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: : : SHERRYL V.R.S. GOFFER, : AKA SHERRYL SNODGRASS CAFFEY, : D.C. App. No. 14-BG-5 : Board Docket No. 14-BD-002 Respondent. : Bar Docket No D399 : A Suspended 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 was referred by the District of Columbia Court of Appeals to the Board on Professional Responsibility ( Board ) for a recommendation with respect to the imposition of reciprocal discipline. It arises from an August 21, 2009 Order of the Supreme Court of Alabama disbarring Respondent Sherryl V.R.S. Goffer (a.k.a. Sherryl Snodgrass Caffey). 1 The Board recommends with two members dissenting that the Court impose nonidentical reciprocal discipline to prevent an obvious miscarriage of justice. Rather than the identical discipline of disbarment, the Board recommends that the Court impose a 90-day suspension with a fitness requirement as a condition of reinstatement, deemed to commence for purposes of reinstatement on the date Respondent files an affidavit that fully complies with D.C. Bar R. XI, 14(g). I. BACKGROUND On November 24, 1986, Respondent was admitted to the Bar of the District of Columbia Court of Appeals. She was administratively suspended on November 30, 1987 for nonpayment 1 Since her admission to the District of Columbia Bar, Respondent changed her name to Sherryl Snodgrass Caffey, but she never updated her name with the Bar s membership department. Respondent is referred to as Ms. Caffey in her Alabama disciplinary matter.

2 of dues. That administrative suspension remains in effect today. On December 11, 2008, the Disciplinary Board of the Alabama State Bar ( Alabama Disciplinary Board ) disbarred Respondent. On August 21, 2009, the Alabama Supreme Court issued its Order affirming Respondent s disbarment. In or around October 2013, Respondent self-reported her Alabama disbarment to Bar Counsel when attempting to reactivate her District of Columbia Bar membership. On January 3, 2014, Bar Counsel filed with the Court a certified copy of the Supreme Court of Alabama s August 21, 2009 order of disbarment. On January 9, 2014, Bar Counsel notified Respondent of the requirement to file an affidavit pursuant to D.C. Bar R. XI 14(g), within ten days of the effective date of any temporary suspension. On February 3, 2014, the Court, pursuant to D.C. Bar R. XI, 11(d), temporarily suspended Respondent from the practice of law in the District of Columbia pending the conclusion of this reciprocal discipline matter and ordered Respondent to show cause within 30 days why she should not be disbarred. The Court further directed Bar Counsel to reply to Respondent s statement or, alternatively, submit a statement objecting to the imposition of reciprocal discipline based on the factors set forth in D.C. Bar R. XI, 11(c). Respondent did not respond to the Court s order to show cause. On March 5, 2014, Bar Counsel notified the Court that Respondent also did not submit a D.C. Bar R. XI, 14(g) affidavit. On March 18, 2014, Bar Counsel filed its position statement on reciprocal discipline with the Court, recommending that identical reciprocal discipline of disbarment be imposed. 2

3 On March 28, 2014, the Court stayed final action in this matter, referred it to the Board for its recommendation on whether identical reciprocal discipline should be imposed, and directed the Board to submit its recommendation within 60 days. On April 3, 2014, the Board issued an Order directing the parties to file simultaneous briefs on the issue of reciprocal discipline within 15 days. On April 17, 2014, Bar Counsel filed its brief with the Board as directed, in which it recommended the imposition of the identical reciprocal discipline of disbarment, on the grounds that disbarment is within the range of sanctions that would be imposed in this jurisdiction for the same misconduct. Bar Counsel also alleged that during conversations with Respondent, she repeatedly asserted to Bar Counsel that she had not been disbarred but that nefarious actors had inserted forged documents into the files of the Alabama Supreme Court clerk s office to give the appearance that she had been disbarred. (Statement of Bar Counsel at 5.) Also on April 17, 2014, Respondent contacted the Board s Office of the Executive Attorney by telephone, to ask about the due date for filing her statement on reciprocal discipline and was informed that it was April 18. The notes of the Board s case manager show that she advised Respondent that if she could not meet the deadline, she should file a motion for an extension or a motion for leave to late-file her statement. (Case Manager s Memo to File.) 2 Thereafter, Respondent neither filed a statement of her position on reciprocal discipline with the Board, nor sought an extension of time in which to do so. On April 21, 2014, Bar Counsel received a box of materials in the mail from Respondent, which was addressed to the Clerk of the Court. (Letter of Bar Counsel to Clerk of Court, April 2 The case manager s notes also show that Respondent insisted that she [had] filed everything with [Assistant Bar Counsel] Bill Ross so he could file it with [the] Court. (See Case Manager s Memo to file.) 3

4 21, 2014.) Assistant Bar Counsel alleges that his office contacted Respondent, who explained that she had sent the materials to ensure that Judge Washington, who ruled against me, receives the evidence which shows that I have not been disbarred. (Id.) At Respondent s request, Bar Counsel forwarded the materials to the Court. (Id.) The Board understands that those materials were returned to Respondent, because they were not considered to be a responsive pleading. II. THE ALABAMA PROCEEDINGS Respondent was disbarred based on her conduct during a one-week criminal trial in Alabama state court. (Statement of Bar Counsel, Attachment A (Report and Order of the Disciplinary Board of the Alabama State Bar at 3, 15 (Dec. 11, 2008)) (hereinafter Alabama Board Report at [ ] ).) The Assistant District Attorney who prosecuted the criminal case filed the disciplinary complaint against Respondent. (Id.) The Alabama Disciplinary Board determined by clear and convincing evidence that Respondent s conduct during the trial violated the Alabama Rules of Professional Conduct. (Id. at 16.) In reaching its determination, the Alabama Disciplinary Board found that: (1) Respondent called the prosecutor a liar during voir dire; (2) Respondent also called the prosecutor a liar during a Batson hearing based on the prosecutor s asserted reasons for wanting to exclude certain African American jurors; (3) Respondent was rude and hostile to witnesses, interrupting their answers or shouting at them, calling prosecution witnesses liars, and even demanding that the judge charge one witness with perjury; (4) Respondent engaged in a continual pattern of interrupting the judge, arguing with his rulings, and yelling at him; and (5) Respondent showed obvious disrespect for the court by jumping up and down in the courtroom, refusing to proceed with the case after the judge ruled against her, and yelling at the judge during a conference in his chambers. (Id. at 3-12.) Ultimately, the judge held Respondent in contempt for her actions and 4

5 declared a mistrial, because he determined that Respondent s client could not receive a fair trial given Respondent s behavior. (Id. at 15.) The Alabama Disciplinary Board found that Respondent s conduct violated Alabama Rules of Professional Conduct 3.1(a) (meritorious claims or contentions), 3.2 (expediting litigation), 3.5(c) (conduct intended to disrupt a tribunal), 8.2 (false statement concerning integrity of judicial officer), 8.4(a) (misconduct), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(g) (conduct adversely reflecting on attorney s fitness to practice law). (Id. at 16.) In aggravation of sanction, the Alabama Disciplinary Board noted that although Respondent had significant experience in the practice of law and a client in a vulnerable position, she acted with a dishonest and selfish motive, engaged in a pattern of misconduct that included multiple violations, and refused to acknowledge the wrongful nature of her conduct. (Id. at ) With respect to her inability to admit her wrongful conduct, the Alabama Disciplinary Board found that Respondent showed no remorse, because immediately after she was held in contempt and a mistrial declared, she made comments to a local television station that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial. (Id. at 18.) The only fact in mitigation identified by the Alabama Disciplinary Board was that Respondent had no previous disciplinary record. (Id. at 17.) The Alabama Disciplinary Board disbarred Respondent based on this record. The Alabama Supreme Court affirmed that ruling. (See Statement of Bar Counsel, Attachment B (Order, In re Caffey, ASB No (A) (Ala. Aug. 21, 2009)).) After the Alabama Court s order of disbarment, Respondent filed a federal civil complaint against the Alabama Supreme Court, individual Alabama Supreme Court Justices, the Alabama Supreme Court Clerk, an Alabama Supreme Court staff attorney, an Alabama Circuit 5

6 Court judge, the Alabama State Bar, various Alabama State Bar personnel, the Alabama Disciplinary Board panel, and the prosecutor in the underlying criminal matter. (Statement of Bar Counsel, Attachment D (Caffey v. Ala. Supreme Court, No. 2:10-cv VEH (11th Cir. Mar. 20, 2012)).) Respondent s case was dismissed by the trial court on immunity grounds, and the Eleventh Circuit affirmed the order of dismissal. (Id. at 3, 6.) III. THE LEGAL STANDARD GOVERNING THE IMPOSITION OF RECIPROCAL DISCIPLINE Under D.C. Bar R. XI, there is a presumption in favor of imposing identical reciprocal discipline. D.C. Bar R. XI, 11(c) and (e); see In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). There are five exceptions to the presumption of identical reciprocal discipline: (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. D.C. Bar R. XI, 11(c). One or more of these exceptions must be established through clear and convincing evidence to avoid the imposition of identical reciprocal discipline. D.C. Bar R. XI, 11(c) and (e). In other words, as the dissent correctly notes, there is a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction. The purpose of the presumption is to avoid an inconsistent disposition involving identical conduct by the same attorney. In re Demos, 875 A.2d 636, 641 (D.C. 2005) (emphasis added) (quoting Zilberberg, 612 A.2d at 834; In re Velasquez, 507 A.2d 145, 147 (D.C. 1986)). 6

7 Complicating the analysis in this matter, however, is the fact that Respondent has not participated in the process (at least materially). When neither Bar Counsel nor the respondent opposes the imposition of identical reciprocal discipline, the Board s role is limited 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 Spann, 711 A.2d 1262, 1265 (D.C. 1998). While Respondent has made some efforts to participate in this matter contacting the Office of the Executive Attorney and sending materials to the Court of Appeals through Bar Counsel those efforts do not warrant a departure from the obvious miscarriage of justice standard. To avoid application of this standard, the Court requires a respondent to object formally to the imposition of identical reciprocal discipline during the reciprocal discipline process. See In re Kenwood, 934 A.2d 928, 929 (D.C. 2007) (per curiam) (applying obvious miscarriage of justice standard, where the respondent opposed Bar Counsel s recommendation as to the type of discipline that would be functionally equivalent to the foreign discipline, but not the imposition of identical discipline itself); see also In re Ayres-Fountain, Bar Docket No , at 4 (BPR Feb. 5, 2007) (applying obvious miscarriage of justice standard because the respondent s argument for nunc pro tunc treatment and objection to a fitness requirement were not tantamount to an objection in principle to the imposition of reciprocal discipline ), recommendation adopted, 955 A.2d 157, 158 (D.C. 2008) (per curiam). Because Respondent has not responded to the Court s order to show cause or objected in principle to the imposition of identical reciprocal discipline, the obvious miscarriage of justice standard applies. Under that standard, the role of the Board should be a limited one. Spann, 711 A.2d at As the Court explained in Spann: 7

8 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. Id. Indeed, the Court has emphasized that when a respondent does not object, 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). While the Court has made clear when the obvious miscarriage of justice standard applies to support the imposition of identical reciprocal discipline, the circumstances that might justify a departure from the sanction imposed by the original disciplining court are less obvious. The dissent s adherence to the obvious miscarriage of justice standard to support the imposition of disbarment is thus understandable. However, the mere fact that a respondent does not contest or otherwise participate in a reciprocal discipline matter does not mean that there cannot be an obvious miscarriage of justice. Otherwise, the Court would not have qualified the standard as being rarely met (not never met) or only close to automatic (not automatic). Given the lack of precedent showing the exact circumstances under which an obvious miscarriage of justice might occur, the Board has reviewed this matter, relying on analogous case law and the plain meaning of the terms: obvious (easy to see or notice) miscarriage (an unjust legal decision) justice (the process of using laws to fairly judge). See Merriam-Webster Online Dictionary, IV. ANALYSIS Based on the Board s review of the record, a clear majority finds that this matter presents one of those rare instances in an uncontested case where the imposition of identical reciprocal discipline would constitute an obvious miscarriage of justice. While Respondent has not filed 8

9 a formal objection to the imposition of identical reciprocal discipline of disbarment (or otherwise meaningfully participated in this proceeding), the obvious miscarriage of justice analysis should not end there. It is clear on the face of the record that the difference between disbarment and the relatively short suspension that would be imposed in this jurisdiction for the same misconduct is so great that disbarment would produce an unjust result. In other words, it would be an obvious miscarriage of justice to impose the identical reciprocal discipline of disbarment in this case. A. The Imposition of Some Form of Reciprocal (but not Identical) Discipline Is Appropriate for Respondent s Misconduct. We have examined the record before the Alabama Disciplinary Board and find that the presumption in favor of imposing reciprocal (but not necessarily identical) discipline has not been overcome. First, D.C. Bar R. XI, 11(c)(5) states that a final determination by another disciplining court that an attorney has been guilty of professional misconduct shall conclusively establish the misconduct for the purpose of a reciprocal disciplinary proceeding in this Court. Respondent s disruptive behavior and inflammatory statements during her client s criminal trial, upon which the Alabama Disciplinary Board based its findings of numerous rules violations, clearly constitutes misconduct in the District of Columbia. 3 Her misconduct would violate District of Columbia Rules of Professional Conduct Rule 1.1(b) (duty to serve a client with skill and care ), Rule 3.5 (impartiality and decorum of the tribunal), and 8.4(d) (serious interference with the administration of justice). 4 3 The Board recognizes that the District of Columbia does not have a counterpart to Alabama Rule 8.2. See infra at 14. This difference does not bear upon the imposition of reciprocal discipline, where the bulk of Respondent s actions constitute misconduct in this jurisdiction. 4 The Board agrees with Bar Counsel that Respondent s subsequent frivolous litigation is not grounds for reciprocal discipline, because it was not part of the record before the Alabama Disciplinary Board. See Statement of Bar Counsel at 4 n.2. Accordingly, the Board has not considered this litigation in deciding the question of reciprocal discipline. However, material 9 footnote continued on following page

10 Second, Respondent had notice and an opportunity to participate in the Alabama disciplinary proceeding, 5 and thus there was no violation of due process. See D.C. Bar R. XI, 11(c)(1). There was also no infirmity of proof. See D.C. Bar R. XI, 11(c)(2). The imposition of some form of reciprocal discipline is therefore appropriate for Respondent s misconduct. See D.C. Bar R. XI, 11(e). 6 Because the disbarment imposed by the Alabama Disciplinary Board is so disproportionate to the sanction that would otherwise be imposed in this jurisdiction, we conclude, by clear and convincing evidence, that an obvious miscarriage of justice would occur if Respondent were disbarred, as we explain below. B. Disbarment Would Constitute an Obvious Miscarriage of Justice. A review of the record establishes that imposition of the identical reciprocal discipline of disbarment would not only be substantially different from the sanction that would be imposed for the same misconduct in the District of Columbia, see D.C. Bar R. XI, 11(c)(4), but also would constitute a grave injustice under D.C. Bar R. XI, 11(c)(3). See In re Beattie, 930 A.2d 972, 980 (D.C. 2007) (per curiam) (appended Board Report) (finding a grave injustice when footnote continued from previous page outside the record may be considered in a reciprocal discipline case to determine whether a fitness requirement is appropriate, as we have done here. See In re Ditton, 980 A.2d 1170, 1173 (D.C. 2009). 5 The Report and Order of the Alabama Disciplinary Board notes that Respondent did not attend her disciplinary hearing due to alleged flu symptoms, and called to request a continuance in a telephone message on the same day, but her request for a continuance was denied. Alabama Board Report at 1-2. The Alabama Disciplinary Board found the excuse for her absence unavailing. It is our obligation to defer to that finding under D.C. Bar R. XI, 11(e), absent an exception to the imposition of reciprocal discipline, which has not been established here. 6 The dissent s analysis appears to end here, given that the Court has not yet explained exactly how the obvious miscarriage of justice standard might be satisfied. A majority of the Board concludes, however, that a review must be undertaken to determine whether the difference between the discipline imposed for similar conduct in this jurisdiction and disbarment is so stark that it would be an obvious miscarriage of justice to impose disbarment as identical reciprocal discipline. 10

11 punishment... is far beyond the degree of discipline warranted ) (quoting In re Goldberg, 460 A.2d 982, 985 (D.C. 1983) (per curiam)). The substantially different discipline exception to the imposition of identical reciprocal discipline under D.C. Bar R. XI, 11(c)(4) involves a two-step inquiry. First, the Court must determine if the misconduct would not have resulted in the same punishment here as it did in the disciplining jurisdiction. In re Jacoby, 945 A.2d 1193, (D.C. 2008) (quoting In re Garner, 576 A.2d 1356, 1357 (D.C. 1990)) (citations omitted). The [s]ame punishment is defined as a sanction within the range of sanctions that would be imposed for the same misconduct. Id. Second, if the discipline in this jurisdiction would be different from that imposed by the original disciplining court, the difference must be substantial. Id. (citing Demos, 875 A.2d at 642). With respect to the first step of the inquiry, the Court has consistently imposed sanctions short of disbarment ranging from letters of informal admonition to a 60-day suspension for contumacious conduct in the courtroom. On the lower end of the range, Bar Counsel has issued informal admonitions for impulsive outbursts in court and related conduct. 7 See, e.g., In re Battino, Bar Docket No D388, at 1 (BC Feb. 26, 2008) (yelling and barricading the courtroom door); In re Mizrahi, Bar Docket No , at 1 (BC July 2, 2004) (walking out of court, disobeying the judge s instructions, and taking a disrespectful tone with the judge). 8 Undeniably, these cases are distinguishable from the instant case insofar as the misconduct 7 Informal admonition letters... may contain sufficient detail to be useful to this court in determining the range of sanctions appropriate in similar circumstances. In re Schlemmer, 840 A.2d 657, 662 (D.C. 2004). 8 See also In re Evans, 533 A.2d 243, 245 (D.C. 1987) (per curiam) (noting that in this jurisdiction the traditional method of dealing with contumacious behavior in the courtroom or in the course of a judicial proceeding is to cite the offender for contempt of court, and declining to impose identical reciprocal discipline of disbarment, opting instead to publicly censure the respondent for accusing a judge of incompetence and/or a Jewish bias ). 11

12 occurred in civil matters, and the respondents were not held in contempt, did not make public accusations against a judge, and cooperated with Bar Counsel s investigations. In the middle of the range of sanctions, the Court has imposed 30- and 60-day suspensions for contemptuous conduct in open court. See, e.g., Beattie, 930 A.2d at 973, (non-identical reciprocal 60-day probation where the respondent made a false statement to a tribunal, offered false evidence, withheld material facts from the tribunal in an ex parte proceeding, and was held in contempt after telling the judge to perhaps go to anger management classes ); In re Breiner, 742 A.2d 886, 887 (D.C. 1999) (per curiam) (60-day suspension as nonidentical reciprocal discipline for four counts of contempt of court for disobeying court instructions and making improper and disrespectful comments during trial); In re Powell, Bar Docket No (BPR Mar. 23, 1995) (60-day suspension for causing a mistrial by going on vacation on the fourth day of trial); In re Marshall, Bar Docket No (BPR Mar. 13, 1987) (30-day suspension for a second instance of refusing appear for hearings in court-appointed cases, for which the respondent was held in contempt for a second time, and for drafting insincere apology). At the higher end of the range, the Court has imposed suspensions of six to 18 months with fitness, when the misconduct involved a pattern of vexatious litigation. See, e.g., In re De Maio, 893 A.2d 583, 585, 589 (D.C. 2006) (18-month suspension with fitness as nonidentical reciprocal discipline for a pattern of false, spurious and inflammatory allegations against judges and court personnel in pleadings filed with the court); see also In re Fastov, Bar Docket No D105 at 42, 46 (BPR July 31, 2013) (recommendation of 18-month suspension with fitness for filing frivolous claims in order to vent [the respondent s] personal pique in two unrelated cases) (pending appeal); In re Morrissey, 648 A.2d 185, , 190 (D.C. 1994) (per 12

13 curiam) (appended Board Report) (imposing non-identical 18-month suspension with fitness where the respondent engaged in unprofessional, perhaps even bizarre, conduct and numerous instances of litigation misconduct in a single matter ; the Court noted that disbarment would be inconsistent with previous sanctions for misconduct of similar gravity ). 9 The cases on which Bar Counsel relies to support the imposition of identical reciprocal discipline of disbarment involve far more serious misconduct and are thus distinguishable. See In re Ditton, 980 A.2d 1170, (D.C. 2009) (five-year suspension as identical reciprocal discipline, plus a fitness requirement, for a long history of misconduct involving filing frivolous civil actions as well as convictions for public drunkenness and driving under the influence); In re Shieh, 738 A.2d 814, , 819 (D.C. 1999) (disbarment as identical reciprocal discipline for filing frivolous lawsuits, motions, and appeals, and disobeying court orders, for which the respondent was convicted on three counts of criminal contempt, and fled the country to escape punishment). 10 Disbarment cannot credibly be viewed as falling within the fair and just range of applicable discipline for Respondent s misconduct given this precedent. Based on the above precedent, the Board finds that Respondent s misconduct is most analogous to those cases where the Court has imposed 60-day suspensions for contempt of court. Specifically, the Board finds Breiner and Powell to be the most comparable. In Breiner, the respondent was held in contempt multiple times for a pattern of disrespect to the court, as a result of his excessive zeal in representing a criminal defendant. Similarly, in Powell, the respondent 9 But see In re Yelverton, Bar Docket No D128 at 2-10, 23 (BPR July 30, 2013) (90-day suspension with fitness for, inter alia, filing frivolous motions in a criminal case, which included unfounded allegations of unethical conduct by opposing counsel) (pending appeal). 10 Bar Counsel also relies on In re Sibley, 990 A.2d 483 (D.C. 2010), to support disbarment, but Sibley is a reciprocal discipline case where the Court imposed identical reciprocal discipline of a three-year suspension with a fitness requirement. Sibley is not useful precedent for determining the appropriate discipline here, since the Court s order of suspension is based on the presumption in favor of identical reciprocal discipline under D.C. Bar R. XI, 11(c). 13

14 was held in contempt and caused a mistrial, harming his criminal defendant client. The findings of the Alabama Disciplinary Board encompass all of the elements of Breiner and Powell and thus warrant a sanction at least as serious. However, the Alabama Disciplinary Board found that Respondent also failed her client, and engaged in equally troubling conduct towards witnesses and the Assistant District Attorney. Given the extreme nature of her contumacious conduct and her failure to recognize it, insofar as she continued to press her grievances outside the courtroom on television, Respondent s misconduct is somewhat more egregious than the 60-day suspension cases. Given these additional factors, the Board recommends that the Court impose a 90-day suspension. The gap between a 90-day suspension and disbarment is so wide that the imposition of identical reciprocal discipline of disbarment would constitute an obvious miscarriage of justice. 11 Our conclusion is supported by the fact that the District of Columbia, unlike Alabama, has not adopted ABA Model Rule 8.2, which prohibits making a statement with reckless disregard for its truth and falsity concerning the qualifications or integrity of a judge.... De Maio, 893 A.2d at 587. In De Maio, a reciprocal discipline case from Maryland, which Bar Counsel concedes has at least some similarities 12 to the present case, the Court declined to impose identical reciprocal discipline of disbarment. The Maryland disbarment was based on findings that the respondent made false, spurious and inflammatory representations and allegations against a judge and clerk of the court, including that the Maryland courts had refused to administer the law. Id. at 585. In addition, the respondent filed a petition to have the judge 11 Even if the Court were to increase the suspension to 18 months, the Board believes that the disparity between such a relatively brief suspension and disbarment remains sufficiently wide that the obvious miscarriage of justice standard is satisfied. 12 See Bar Counsel s Statement Regarding Reciprocal Discipline, filed with the Court (Mar. 18, 2014). 14

15 removed, and made a series of bizarre and outlandish allegations against the court. Id. The Court concluded that the District of Columbia handles disciplinary actions arising from an attorney s personal attacks on a judge or court officer differently from our sister jurisdiction of Maryland, noting that [t]he absence of such a provision [as Rule 8.2] in our Rules of Professional Conduct seems to evince more tolerance for [such] comments. Id. at 587. Accordingly, the Court imposed substantially different reciprocal discipline of an 18-month suspension with a fitness requirement, noting that it is self-evident that there is a substantial difference between a one- to two-year suspension and disbarment. Id. at 589. The substantial difference in the way this jurisdiction treats attacks on judges and court officers, as compared to Alabama, supports our finding by clear and convincing evidence that an obvious miscarriage of justice would occur if the identical reciprocal discipline of disbarment was imposed. V. FITNESS REQUIREMENT AND EFFECTIVE DATE OF DISCIPLINE The Board finds that a fitness requirement should be imposed as part of the reciprocal discipline sanction. Our determination is based on Respondent s disruptive and contumacious conduct, her unapologetic attitude, and her erratic post-discipline actions, which may be considered in determining whether to impose fitness. See Ditton, 980 A.2d at (imposing a fitness requirement under In re Cater, 887 A.2d 1 (D.C. 2005), based on conduct that occurred after the imposition of the foreign discipline). Since her Alabama discipline, Respondent s conduct has raised substantial questions as to her fitness and competence to practice law. Shortly after her disbarment, Respondent sued virtually all parties involved in her disciplinary case, even though they were all clearly immune from suit. (Statement of Bar Counsel, Attachment D (Caffey v. Ala. Supreme Court, No. 2:10-15

16 cv veh (11th Cir. Mar. 20, 2012)).) Her lawsuit was dismissed on grounds immunity, including absolute immunity. In addition, in this proceeding, Respondent failed to respond to the Court s show cause order or to the Board s requests for briefing on whether reciprocal discipline should be imposed, and instead mailed a box of materials to Bar Counsel for submission to the Court, which was rejected by the Court as non-responsive. In addition, Bar Counsel reported to the Board that Respondent repeatedly asserted that she had not been disbarred but that nefarious actors had inserted forged documents into the files of the Alabama Supreme Court clerk s office to give the appearance that she had been disbarred. (See Statement of Bar Counsel at 4-5.) While each of these incidents individually may not raise serious questions about Respondent s fitness, the Board finds that their collective weight, considered together with her underlying misconduct, establishes by clear and convincing evidence a serious doubt as to Respondent s continuing fitness to practice law. See Cater, 887 A.2d at 6. It is not lost on the Board that some of the post-discipline actions attributed to Respondent are hearsay. But the Court has relied on hearsay evidence when determining fitness in the past. See, e.g., Ditton, 980 A.2d at 1173 (imposing reciprocal discipline of a suspension and adding a fitness requirement, based on hearsay in the form of complaints and other documents filed by the respondent against his former law firm, in which he alleged that it had conspired with others to persecute him in a variety of ways ); In re Steele, 630 A.2d 196 (D.C. 1993). In Steele, a neglect case, the respondent did not participate in the proceedings before the Hearing Committee or the Board. 630 A.2d at 198. After the Board issued its Report and Recommendation, which did not recommend a fitness requirement, Bar Counsel filed a motion for reconsideration with the Board. Id. at While the motion for reconsideration was pending, Respondent sent Bar Counsel a letter in which she stated that she was no longer 16

17 practicing law, that her misconduct arose from personal problems that have since been corrected, and that she had become more emotionally stable. Id. at 199. Bar Counsel advised her about the ongoing disciplinary proceedings and recommended that she address her concerns to the Board, but she failed to do so. Id. The Board ultimately denied Bar Counsel s motion for reconsideration and did not recommend a fitness requirement. Id. The Court, however, imposed a fitness requirement based in part on Respondent s letter, which the Court found both ambiguous and troubling. Id. at 201. The Court pointed to Respondent s statement in the letter that she had been unstable in the past, but more emotionally stable now, and concluded that, [a]gainst the background of [her] inability to handle her client s case, the letter did not provide basis to conclude that she was now sufficiently stable to practice law. Steele is factually similar to the instant case in that the respondent failed to participate in the disciplinary process, sent bizarre correspondence to the Office of Bar Counsel, and did not address her arguments to the Board when reminded to do so. 13 While the Board finds that a fitness requirement is warranted based on Respondent s post-discipline actions, the Board has not considered those actions in its recommendation as to the length of Respondent s suspension, because they were not part of the record before the Alabama Disciplinary Board. See D.C. Bar R. XI, 11(e); cf. Ditton, 980 A.2d at Based on the Alabama record plus the evidence of Respondent s actions since the Alabama discipline was imposed, the Board recommends that the Court require Respondent to prove fitness as a 13 The Board recognizes that Steele was decided before the Court established the new standard for assessing fitness in Cater. The weight of the hearsay evidence in this case, considered in connection with the Alabama Disciplinary Board s findings and the frivolous lawsuit filed by Respondent against participants in the Alabama discipline process, convince us that the Cater standard has been satisfied. 17

18 condition of reinstatement, because there is clear and convincing evidence of a serious doubt about Respondent's continuing fitness to practice law. Finally, Respondent has not filed an affidavit pursuant to D.C. Bar R. XI, 14(g). Accordingly, the Board recommends that Respondent s 90-day suspension run from the time she files the required Section 14 affidavit. VI. CONCLUSION Based upon the foregoing, the Board finds that the imposition of identical reciprocal discipline of disbarment would constitute an obvious miscarriage of justice. The Board instead recommends that the Court impose substantially different reciprocal discipline of a 90-day suspension and require that Respondent prove fitness to practice as a condition of reinstatement. The suspension should be deemed to commence, for purposes of reinstatement, on the date Respondent files an affidavit that fully complies with D.C. Bar R. XI 14(g). BOARD ON PROFESSIONAL RESPONSIBILITY By: TRB Thomas R. Bundy, III Dated: May 27, 2014 All members of the Board concur in this Report and Recommendation, except Mr. Barker and Mr. Carter, who have filed a separate dissenting statement, and Ms. Butler, who did not participate. 18

19 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : SHERRYL V.R.S. GOFFER, : AKA SHERRYL SNODGRASS CAFFEY, : D.C. App. No. 14-BG-5 : Board Docket No. 14-BD-002 Respondent. : Bar Docket No D399 : A Suspended Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : DISSENTING STATEMENT OF BOARD MEMBERS JASON E. CARTER AND JOHN BARKER The majority of the Board has recommended the imposition of substantially different reciprocal discipline, based on an in-depth analysis of Respondent s misconduct and the sanction it would have warranted in the District of Columbia. But D.C. Bar R. XI, 11(c) provides that [r]eciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that the attorney s case falls within one of five enumerated exceptions. In re Awuah, 737 A.2d 1033, (D.C. 1999) (emphasis added). In other words, there is a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction.... The purpose of the presumption is to avoid an inconsistent disposition involving identical conduct by the same attorney. In re Demos, 875 A.2d 636, 641 (D.C. 2005) (emphasis added) (quoting In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992); In re Velasquez, 507 A.2d 145, 147 (D.C. 1986)). While the majority s efforts to support the imposition of non-identical reciprocal discipline of a 90-day suspension with fitness are laudable, the presumption of identical discipline has not been rebutted by Respondent, who did not even participate in these proceedings.

20 In considering the Board s duties in reviewing uncontested reciprocal discipline matters, the Court of Appeals has stated: Given this posture, we think the role of the Board should be a limited one. The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline a situation that we anticipate would rarely, if ever, present itself. In re Spann, 711 A.2d 1262, 1265 (D.C. 1998). The Court went on to say that the Board s review in Spann was likely prompted by [the Court s] observation in [In re Gardner, 650 A.2d 693, 696 (D.C. 1994)] that it is appropriate for the Board to consider whether any of the exceptions apply. But such an appropriate review in an uncontested case need not exceed that which we have described above. Id. Rule XI, 11(c) imposes a rigid standard, as to which exceptions should be rare. In re Sibley, 990 A.2d 483, 488 (D.C. 2010) (quoting In re Zdravkovich, 831 A.2d 964, 968, 969 (D.C. 2003)). In this case, the imposition of identical reciprocal discipline of disbarment would not constitute an obvious miscarriage of justice. Respondent was admitted to the Bar of the District of Columbia in November She was administratively suspended approximately one year later, in November 1987, evincing no interest in remaining a member of this Bar. She now has been suspended from practice in the District of Columbia for more than 26 years, during four of which she also was disbarred in Alabama. She did not advise Bar Counsel of the disbarment until recently. Respondent presented no arguments to the Board to counter Bar Counsel s position that reciprocal discipline should be imposed, and she has not responded in any meaningful way to the Court s order to show cause. While it is arguable whether she should face a period of suspension or be disbarred, even under the majority s proposed sanction, Respondent 2

21 will have to petition for reinstatement. Identical reciprocal discipline of disbarment would not result in an obvious miscarriage of justice under these circumstances. For the foregoing reasons, we respectfully dissent from the Board s recommendation. Respectfully submitted, /JEC/ Jason E. Carter, Esquire /JB/ Mr. John Barker Dated: May 27,