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: : : JOEL STEINBERG, : Bar Docket No : Respondent. : REPORT AND RECOMMENDATION OF THE BOARD OF PROFESSIONAL RESPONSIBILITY Respondent is a member of District of Columbia Bar, having been admitted by motion on November 11, He was also a member of the Bar in the Commonwealth of Virginia. On November 21, 2001, by letter to the Virginia State Bar Disciplinary Board (the Virginia Board ), Respondent surrendered his license to practice law in Virginia in order to resolve a disciplinary matter then pending against him in Virginia. That matter involved allegations of misappropriation of client funds, failure to pay over client funds in a timely manner as ordered by a bankruptcy court, failure to maintain proper records of client funds, and neglect of client matters. On November 30, 2001, the Virginia Board accepted Respondent s resignation and ordered his license to practice law in Virginia revoked effective that day. 1 1 The Virginia State Bar Disciplinary Board, by delegation of authority from the Virginia Supreme Court, has authority to suspend or revoke an attorney s license and therefore qualifies as a disciplining court as that term is defined in Section 11(a) of Rule XI of the District of Columbia Rules Governing the Bar ( Rule XI ). See Va. Sup. Ct. R. Pt. 6, IV, para. 13(I)(2)(f)(2). The District of Columbia Court of Appeals has consistently treated the Virginia Bar Committees as a disciplining court for purposes of Rule XI, 11. See, e.g, In re Koczela, 773 A.2d 395 (D.C. 2001); In re Webb, 766 A.2d. 564 (D.C. 2001); In re Phillips, 766 A.2d 47 (D.C. 2001); In re Hanchey, 761 A.2d 279 (D.C. 2000); In re Dean, 704 A.2d 302, 303 (D.C. 1998), In re Sheridan, 680 A.2d 439, 440 (D.C. 1996); In re Otchere, 677 A.2d 1040 (D.C. 1996); In re Diday, 631 A.2d 901 (D.C. 1993); In re Moorcones, 619 A.2d 983 (D.C. 1993). But see In re Shelnutt, 694 A.2d 89, 90 (D.C. 1997) (Schwelb, J., dissenting).

2 Bar Counsel initiated this reciprocal discipline proceeding by reporting the Virginia Board s revocation order to the District of Columbia Court of Appeals (the Court ). On February 13, 2002, the Court temporarily suspended Respondent from the practice of law pursuant to Rule XI, 11(d) pending final disposition of this proceeding. The Court further directed the District of Columbia Board on Professional Responsibility (the Board ) to recommend whether identical, greater, or lesser discipline should be imposed as reciprocal discipline or whether to proceed de novo. For the reasons that follow, the Board recommends that the identical discipline of license revocation with the right to apply for reinstatement in five years be imposed. I. Procedural Background At the time that Respondent tendered the resignation of his license to practice law in Virginia, the Virginia State Bar had filed a Complaint and Petition for the Appointment of a Receiver and Request for an Injunction (the Virginia Petition ) in the Circuit Court of the City of Alexandria. The Virginia Petition cited eight bar complaints pending before the Virginia Board, three written complaints under active investigation and a number of telephone complaints. The written complaints described in the Virginia Petition alleged, among other charges, (i) that Respondent took client trust funds which did not belong to him; (ii) that Respondent failed to pay over funds in a timely manner as ordered by the bankruptcy court; (iii) that Respondent failed to keep proper records of client funds as required by the Virginia Code of Professional Responsibility and the Virginia Rules of Professional Conduct; and (iv) that Respondent neglected client matters. The telephone complaints involved various instances in which Respondent allegedly accepted payment from clients while neglecting those clients 2

3 matters, failed to answer telephone calls, and was locked out of his law offices for non-payment of rent. Under former Va. Sup. Ct. R. Pt. 6, IV, para. 13(I), Respondent admitted the truth of the allegations in the Virginia Petition by surrendering his license while the Virginia Petition was pending. 2 See, e.g., Webb, 766 A.2d at 565 (citing In re Brickle, 521 A.2d 271, 272 (D.C. 1987)) (noting that by Virginia statute, an attorney who resigns from the Bar while charges are pending against him is deemed to have admitted those charges ). We therefore adopt as true those allegations as the basis for the imposition of reciprocal discipline. II. Discussion Rule XI establishes a rebuttable presumption in favor of the imposition of identical reciprocal discipline. See In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Under Rule XI, 11(c), reciprocal discipline is to be imposed unless the attorney demonstrates by clear and convincing evidence that one of the exceptions set forth in that section applies. When the attorney fails to contest reciprocal discipline, however, the role of the Board is limited. The Court has stated, [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. In re Childress, No. 01-BG-1207, slip op. at 3 (D.C. Dec. 5, 2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)). Further, the Court has recently reiterated that in such circumstances, the imposition of identical discipline should be close to automatic, with minimum review by both the Board and this court. Id. (citing In re Cole, No. 01-BG-1209, slip 2 Since the surrender of Respondent s license, the applicable Virginia Rule has been amended to prohibit resignation in the face of pending disciplinary charges. Currently, when a Virginia attorney seeks to consent to revocation, he is required to file an affidavit with requirements corresponding to the affidavit of consent to disbarment in this jurisdiction. See Va. Sup. Ct. R. Pt. 6, IV para. 13(L); D.C. Bar. R. XI, 12. 3

4 op. at 2 n.3 (D.C. Nov. 7, 2002)). The Court has explained that [u]nderlying that principle is a general reluctance by the court to have the disciplinary law of the District of Columbia concerning both misconduct and sanctions developed in proceedings that are characterized by deference to another jurisdiction s judgment and also by the absence of that clear concreteness provided when a question emerges... for a decision from a clash of adversary argument. Id. (quoting In re Goldsborough, 654 A.2d 1285, n.5 (D.C. 1995)). In the instant case, Respondent has failed to make any effort to rebut the presumption of reciprocal discipline, thereby effectively default[ing] on this issue. Goldsborough, 654 A.2d at Moreover, a review of the record shows that none of the five exceptions set out in Rule XI, 11(c) applies. Specifically, Respondent was afforded due process; the voluntary tender of his license constituted an admission alleviating any infirmity of proof; identical discipline would not result in grave injustice; and the misconduct does not warrant substantially different discipline in this jurisdiction. Respondent s misconduct, including clear instances of misappropriation and neglect, also violates the following District of Columbia Rules of Professional Conduct ( Rules ): Rule 1.15(a) (safekeeping property and maintaining records), Rule 1.15(b) (promptly notifying and delivering entrusted funds), Rule 1.4 (communication) and Rule 1.3 (diligence and zeal). It is thus the basis for imposing reciprocal discipline in the District of Columbia. III. Sanction In Virginia, a respondent is not eligible to petition for reinstatement until at least five years following the revocation of a license to practice law. Va. Sup. Ct. R. Pt. 6, IV, para. 13(I) 4

5 (7)(b)(1). 3 Bar Counsel argues, based on the Virginia rule, that because this jurisdiction s sanction of disbarment also sets forth a five-year period before a respondent may petition for reinstatement, disbarment should be imposed as functionally equivalent reciprocal discipline. Bar Counsel s position, however, contravenes a long line of cases which have held that [a]lthough our rules regarding disciplinary sanctions do not include the sanction of revocation, when we are imposing reciprocal discipline, the court is required to impose discipline identical to that imposed by the other disciplining state. Webb, 766 A.2d at 565 (quoting Brickle, 521 A.2d at 272); Sheridan, 680 A.2d at 440 (same); Moorcones, 619 A.2d at 984 (same); see also Rule XI, 11(f)(2) ( [T]he Court shall impose the identical discipline [imposed in the foreign jurisdiction] unless the attorney demonstrates, or the Court finds... by clear and convincing evidence, that one or more of the [exceptions to reciprocal discipline] exists. ). The case law in this jurisdiction thus requires imposition of the identical disciplinary sanction to that imposed in Virginia - revocation unless such discipline would be substantially different from the discipline that would be imposed for similar misconduct in this jurisdiction. 4 See Koczela, 773 A.2d 395 (revocation based on license revocation in Virginia); Phillips, 766 A.2d 47 (same); Sheridan, 680 A.2d 439 (same); Otchere, 677 A.2d 1040 (same); Diday, 631 A.2d 901 (same); Moorcones, 619 A.2d 983 (same). 3 At the time of Respondent s resignation this provision was numbered Va. Sup. Ct. R. Pt. 6, IV, para. 13(J)(1). 4 The Board recently recommended imposition of the identical reciprocal discipline of revocation based on license revocation in Virginia in In re Laibstain, B.D.N (BPR Oct. 31, 2002), a reciprocal misappropriation case pending consideration by the Court on Bar Counsel s exception to the Board s recommended sanction. In Laibstain, the Board expressly noted that disbarment would have been the appropriate sanction had the case been considered as an original matter and that if it were writing on a blank slate, [it] would prefer to recommend the functionally equivalent District of Columbia sanction [of disbarment], thereby avoiding unnecessary expansion of the kinds of different sanctions imposed in our reciprocal discipline cases. Id. at 6 n.1. The Board reiterates that view here, but recommends the imposition of identical reciprocal discipline based on the long line of authority compelling such a result. 5

6 Based on the seriousness of Respondent s misconduct, which included misappropriation, and the number of other violations, the Board finds that revoking Respondent s license to practice law in the District of Columbia falls within the acceptable range of sanctions and furthers the interests of disciplinary system. See In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). IV. Conclusion The Board recommends that Respondent s license to practice law in the District of Columbia be revoked with the right to apply for reinstatement in five years. For reinstatement purposes, this sanction should be deemed to commence only when Respondent files the affidavit required by Rule XI, 14(g), which, to the Board s knowledge, has not yet been done. See In re Slosberg, 650 A.2d 1329 (D.C. 1994). BOARD ON PROFESSIONAL RESPONSIBILITY By: Roger A. Klein Dated: December 30, 2002 All members of the Board concur in this Report and Recommendation. 6