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

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : MICHAEL D. ROSTOKER, : : Bar Docket No Respondent. : D.C. App. No. 04-BG-1388 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBLITY This matter originally came before the Board on Professional Responsibility (the Board ) on referral from the District of Columbia Court of Appeals (the Court ) for a determination whether any of eleven federal offenses for which Respondent has been convicted are crimes involving moral turpitude, thus requiring that Respondent be disbarred under D.C. Code (a). See Order, In re Rostoker, No. 04-BG-1388 (D.C. Nov. 22, 2004). On August 24, 2005, however, before the Board had acted on the case, the Court directed the Board to institute a formal proceeding to determine whether identical reciprocal discipline should be imposed on Respondent based upon a Judgment of Disbarment entered by the Supreme Judicial Court for Suffolk County, Massachusetts (the Massachusetts Court ), on July 6, The Court consolidated this reciprocal matter with the pending moral turpitude matter under the same Bar Docket Number. See, Order, In re Rostoker, No. 04-BG-1388 (D.C. Aug. 24, 2005).

2 The Board has determined that identical reciprocal discipline should be imposed and recommends that the Court disbar Respondent from the practice of law in the District of Columbia. In view of this recommendation, we have refrained from making any determination on the question whether the underlying criminal offenses constitute moral turpitude per se, as that question will be moot if the Court accepts the Board s recommendation. I. THE FACTS Respondent is an inactive member of the Bar of the District of Columbia Court of Appeals, having been admitted on June 21, On October 7, 2002, he was convicted in the United States District Court for the Northern District of California of the following offenses: Title & Section Nature of Offense No. of Counts 18 U.S.C. 371 Conspiracy 1 18 U.S.C. 2423(b) Travel with Intent to Engage in Sexual Acts with a Minor 18 U.S.C. 2422(b) Using Facilities of Interstate Commerce to Induce a Minor to Engage in Illegal Sexual Acts U.S.C. 1324(a)(1)(A)(iv) 8 U.S.C. 1324(a)(1)(A)(iv)(v)(1) Conspiracy to Induce an Alien to Violate a Law Encouraging an Alien to Come to the United States in Violation of Law 1 1 The offenses involved Respondent s travel to Vietnam with intent to engage in sexual acts (as defined in 18 U.S.C. 2246) with a female between the ages of 12 and 15 years of age. 2

3 On November 2, 2004, Massachusetts Bar Counsel commenced a disciplinary proceeding against Respondent in the Commonwealth of Massachusetts Board of Bar Overseers of the Supreme Judicial Court (the Massachusetts Board ). In his Petition for Discipline, Bar Counsel charged Respondent with violations of Massachusetts Rules of Professional Conduct 3.4(c) ( knowingly disobey[ing] an obligation under the rules of a tribunal ); 8.4(b) (committing a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects ); 8.4(d) (engaging in conduct that is prejudicial to the administration of justice ); and 8.4(h) (engaging in any other conduct that adversely reflects on his or her fitness to practice law ). See Statement of Bar Counsel, filed on October 6, 2005, Appendix C, 8. The charges were based upon Respondent s conviction referred to above and his alleged failure to notify Massachusetts Bar Counsel within ten days of his conviction, as he was required to do under Massachusetts Supreme Judicial Court Rule 4:01, 12(8). See id. at Appendix C, 5, 7. Before the disciplinary charges were heard, Respondent submitted an Affidavit and Resignation to the Massachusetts Board. He acknowledge[d] that [he was] currently under investigation by the Board of Bar Overseers and that the investigation was based on [his] conviction in the United States District Court for the District of Northern California, which is referred to above. See id. at Appendix B, 4-5. He acknowledged in his Affidavit and Resignation that he was convicted as alleged and that he did not within 10 days of the conviction notify Bar Counsel of [the] conviction. Id. at Appendix B, 7. He recited that he submitted his resignation as a member of the Bar of the Commonwealth of Massachusetts... freely and voluntarily. Id. at 3

4 Appendix B, 9. Respondent expressly stated his full awareness that Massachusetts Bar Counsel had recommended his disbarment and that disbarment could enter without further proceedings since [he had] waived [his] right to be heard. Id. The Massachusetts Court accepted Respondent s resignation and ordered that he be disbarred from the practice of law in the Commonwealth and that his name be forthwith stricken from the Roll of Attorneys. Id. at Appendix A. II. ANALYSIS A. Sanction Imposed by the Disciplining Court A resignation procedure, when undertaken in the face of a disciplinary proceeding, provides a sound basis for reciprocal discipline under Rule XI, 11. In re Day, 717 A.2d 883, 888 (D.C. 1998); see also In re Grant, 851 A.2d 428 (D.C. 2004) (per curiam); In re Hest, 825 A.2d 301 (D.C. 2003) (per curiam); In re Barlow, 748 A.2d 415 (D.C. 2000) (per curiam); In re Massey, 725 A.2d 1014 (D.C. 1999); In re Richardson, 692 A.2d 427 (D.C. 1997), cert. denied, 522 U.S (1998). Some previous reciprocal discipline cases have presented a question as to what form of discipline among the sanctions authorized in D.C. Bar. R. XI, 3 would be identical to the disciplining court s acceptance of the attorney s resignation. See, e.g., In re Angel, Bar Docket No et al. (BPR June 3, 2005) (review pending); In re Brown, Bar Docket No et al. (BPR Nov. 30, 2001), adopted, 797 A.2d 1232 (D.C. 2002) (per curiam); In re Cleary, Bar Docket No (BPR Nov. 14, 2000), adopted, 777 A.2d 786 (D.C. 2001) (per curiam). In those cases, however, the disciplining court did not use the term disbar in accepting the tendered resignation and the nature of the disciplinary charges faced by the tendering attorney and other facts in the record suggested that the 4

5 disciplining court did not intend for the respondent to suffer the opprobrium associated with the sanction of disbarment. In this matter, however, the intention of the disciplining court to disbar Respondent is unmistakable. Respondent expressly acknowledged that one implication[] of submitting this resignation was that disbarment could enter without further proceedings. Bar Counsel Statement, Appendix B, 9. In fact, in his Affidavit and Resignation, he expressed the hope that this [resignation] may be accepted without any formal Order of Disbarment or other discipline which could have an adverse impact on [his] future employment and on [his] status as a patent agent before the United States Patent Office. Id. The Massachusetts Court nonetheless accepted Respondent s resignation and entered Judgment of Disbarment, in which it ordered that Respondent is hereby disbarred from the practice of law in the Commonwealth... and [his] name is forthwith stricken from the Roll of Attorneys. Id. at Appendix A. B. Reciprocal Discipline There is a presumption in favor of the imposition of identical reciprocal discipline, 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) apply. 1 D.C. Bar R. XI, 11(f); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). But when a respondent 1 The five exceptions under D.C. Bar R. XI, 11(c) are as follows: (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. 5

6 does not contest the imposition of identical reciprocal discipline and thus offers no evidence that any exception applies, 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 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 this court ). Respondent has filed no response to Bar Counsel s recommendation that he should be disbarred. The Board s role thus 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.... Childress, 811 A.2d at 807 (quoting Spann, supra). We have performed this review with the five exceptions spelled out in D.C. Bar R. XI, 11(c) in mind. Nothing in the record suggests that the Massachusetts procedure was a deprivation of due process. The judgment of the Massachusetts Court was based upon a final judgment of conviction entered by the United States District Court for the Northern District of California. Consequently, no infirmity of proof establishing the misconduct exists that might give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion [of the Massachusetts Court] 6

7 on that subject. D.C. Bar R. XI, 11(c)(2). 2 The misconduct in question would constitute misconduct in the District of Columbia, and previous decisions of the Court demonstrate that disbarment is not substantially different discipline than would be imposed in the District of Columbia. See In re Wortzel, 698 A.2d 429 (D.C. 1997) (per curiam) (disbarment imposed for conviction on two felony counts of child abuse); In re Wolff, 490 A.2d 1118 (D.C. 1985) (disbarment imposed for conviction on one felony count of distribution of child pornography); In re Sharp, 674 A.2d 899 (D.C. 1996) (disbarment imposed for conviction of taking indecent liberties with a child by a person in custodial or supervisory relationship). Accordingly, there is no reason to believe that the Court s imposition of the sanction of disbarment in this matter would result in any miscarriage of justice. III. CONCLUSION The Board recommends that, as reciprocal discipline in this matter, Respondent Michael D. Rostoker be disbarred from the practice of law in the District of Columbia. 2 In the moral turpitude matter, Respondent asserted that he and the underage woman involved in his offenses were married in a public ceremony in Vietnam in 1999, with the permission of [the woman s] parents. Respondent s Answer to Bar Counsel Brief at 2. He contended that marriage (at least in the District of Columbia) is a defense to charges alleging the sexual conduct prohibited by the statutes under which he was convicted and that a marriage or good faith belief of marriage... should be presentable to the [hearing] committee to negate a finding of moral turpitude. Id. at 2-3 (emphasis added). Respondent, by tendering his resignation, waived any right he had to present a similar argument in the Massachusetts proceeding, and he has filed no response to the Statement of Bar Counsel in the reciprocal matter. Accordingly, we do not consider either the legal or factual merits of that argument. See In re Holdmann, 834 A.2d 887, 889 (D.C. 2003); In re Goldsborough, 654 A.2d 1285, 1287 (D.C. 1995) (by failing to respond in a reciprocal proceeding, the respondent effectively defaulted ). 7

8 The Board further recommends that the proceedings based on Respondent s criminal conviction be dismissed as moot. See In re Barlow, 748 A.2d 415 (D.C. 2000) (per curiam); In re Novick, 619 A.2d 514 (D.C. 2003) (per curiam). The Board further recommends that Respondent s attention be directed to the requirements of D.C. Bar R. XI, 14(g), and their effect on his eligibility for reinstatement. See D.C. Bar. R. XI, 16(c). BOARD ON PROFESSIONAL RESPONSIBILITY Dated: November 30, 2005 By: James P. Mercurio All members of the Board concur in this Report and Recommendation, except Mr. Klein and Ms. Helfrich, who did not participate. 8