt. at 21. B. The Court Should Impose a Six-Month Suspension as Reciprocal Discipline We commend the effort made by the Hearing Committee, once it was presented with the petition by Bar Counsel specifying violations of the D.C. Bar Rules, to analyze the New York record to determine which D.C. Bar Rules were violated by the conduct proven by that foreign jurisdiction s proceeding. We also recognize the diligent effort made by the Hearing Committee to comply with the Board s order of referral. The Board directed the Hearing Committee, if it did not find moral turpitude, to make a recommendation regarding what final discipline is appropriate based on the entire record and Respondent s conviction of a serious crime. See Board Order at 4-5. In undertaking this responsibility, the Hearing Committee made a comprehensive analysis of the case law and, taking into consideration the discipline imposed in New York, recommended a six-month suspension. With the benefit of hindsight, and given the way that Bar Counsel prosecuted this case by offering to the Hearing Committee the same reciprocal discipline record it filed with the Board, we do not believe that all of this extra effort was required. We recognize that the Board s order 14

15 of referral to the Hearing Committee may not have provided clear guidance to the Hearing Committee in assessing the proper sanction. We believe that the correct approach, given the record provided by Bar Counsel, was for the Hearing Committee, after determining that there was no moral turpitude, to determine, as directed by the Court, what reciprocal discipline was appropriate. The critical consideration is that Bar Counsel did not offer any additional evidence or records not considered by the original disciplining court in New York. In general, we believe that when moral turpitude in fact is the question and when the criminal conviction is based on an unilluminating plea, Bar Counsel should present additional evidence to a Hearing Committee so that there can be a fully developed record on the issue of moral turpitude. Bar Counsel may have thought there was no need to do that here because the record was amplified to some extent by the New York disciplinary hearing and because the admissions by Respondent did not appear to be contested by the New York prosecutor or the New York Disciplinary Counsel. In any event, once the record before our Hearing Committee was identical to the record before the original disciplining jurisdiction, there was no reason to require the Hearing Committee to consider the sanction de novo. Compare In re Perrin, 663 A.2d 517, 523 (D.C. 1995) ( [W]here the Hearing Committee had already held an evidentiary hearing on the allegations... it simply makes no sense to disregard the Committee s findings and the Board s recommendation in favor of the other jurisdiction s sanction. ). In Perrin, the Hearing Committee held an extensive hearing with independent evidence before it received the foreign jurisdiction s decision and the record upon which the decision was based. Here, the Hearing Committee had the decision and the record of New York from the beginning and that was all it ever received. Thus, unlike in Perrin, the Hearing Committee here had no need (and we believe no record basis) to render a 15

16 recommendation on an original sanction. Instead, in our view, it would have been proper for the Hearing Committee to follow Bar Counsel s original proposal and impose reciprocal discipline as appropriate and sufficient. In light of the exclusive reliance by Bar Counsel on the record developed in New York, we see no point in having the Hearing Committee engage in an independent analysis of the D.C. disciplinary rules, deciding exactly which rules and subparts were violated and then determining the sanction as an original matter under this Court s cases. It is true that the Court order directed the Board to institute a formal proceeding to determine the nature of the final discipline to be imposed, an inquiry separate from the moral turpitude analysis of the criminal conviction, and that the Board in turn directed the Hearing Committee to determine the appropriate final discipline in light of Respondent s conviction of a serious crime. We also understand that if additional evidence is presented in analyzing the conviction of a serious crime, the Hearing Committee or the Board could recommend a different sanction from the sanction of the original jurisdiction. However, when there is no basis to find moral turpitude and Bar Counsel has offered no additional evidence apart from the reciprocal record from which to assess the proper sanction for the serious crime conviction or, for that matter, the separate violations of the D.C. disciplinary rules it charged, we believe the Hearing Committee and the Board should proceed, as directed by the Court order, to consider reciprocal discipline in accordance with D.C. Bar R. XI, 11 and the Court s precedents. The Board comes to the same conclusion as to a sanction as the Hearing Committee a six-month suspension but we base our conclusion on the normal principles of reciprocal discipline. Because no new facts were adduced before the Hearing Committee, we rely on this Court s directives in handling reciprocal discipline matters and address the matter as required by the Court s March 22, 2006 Order in this case. 16

17 Under this Court s rule and cases, identical reciprocal discipline is imposed in a reciprocal case, unless the respondent demonstrates, by clear and convincing evidence, that one or more of the five exceptions set forth in D.C. Bar R. XI, 11(c) applies. D.C. Bar Rule XI, 11(f); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Further, where, as here, Respondent and Bar Counsel do not contest identical reciprocal discipline and neither has offered any evidence that any exception applies, the Board s function (as well as a Hearing Committee s function in considering a consolidated reciprocal mater) is limited to reviewing the other jurisdiction s 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)). See also In re Cole, 809 A. 2d 1226, 1227 n.3 (D.C. 2002) (per curiam) (when respondent does not object, imposition of identical discipline should be close to automatic, with minimum review by both the Board and the Court). That the imposition of the identical discipline would not result in any injustice, let alone a grave injustice, is demonstrated by the facts that New Jersey imposed an identical six-month suspension as a reciprocal sanction in that state and that our Hearing Committee, after an independent analysis of the conduct under the D.C. Rules and an assessment of the sanction our Court would impose if this were an original matter, arrived at a proposed sanction of a six-month suspension. Because we resolve this case as a reciprocal matter and because the Hearing Committee concluded that the proven violations of the D.C. disciplinary rules would result in the same sixmonth suspension that we recommend, we have no need to address Bar Counsel s exceptions to 17

18 the Hearing Committee s conclusions that Bar Counsel failed to establish violations of D.C. Rules 5.3(c) and 8.4(d). The concurring opinions make valid points and Ms. Jeffrey s concurrence provides fine guidance for the future, but unfortunately they ignore the reality of the record facing this Board and the Court. The key and indisputable fact is that Bar Counsel did not present the Hearing Committee with a single piece of evidence that was not in the record of the foreign jurisdiction, which had rendered its final decision in this matter years before the Hearing Committee received it. While it was correct for the Hearing Committee to review that record to determine if the underlying crime involved moral turpitude, it is a complete waste of time for the Hearing Committee, this Board, and the Court to review that cold record to make separate findings of fact and attempt to reach an independent view of the sanction when three foreign jurisdictions had already done so on the identical record. The Hearing Committee could make no independent credibility determinations, and neither can this Board or the Court. No legitimate interest is served by parsing this cold record to see if particular D.C. disciplinary rules were violated and coming to a precise conclusion of what exact sanction would be imposed on the pretense that this is an original disciplinary matter. Where the original disciplining jurisdiction has completed the task and where no other evidence is available to us, the sanction (if there is no disbarment for a crime of moral turpitude) should be determined by the normal rules of reciprocity. That means giving deference to the foreign jurisdiction, but recognizing that if the usual two-step process reveals that D.C. would impose a substantially different sanction, then that would be our recommendation for the Court s consideration. The repeated references in the concurrences to In re Perrin, are misplaced. In Perrin, the Hearing Committee heard all of the evidence before it received the foreign jurisdiction s record 18

19 and recommendation. The factual records in the two matters were wholly independent. The Court held that since the Hearing Committee had already heard a full separate record and devoted much time and effort to the matter, it should not simply defer to a later decision of another jurisdiction made on an entirely different record. The Court said the Hearing Committee and the Board should give their independent views, letting the Court have the benefit of considering both those views and the foreign jurisdiction s views when making a final decision. In this case, the reciprocal record was all our Hearing Committee had, and after making (at Bar Counsel s urging) an independent analysis of it (complete with findings of facts and careful weighing of the local precedents), it came to the identical decision of not one but two foreign jurisdictions. It would not serve the interests of the volunteers on this Board, the Hearing Committee, or the Court to review each of those findings for substantial record evidence or to review those D.C. precedents with care to see if the Hearing Committee s conclusions are accurate, when treating the matter as a reciprocal proceeding they would arrive at the identical conclusion, saving the time and resources of the Board, the Hearing Committee, and the Court for much more pressing matters. We agree with the thrust of the concurrences that Bar Counsel should generally present independent evidence where the issue is moral turpitude involved in a criminal conviction. However, where Bar Counsel has decided for whatever reason not to do so and relies exclusively on a record developed in a completed foreign jurisdiction proceeding, we believe that after the moral turpitude analysis is completed, the Hearing Committee and the Board should move directly to a reciprocal discipline approach. More importantly, to preserve Court resources, this is what we recommend that the Court do in this case. 19

20 There remains the question of the nunc pro tunc treatment of Respondent s proposed suspension in the District of Columbia. The Hearing Committee did not address that issue, although both Bar Counsel and Respondent s counsel included such a recommendation in their post-hearing submissions. In those submissions, both Bar Counsel and Respondent s counsel urged that the six-month suspension be imposed, nunc pro tunc, to April 3, 2006, the date on which Respondent filed his Section 14(g) affidavit, as required by D.C. Bar R. XI, 16(c). In earlier pleadings, Respondent requested that the suspension run from March 1, 2004, the date of his suspension in New York. In light of Respondent s fully compliant Section 14(g) affidavit, his satisfactory service of his suspension in three other jurisdictions and his cooperation with all of the disciplinary authorities, we concur in the request for nunc pro tunc treatment of his suspension. Further, in light of the fact that it is now more than six months since April 3, 2006 and Respondent has already been suspended by the Court s March 22, 2006 order for more than six months in this jurisdiction, we recommend that his suspension be made to run, nunc pro tunc, to April 3, 2006, and be deemed to have been fully served when the Court imposes the recommended six-month suspension. C. The Propriety of this Board s Order of Remand to the Hearing Committee In its letter of October 24, 2007 to the Board, the Office of Bar Counsel noted its exception to the October 19, 2006 Order of the Board, which required a Hearing Committee to consider both the moral turpitude question arising from the criminal conviction as well as the reciprocal discipline issue. Because Bar Counsel apparently intends to raise this issue with the Court and because we believe an explanation of our approach to consolidated criminal conviction-reciprocal cases may be helpful to the Bar, Bar Counsel and the Court, we amplify our reasons for our October 19, 2006 Order. 20

21 Although the former Chairman of the Board, who authored that order, is no longer on the Board and the composition of the Board is somewhat different today than it was then, the Board unanimously concludes that the earlier order was correct. In April 2006, Bar Counsel submitted a four-page brief, requesting that the Board itself find no moral turpitude as a matter of fact, based on what it described as a decision by a court in New Jersey. It appeared that it was referring to a foreign jurisdiction s order of reciprocal discipline rather than an original order of discipline. It now appears that Bar Counsel meant to refer to the court in New York. More significantly, the brief provided only the most cursory description of the facts, contained in a seven-line paragraph. Finally, the brief did not contain any analysis of exceptions to the imposition of reciprocal discipline, as is customary when reciprocal discipline is sought. Assuming that the Board was free to consider, without referring the matter to a Hearing Committee, whether Respondent s crime involved moral turpitude on the facts a matter that is not free from doubt the slim record offered by the Office of Bar Counsel provided no basis or opportunity for the Board to give a reasoned analysis under our law of whether the crime to which Respondent had pleaded guilty, particularly one involving intent to defraud, involved moral turpitude as a matter of fact. Compare Colson, 412 A.2d at 1165 (noting that a full hearing is necessary to determine whether a crime involves moral turpitude on the facts). Apparently, Bar Counsel was not so sure either because eight months after submitting its brief (and after receiving the Board s October 2006 order), Bar Counsel advised that it had requested additional records from Respondent s disciplinary proceeding... and additional records from the New York criminal case. Those additional records may well have contained information that would have clarified the moral turpitude question. Further, even after Bar Counsel received 21

22 these additional records, it did not seek to call certain witnesses, including the two paralegals and the intern, who could have provided additional illumination about the motives of Respondent, the surrounding circumstances of the crime, and the credibility of Respondent. We do not raise these matters to undermine the determination of no moral turpitude, but to emphasize that moral turpitude (where the elements of the criminal statute are not dispositive) is an intensely factual question, which generally requires an evidentiary hearing before a Hearing Committee, rather than the Board s review of a cold record. And, of course, if there is moral turpitude, then the sanction must be disbarment under D.C. Code (a), rather than an identical six-month reciprocal suspension, which Bar Counsel urged us to adopt. Further, unlike the situation in In re Gailliard, Bar Docket Nos & (BPR June 29, 2007) (pending review), where the respondent was suspended with a fitness requirement, Respondent s sanction in the original jurisdiction had no fitness requirement. In Gailliard, the Board was willing to recommend that the Court impose a reciprocal suspension, while deferring the moral turpitude question on the underlying conviction, because if and when the respondent sought to establish fitness, there would be an opportunity to consider whether or not the conviction involved moral turpitude. If it did, he would of course be disbarred or at least not be readmitted at that time. In this case, if the Board had acted solely on the reciprocal sanction, there would have been no later opportunity for an evidentiary hearing on the moral turpitude question. The October 2006 order of the Board relied on our decision over a decade ago in In re Mason, Bar Docket No (BPR Feb. 28, 1994), where the Board made clear that in the usual case that involves both a criminal conviction of a serious crime (which does not constitute moral turpitude per se) and a reciprocal discipline matter, the Board would consolidate the 22

23 matters and send them to a Hearing Committee for both a moral turpitude analysis and a recommendation for discipline based on the entire record. We continue to adhere to that approach. The Board s order of October 2006 also noted that a referral to a Hearing Committee under these circumstances appears mandated by Board Rules 10.1 and We concur. In Colson, the en banc Court held that where a crime is found not to constitute moral turpitude per se a hearing is necessary to explore the underlying circumstances of the crime, including the respondent s knowledge and intent, in order to decide whether the crime involves moral turpitude on the facts. Board Rule 10.2 embodies this principle. It states that, If the Board determines that the crime of which respondent was convicted is not one involving moral turpitude per se, the matter shall be referred to a hearing committee to determine if the conduct underlying respondent s offense involves moral turpitude within the meaning of D.C. Code (a). We note that the language of the Rule is mandatory. The Gailliard decision indicates that this is not an absolute rule and that a hearing on moral turpitude may be postponed where reciprocal discipline with a fitness requirement is otherwise appropriate. But when Bar Counsel seeks a finding of moral turpitude, a hearing where the Hearing Committee is given a full opportunity to examine the moral turpitude question should be the norm. Exceptions should be rare and entertained only when the facts are so indisputably clear that the Board can make a decision without a reference to a fact-finding panel or when the particular circumstances provide for a later opportunity to make a moral turpitude analysis by a Hearing Committee. Neither was the situation here. The proceeding resulting from the remand to the Hearing Committee was quite helpful to the Board and we believe it will be to the Court. Based on all of the material submitted to the 23

24 Hearing Committee (which included much that was not before the Board in October 2006 and may not have even been in Bar Counsel's possession at that time) and based on the excellent analysis perfonned by the diligent Hearing Committee, the Board is much more confident now than it would have been in October 2006 recommending to the Court that it find no moral turpitude and that it suspend Respondent for six months, nunc pro tunc to April 3, III. CONCLUSION For the foregoing reasons, the Board recommends that the Court find that Respondent's misdemeanor conviction of insurance fraud in the fifth degree did not involve moral turpitude and that based on his sixth-month suspension in New York, it impose a reciprocal discipline ofa six-month suspension, to be effective, nunc pro tunc, from April 3, 2006, when Respondent filed a fully compliant Section 14(g) affidavit. Because Respondent has been suspended in this jurisdiction by order ofthe Court since March 22, 2006, the Board further recommends that his suspension be deemed fully satisfied upon the Court's entry of a further order in this matter. BOARD ON PROFESSIONAL RESPONSIBILITY Dated: liar 28 Jre All members of the Board concur in this Recommendation. Jeffrey have filed separate statements. Mr. Mercurio and Ms. I We recognize that the Hearing Committee was following the Board's directive in its October 19, 2006 order of referral. To avoid confusion regarding a Hearing Committee's mandate in consolidated criminal convictionreciprocal cases, the Board in the future will tailor its remand orders, taking into consideration the particular circumstances ofthe case, to give the Hearing Committee better direction on how to conduct its analysis. 24

25 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : SCOTT L. WISS, : : Respondent. : Bar Docket Nos & : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : CONCURRING STATEMENT OF BOARD MEMBER JAMES P. MERCURIO In this matter, the District of Columbia Court of Appeals ( the Court ), notified of a misdemeanor conviction for Insurance Fraud in the Fifth Degree and a disciplinary suspension of Respondent from the practice of law in New York, directed the Board to (1) institute a formal proceeding to determine the nature of the final discipline to be imposed, and specifically to review the elements of the [New York criminal] offense for the purpose of determining whether or not the crime involves moral turpitude within the meaning of D.C. Code (a) (2001), and (2) recommend promptly thereafter to this Court whether identical, greater or lesser discipline should be imposed as reciprocal discipline. I join the majority in recommending a six-month suspension in this matter and in much of the analysis in the majority report, but employ somewhat different legal reasoning in reaching my conclusion regarding that recommendation. Although Respondent s conviction was for a serious crime, as defined in D.C. Bar R. XI, 10(b), his offense does not involve moral turpitude per se. 1 The Board thus referred the 1 The term serious crime is defined in D.C. Bar R. XI, 10(b) as including the following: (1) any felony, and (2) any other crime a necessary element of which, as determined by the

26 matter to a Hearing Committee, as provided in Board Rule 10.2, to determine (a) if the conduct underlying respondent's offense involves moral turpitude within the meaning of D.C. Code Section (a) and, if not, (b) what final discipline is appropriate in light of Respondent s conviction of a serious crime. 2 Board Rule 10.2 prescribes, in explicit terms, the procedures in any proceeding under Section 10 of Rule XI based upon an attorney's conviction of a serious crime. That Board Rule gives no specific direction concerning determination of the discipline to be imposed for the serious crime, but it expressly permits Bar Counsel to file a petition instituting a proceeding pursuant to Section 8 of Rule XI based on the conduct underlying respondent's crime, which Bar Counsel filed in this matter. Board Rule After reaching a determination whether the crime involves moral turpitude or not, the Hearing Committee is told in Board Rule 10.2 to do the following: Whether or not the Hearing Committee concludes that the offense involves moral turpitude, the Hearing Committee shall determine if respondent s conduct violated the disciplinary rules charged in the petition, if Bar Counsel filed a petition and, if so, shall statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a serious crime. Respondent s crime involved fraud, deceit and misrepresentation. The Court held in In re McBride, 602 A.2d 626, 635 (D.C. 1992) (en banc), that a lawyer convicted of a misdemeanor, including one with an intent to defraud, shall be entitled to a hearing on whether that crime, on the facts, involves moral turpitude. A misdemeanor, therefore, regardless of its definition, cannot be deemed a crime involving moral turpitude per se. 2 The Court order referring the matter to the Board did not explicitly direct the Board to determine the appropriate final discipline for Respondent s conviction of a serious crime. D.C Bar R. XI, 10(d) provides, however, that [u]pon receipt of a certified copy of a court record demonstrating that an attorney has been found guilty of a serious crime... Bar Counsel shall initiate a formal proceeding in which the sole issue to be determined shall be the nature of the final discipline to be imposed. 2