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: : : RONALD ALLEN BROWN, : : Respondent. : D.C. App. No. 07-BG-81 : Bar Docket No : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : (Administratively Suspended: 9/30/2004) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This is a reciprocal discipline matter based on an order of the Court of Appeals of Maryland (the Maryland Court ) disbarring Respondent Ronald Allen Brown. The Board on Professional Responsibility (the Board ) recommends that the District of Columbia Court of Appeals (the Court ) impose identical reciprocal discipline of disbarment to be effective immediately, but 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 Respondent was admitted to the District of Columbia Bar by motion on March 3, 1983, but has been administratively suspended since September 30, 2004, for nonpayment of Bar dues. Respondent also was admitted to practice in Maryland and Pennsylvania. On February 22, 2007, Bar Counsel filed with the Court a certified copy of an April 9, 2004 order of the Maryland Court disbarring Respondent and a July 12, 2005

2 reciprocal order of disbarment by the Supreme Court of Pennsylvania. Respondent failed to report the discipline to Bar Counsel as required by D.C. Bar R. XI, 11(b). Bar Counsel learned of the Maryland discipline through a referral from the Maryland Court in April 2004, and of the Pennsylvania discipline from the ABA National Lawyer Regulatory Data Bank in December On March 13, 2007, the Court issued an Order suspending Respondent on an interim basis pursuant to D.C. Bar R. XI, 11(d), and referring the Maryland and Pennsylvania orders of disbarment to the Board. The Court directed the Board either to (i) recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline, or (ii) determine whether the Board should proceed de novo. Order, In re Brown, No. 07-BG-81 (D.C. Mar. 13, 2007). On April 12, 2007, Bar Counsel filed a statement with the Board recommending identical reciprocal discipline of disbarment, based on the Maryland order disbarring Respondent. 2 Respondent has not filed a statement regarding his position on reciprocal discipline or otherwise participated in this proceeding. 3 1 Bar Counsel explains that it did not promptly report the Maryland Court s disbarment order because based on an initial check of the District of Columbia Bar membership database, it mistakenly concluded that Respondent was not a District of Columbia Bar member. Bar Counsel discovered the error after it learned of Respondent s Pennsylvania disbarment from the ABA National Lawyer Regulatory Data Bank in December See Statement of Bar Counsel at 4 n.4. 2 It is appropriate to base reciprocal discipline on the Maryland Court s order of disbarment because it was imposed in an original matter, and not on the Pennsylvania Court s reciprocal disbarment order, which was based on the Maryland discipline. See In re Harris-Smith, 871 A.2d 1183, 1184 n.3 (D.C. 2005) (per curiam). 3 Notices of this reciprocal discipline proceeding mailed by Bar Counsel and the Board to Respondent s address of record with the District of Columbia Bar were returned as undelivered to the Office of Bar Counsel but not returned to the Board. Notices subsequently mailed to an address identified by Bar Counsel s investigator were not returned. Given the attempts to contact Respondent and his failure to inform the Bar of his new address as required by D.C. Bar R. II, 2(1), we find notice to Respondent of these proceedings adequate. See In re Powell, 860 A.2d 836, 837 (D.C. 2004) (per curiam). 2

3 II. THE MARYLAND PROCEEDINGS The Maryland Court s order of disbarment was based on an order of default entered after Respondent failed to answer charges of misconduct set forth in a Petition for Disciplinary or Remedial Action (the Petition ) filed by the Attorney Grievance Commission of Maryland, through Maryland Bar Counsel. Although served with the Petition and the Maryland Court s order referring the case for a hearing, Respondent did not file a response. Consequently, an Order of Default was entered and a hearing was set before the Circuit Court for Charles County (the Circuit Court ). Respondent did not appear or participate at the hearing, or move to vacate the default. The Circuit Court made the following findings of fact, on which the Maryland Court s order of disbarment is based. Respondent settled a client s personal injury matter in July 2002 for $4,500. Thereafter, on July 25, 2002, Respondent deposited the client s settlement check into his attorney trust account at Sun Trust Bank, and on July 30, 2002, wrote a check on that account in the amount of $4,500 made payable to his law office, leaving a balance of $ On August 20, 2002, Respondent wrote the client a check for $2,280, when he did not have sufficient funds in the trust account to cover the check. Sun Trust nonetheless honored the check and thereafter filed suit against Respondent and won a judgment in the amount of $2,866.56, plus interest of $74.92, costs of $20 and attorney's fees of $ Respondent opened his attorney trust account at Sun Trust on July 11, 2002, with a deposit of $ The only activity conducted on the account related to the $4,500 4 The Circuit Court found that Respondent wrote the $4,500 check payable to his law office on July 20, The Maryland Court noted that in response to a question from the bench, Respondent indicated that this date should be July 30, 2002, as the withdrawal of the deposited amount could not have occurred before it was deposited. Attorney Grievance Comm n v. Brown, 846 A.2d 428, 431 n.12 (Md. 2004). 3

4 settlement. Respondent did not have the account or the checks clearly designated as Attorney Trust Account, Attorney Escrow Account, or Clients Funds Account as required by Maryland Rule Respondent also failed to provide a written response to Maryland Bar Counsel s three inquiries regarding the overdraft on his attorney trust account and failed to appear for a scheduled interview with Maryland Bar Counsel's investigator. The Maryland Court found that based on this conduct, Respondent violated Maryland Rules of Professional Conduct ( MRPC ) 1.1 (competent representation), 1.15(a) and (b) (duty to safekeep property); 8.1(b) (failure to respond to a disciplinary authority), 8.4(b) (criminal conduct reflecting adversely on fitness), 8.4(c) (dishonesty, fraud, deceit or misrepresentation), 8.4(d) (conduct that seriously interferes with the administration of justice), Maryland Rules (proper designation of client trust accounts) and (prohibited trust account transactions), and the Business Occupations and Professions Article of the Maryland Code (trust account requirement) and (misuse of trust money). Respondent did not appear or participate in the disciplinary proceedings before the Circuit Court but filed exceptions in which he denied the findings of misconduct. The Attorney Grievance Commission did not file any exceptions to the Circuit Court s findings and conclusions and recommended disbarment. The Maryland Court accepted the Circuit Court s findings of fact and conclusions of law and disbarred Respondent. 4

5 III. RECIPROCAL DISCIPLINE There is a presumption in favor of imposing identical reciprocal discipline that may be rebutted by clear and convincing evidence that one or more of the five exceptions set out in D.C. Bar R. XI, 11(c) exists. D.C. Bar R. XI, 11(f) (2); see In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003) (citing In re Gardner, 650 A.2d 693, 695 (D.C. 1994); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)). 5 When a respondent fails to contest the imposition of identical reciprocal discipline, however, 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)). The imposition of reciprocal discipline when a respondent fails to object should be close to automatic, with minimum review by both the Board and this Court. In re Drager, 846 A.2d 992, 993 (D.C. 2004) (per curiam) (citing In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (per curiam)). In accordance with our limited role, we have examined the record and find nothing that rises to the level of an obvious miscarriage of justice. First, the Board finds that Respondent was not denied due process. Respondent had notice of the Maryland disciplinary proceeding. He was served with the Petition for Remedial or Disciplinary Action and the Maryland Court s order referring the case for a 5 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 an 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 hearing, and he arranged to meet with Maryland Bar Counsel s investigator. He also filed exceptions to the Circuit Court s findings, which were considered by the Maryland Court before it disbarred him. Second, although a default was entered against Respondent, the opinion of the Maryland Court was based on ample evidence to support the Circuit Court s findings of fact and conclusions. Brown, 846 A.2d at 432; see, e.g., In re Zackey, 838 A.2d 313, 315 n.2 (D.C. 2003) (per curiam) (attached Board Report) (reciprocal discipline based on default where hearing officer conducted ex parte evidentiary hearing); In re Ain, 837 A.2d 908, 909 (D.C. 2003) (per curiam) (reciprocal discipline based on default where full fact finding hearing held in foreign jurisdiction); see also In re Dobbyn, Bar Docket No (BPR May 15, 2007) (discussing imposition of reciprocal discipline based on defaults). Under these circumstances, we can find no failure of proof that would militate against the imposition of reciprocal discipline. There also is no doubt that Respondent s conduct, which included misappropriation, violated the District of Columbia Rules of Professional Conduct. 6 Although the Maryland Court did not explicitly characterize the misappropriation as intentional or reckless, the Maryland record supports that conclusion. The Maryland Court s findings show that Respondent deposited a $4,500 settlement check into a newly opened trust account containing a balance of only $105.44, that five days later he wrote a check to his office for $4,500, and that the settlement check was the only deposit that he ever made into the account. These findings are a sufficient basis to impose identical 6 Neither Maryland Rules and , nor the Maryland Code have District of Columbia counterparts; however, that does not bar the imposition of reciprocal discipline where the remaining misconduct provides an adequate basis for the imposition of reciprocal discipline. See, e.g., In re Youmans, 588 A.2d 718, 719 (D.C. 1991) (per curiam). 6

7 reciprocal discipline of disbarment. See in re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). IV. CONCLUSION We recommend that the Court impose identical reciprocal discipline of disbarment from the practice of law in the District of Columbia. Respondent's disbarment should run for purposes of reinstatement from the time he files the affidavit required byd.c. Bar R. XI, 5 14(g). In re Slosberg, 650 A.2d 1329,1331 (D.C. 1994)..BOARD ON PROFESSIONAL RESPONSIBILITY ~kan S. Kapp All members of the Board concur in this Report and Recommendation except Ms. Jefiey, who d~d not participate.