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

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) PAUL DRAGER, ) ) ) Respondent. ) Bar Docket Nos & REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY Respondent is a member of the Bar of the District of Columbia, having been admitted by motion on June 10, Since November 30, 1993, Respondent has been administratively suspended in the District of Columbia for nonpayment of dues. This matter is now before the Board to recommend whether reciprocal discipline should be imposed on Respondent. I. In two separate proceedings, Respondent was first censured and then disbarred in the State of New York. 1 Bar Docket No has previously been before the Board. That matter arises out of a disbarment order entered against Respondent by the Supreme Court of the State of New York, Appellate Division, Second Department ( New York Court ) on November 13, That disbarment order was based on Respondent s repeated failures to respond in writing to client complaints of misconduct filed with the Grievance Committee for the Ninth Judicial District in New York ( Grievance Committee ). The disbarment order was entered by the New York Court 1 On November 20, 2003, Bar Counsel reported Respondent s reciprocal disbarment in Florida to the Court for informational purposes. The disbarment is based on the New York misconduct and Respondent s failure to report the New York discipline to the Florida Supreme Court.

2 based on Respondent s default, i.e., his failure to make any response to a formal disciplinary proceeding instituted by the Grievance Committee. The disbarment order also noted that Respondent had previously been censured by the New York Court, but did not recite any details of the censure. This Board, after examining that disbarment order under the standards of D.C. Bar R. XI, 11(c), concluded that reciprocal discipline was clearly appropriate, but that this jurisdiction would not disbar an attorney for similar misconduct, and that substantially different discipline was warranted. The Board recommended that Respondent be suspended for 30 days and be required to prove his fitness to practice law before resuming practice here. Respondent did not participate in that reciprocal proceeding. At that time, although the Board was aware that Respondent had previously been censured in New York, the Board had no information about the facts underlying that censure. While our recommendation in No was pending before the Court of Appeals, the Board learned details of that censure. In a second reciprocal proceeding initiated by Bar Counsel, docketed as No , the Board was apprised that, on June 10, 1996, Respondent was publicly censured by the New York Court based on several counts of misconduct involving neglect, misrepresentation, and failure to cooperate with a grievance committee investigation. 2 That misconduct was admitted by Respondent in the New York proceeding. In light of this new information, the Board requested that the Court of Appeals defer its proceedings in No , so that the Board could consider the effect of all of Respondent s New York disciplinary history in one proceeding. Respondent has not participated in any way in the new proceeding. 2 The New York Court s order of public censure refers to two letters of admonition and a letter of caution previously issued to Respondent by the Grievance Committee. See In re Drager, 643 N.Y.S.2d 1015, 1016 (App. Div. 1996). On March 3, 2003, Bar Counsel filed a motion with the Board to file documents under seal because under New York law the letters of admonition and the letter of caution are confidential documents. The Board hereby grants Bar Counsel s motion and directs that the letters of admonition and the letter of caution be filed under seal. 2

3 II. Respondent s discipline that led to No arose from his inaction in two unrelated matters: the Wilkin (or Helm) matter, and the Bordes matter. The Wilkin matter involved Respondent s failure to handle an insurance defense case properly. In or about July 1992, Respondent was retained by Essex Insurance Co. to represent their insured, Prime Time Dinner Club, in litigation pending in the Supreme Court for Dutchess County, New York (Wilkin v. Prime Time). Although Respondent served an answer and initial discovery demands, he thereafter neglected the case, failing to appear at a preliminary conference in court in February 1993, and failing to respond to or comply with a conference order issued in March Despite the efforts of Essex s casualty claims supervisor, Nancy Helm, Respondent failed to keep Essex apprised of the status of the case and also failed to withdraw from the matter. Indeed, in January 1994, Respondent affirmatively told a representative of Essex, Steven J. Fried, that he intended to withdraw from the Wilkin case, yet he failed to withdraw. Judgment was eventually entered in favor of the plaintiff against the insured, Prime Time, in May 1994, although in May 1993, a different court also ruled that the insurance policy issued by Essex to Prime Time did not cover the claims at issue in Wilkin. In June 1994, Ms. Helm submitted a complaint to the Grievance Committee about Respondent s conduct, and the Grievance Committee opened an investigation, requesting that Respondent respond to Ms. Helm s complaint. After three attempts to secure a response, Respondent failed to submit any written answer to the charges in Ms. Helm s complaint. Based on this conduct, the Special Referee concluded, and Respondent admitted, that Respondent had violated New York Disciplinary Rules 1-102(a)(4) (conduct involving dishonesty), 1-102(a)(5) (conduct prejudicial to the administration of justice), and 6-101(a)(3) (neglect of a legal matter). 3

4 The Bordes matter involved a domestic relations case that Respondent handled for Irene Bordes. Ms. Bordes retained Respondent in or about September 1992 regarding a possible divorce action. Although Respondent initially negotiated with Mr. Bordes by mail, subsequently he failed to respond to requests from Mr. Bordes attorney for a net worth statement. Respondent also failed to serve a verified complaint upon Mr. Bordes, and failed to take action for pendente lite relief that Ms. Bordes requested he pursue. He also falsely stated to Ms. Bordes that he had filed the application for pendente lite relief when he had not in fact done so. Finally, after Ms. Bordes filed a complaint with the Grievance Committee, Respondent failed to respond to Ms. Bordes complaint, as requested twice by the committee. The special referee found, and Respondent admitted, that this conduct violated New York Disciplinary Rules 1-102(a)(4), 1-102(a)(5), and 6-101(a)(3). As explained more fully in our prior report and recommendation, Respondent s discipline in No arose out of his failure to make a proper response to three separate complaints filed with the Grievance Committee by disaffected clients during the period. Respondent s cooperation with the Grievance Committee varied somewhat. In the Baumann matter, Respondent complied with a subpoena from the Grievance Committee and also appeared for a deposition, but never made any substantive written response to the initial client complaint. In the Tyhacz matter, Respondent appeared for a deposition but made no written response to the client complaint. In the Buchanan matter, Respondent made no answer to the complaint and, after requesting an extension of time to respond to a subpoena duces tecum, failed to produce the requested documents. The Grievance Committee then moved in the New York Court for authorization to institute a disciplinary proceeding against Respondent, charging him with violations of 4

5 DR 1-102(a)(5). The New York Court granted that authorization and directed Respondent to respond to the disciplinary charge. When Respondent failed to do so, the New York Court declared him in default, ruled that the charges had been established, and ordered him disbarred. III. The only serious issue in this case is sanction. It is clear that Respondent committed misconduct that would have been sanctionable under the District of Columbia Rules of Professional Conduct. Nor is there any reason to believe that Respondent was deprived of due process or any other substantial rights in New York. Thus there is no question that some disciplinary sanction should be imposed upon Respondent in this jurisdiction. 3 The key question in this case is whether we should review the sanction imposed by the foreign jurisdiction under the usual full review standards applicable under D.C. Bar R. XI, 11(c), or whether -- given Respondent s total nonparticipation in both reciprocal proceedings -- we should review it under the much more limited scope dictated by cases such as In re Childress, 811 A.2d 805, 807 (D.C. 2002), which is limited to ensuring that no obvious miscarriage of justice would result in the imposition of identical discipline. See also In re Cole, 809 A.2d 1226, (D.C. 2002) (per curiam); In re Spann, 711 A.2d 1262 (D.C. 1998). In this case, the scope of review is important, because, if we were to review Respondent s foreign discipline 3 The misconduct proven in New York would surely constitute misconduct in the District of Columbia, under Rules 1.1(a), 1.1(b), 1.3(c), 8.1, and 8.4(d). In each New York matter, Respondent was also found to have violated DR 1-102(a)(8), which prohibits conduct adversely reflecting on an attorney s fitness to practice law. That Disciplinary Rule does not have any analogue in the D.C. Rules of Professional Conduct, and so we do not consider those violations, but in any event they largely duplicate the other violations that were found by the New York Court. Respondent received adequate due process in New York. He participated fully in one proceeding, and although he defaulted in the second proceeding, he was personally served with the New York Court s order directing the institution of disciplinary proceedings. See Attachment B to Bar Counsel Statement in No There is no infirmity of proof that would lead to the clear conviction that we cannot conscientiously accept the New York Court s sanction determination. Respondent acknowledged his misconduct in the matter leading to No , and although he defaulted in the matter leading to No , he has failed to challenge the outcome of that proceeding here. 5

6 under D.C. Bar R. XI, 11(c), it is unlikely that we would recommend that Respondent receive the identical reciprocal discipline of disbarment. 4 By contrast, if we approach this case under Childress, we do not see that any obvious miscarriage of justice would result from disbarment. There is no question that Respondent s misconduct in New York was serious. While it is unlikely that Respondent would have been disbarred in an original proceeding in this jurisdiction for the same misconduct, the sanction of disbarment for that misconduct is not so excessive as to be grossly unjust especially as it is quite likely that Respondent would be subject to a fitness requirement in this jurisdiction for similar misconduct. The situation is a novel one. Before us are two unrelated reciprocal proceedings, in each of which the foreign jurisdiction imposed a sanction that almost certainly would not have been imposed as an original matter in the District of Columbia. In No , the sanction of disbarment imposed by the New York Court would surely be too heavy in this jurisdiction for the misconduct that was the subject of that matter. On the other hand, in No , the New York Court s sanction of a public censure almost certainly would be too light in this jurisdiction for the misconduct in that case, even in light of various mitigating circumstances that were found. It is most appropriate to consider the reciprocal sanction that would be applicable had the two matters been referred to us in a consolidated proceeding; indeed, this case could have been handled more efficiently had Bar Counsel brought the two cases together. Cf. In re Thompson, 492 A.2d 866, 867 (D.C. 1985) (instructing Board to consider sanction that would be applicable 4 Although Bar Counsel has pointed to In re Haupt, 444 A.2d 317 (D.C. 1982) (per curiam), as an example of a case where an attorney was disbarred for neglect, dishonesty, and failure to cooperate with Bar Counsel, the facts of that case were considerably more egregious than this case, involving more numerous and more serious violations and lacking the mitigating circumstances that the New York Court found in this case. In our judgment, had this case been prosecuted as an original matter, it would most likely have resulted in a period of suspension no greater than a year, along with a fitness requirement. Cf. In re Jones, 544 A.2d 695 (D.C. 1988) (per curiam). That sanction is substantially different discipline than the sanction of disbarment. 6

7 if all cases had been brought together); In re Brown, 709 A.2d 724, 725 & n.3 (D.C. 1998) (per curiam) (considering original and reciprocal cases together in determining sanction). Although Respondent has not participated in either case, Bar Counsel has not relied on Childress and indeed has not asked for identical reciprocal discipline in either case, but has argued for substantially different discipline in both cases, but has further argued that, the sanction for the two cases taken together should be disbarment. Nonetheless, we conclude that in this situation, it is appropriate to analyze this case under Childress. In Childress, the Court of Appeals instructed us as follows: [I]n cases where neither Bar Counsel nor the attorney opposes identical discipline, [t]he most the Board should consider itself obliged to do 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.... [I]n such circumstances, the imposition of identical discipline should be close to automatic, with minimum review by both the Board and this court. 811 A.2d at 807 (citations, internal quotation marks, and brackets omitted). Certainly the attorney has not opposed identical discipline in this case, as he has not participated at all. Whether Bar Counsel has opposed identical discipline is a more difficult question, for Bar Counsel argued in both cases that substantially different discipline should be imposed, although the net result of consolidating the two cases is that Bar Counsel s bottom line recommendation of disbarment is identical to the discipline that the New York Court imposed on Respondent in the latter of the two matters. The more important point, however, is that Respondent has not participated at all. Childress teaches at bottom that the disciplinary system need not make extraordinary efforts to secure a more lenient reciprocal sanction for an attorney who cares so little about his license to practice law in this jurisdiction that he makes no objection 7

8 to the possibility that he might be reciprocally disbarred here. We make this judgment based on our recognition that Bar Counsel has not made a practice of supporting identical reciprocal discipline when the discipline would be grossly disproportionate to the violation if it were prosecuted as an original matter in this jurisdiction, as evidenced by her initial recommendation against disbarment in No Accordingly, as we conclude that no obvious miscarriage of justice would result if the reciprocal discipline of disbarment were imposed on Respondent, we recommend that Respondent be disbarred. BOARD ON PROFESSIONAL RESPONSIBILITY By: Paul R.Q. Wolfson Dated: November 26, 2003 All members of the Board join this report and recommendation except Ms. Holleran Rivera, who did not participate. 8