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: : : BURMAN A. BERGER, : : D.C. App. No. 05-BG-1054 Respondent. : Bar Docket Nos & : A 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 matter is before the Board on Professional Responsibility (the Board ) for consideration of one original case and one reciprocal case regarding Burman A. Berger ( Respondent ). In the original case, we consider a report and recommendation filed by Hearing Committee Nine (the Committee ) which found that Respondent failed to respond to an ethical complaint and recommended a suspension of 30 days with reinstatement conditioned upon full cooperation with Bar Counsel s investigation into the ethical complaint and completion of six hours of continuing legal education in ethics and professional responsibility. In the reciprocal case, the District of Columbia Court of Appeals (the Court ) directed the Board to recommend whether identical reciprocal discipline is warranted due to Respondent s disbarment by the Court of Appeals of Maryland ( the Maryland Court ) on September 20, The Board recommends the imposition of 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). The Board will dismiss the original case as moot.

2 I. BACKGROUND Respondent was admitted to the Bar of the Court on March 1, Respondent is also a member of the Bars of Maryland and Virginia. A. The Original Case On November 30, 2004, Bar Counsel filed with the Board a Specification of Charges and a Petition Instituting Formal Disciplinary Proceedings in the original case alleging that Respondent violated D.C. Rules of Professional Conduct 8.1(b) and 8.4(d), and D.C. Bar R. XI, 2(b)(3). These alleged violations arose from Respondent s failure to respond to Bar Counsel s requests for information regarding an ethical complaint and Respondent s failure to comply with the Board s order compelling a response to the ethical complaint. Bar Counsel Exhibit ( BX ) B. Respondent did not respond to the petition. The Committee held a preliminary hearing on March 8, Respondent did not attend. The Committee conducted a hearing in the case on March 22, Bar Counsel s Exhibits A through D and 1 through 13 were received in evidence. Transcript ( Tr. ) at 22. Bar Counsel called two witnesses to testify regarding the adequacy of notice. Respondent did not appear at the hearing. Bar Counsel filed Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction on April 13, Respondent did not file an opposition. On June 24, 2005, the Committee issued its Report and Recommendation finding that Respondent violated Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, 2(b)(3) and recommending that Respondent be suspended for 30 days with reinstatement conditioned upon full cooperation with Bar Counsel s investigation of the underlying ethical complaint and completion of six hours of continuing legal education in the areas of ethics and professional responsibility. Bar Counsel filed an exception to the Committee s Report and Recommendation on August 23, 2005, asserting that Respondent s 2

3 sanction should include reinstatement conditioned upon proof of fitness to practice law and his submission of substantive responses to Bar Counsel s inquiries. Because Respondent did not file a brief with the Board, Bar Counsel waived oral argument. Before the Board considered the original case, Bar Counsel filed a reciprocal case arising out of Respondent s disbarment by consent in the Maryland Court. Because we agree that the identical reciprocal discipline of disbarment is warranted, we do not further address the original case and dismiss it as moot. B. The Reciprocal Case On September 27, 2005, Bar Counsel filed with the Court a certified copy of a September 20, 2005 order of the Maryland Court disbarring Respondent by consent. On October 18, 2005, the Court issued an Order suspending Respondent on an interim basis pursuant to D.C. Bar R. XI, 11(d) and directing 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. In re Berger, No. 05-BG-1054, Order (D.C. Oct. 18, 2005). Bar Counsel filed a statement on November 17, 2005, recommending the imposition of the identical reciprocal discipline of disbarment. Bar Counsel sent a copy of this statement to Respondent s last known home address in Maryland. 1 Respondent did not file a statement regarding his position on reciprocal discipline and has not participated in these proceedings. 1 In the original case, Bar Counsel learned that Respondent s business address listed on his Bar records was wrong. Tr. at 21. Because District of Columbia attorneys are obligated to notify the Secretary of the Bar of any change of address within 30 days of such change, D.C. Bar R. II, 2(1), we find Bar Counsel s notice to Respondent of these proceedings at his listed home address to be adequate. 3

4 II. THE MARYLAND DISCIPLINARY PROCEEDINGS On September 12, 2005, the Attorney Grievance Commission of Maryland, together with Respondent and his counsel, filed a joint petition for disbarment by consent in the Maryland Court. The joint petition detailed the allegations in two cases of ethical violations filed in the Circuit Court for Montgomery County, Maryland. In the first case, Respondent was alleged to have failed to act with reasonable diligence and failed to keep his two clients reasonably informed about the status of their personal injury claims against the District of Columbia government. Respondent admitted that sufficient evidence could have been produced at a hearing to establish that he violated Maryland Rules of Professional Conduct ( MPRC ) Rules 1.3 and 1.4. In addition, Respondent failed to respond to Bar Counsel s demand for information regarding this ethical complaint in violation of MPRC 8.1(b). In the second case, Respondent was alleged to have failed to keep his client reasonably informed about the status of her legal dispute involving an unfinished home improvement project. Respondent admitted that sufficient evidence could have been produced at a hearing to establish that he violated MPRC 1.4. Further, Respondent also failed to respond to two other ethics complaints alleging lack of diligence and failure to communicate. Respondent s violations took place while he was subject to a Conditional Diversion Agreement and a Supplemental Conditional Diversion Agreement approved by the Attorney Grievance Commission of Maryland. Respondent was placed in the Conditional Diversion program in 2002 as the result of previous violations of MPRC 1.3, 1.4 and 8.1(b). Respondent admitted to the Maryland Court that he had engaged in further and similar professional misconduct while subject to the terms of the Conditional Diversion Agreement. 4

5 Respondent stated that his consent to disbarment was freely and voluntarily given, and that he understood the implications of consenting to disbarment. Respondent also consented to pay $ to reimburse the Attorney Grievance Commission of Maryland for costs incurred in its investigation. On September 20, 2005, the Maryland Court disbarred Respondent and ordered him to pay the Grievance Commission s costs. 2 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); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). 3 When Bar Counsel urges reciprocal discipline, and the respondent does not contest it, 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 identical discipline when the respondent fails to object 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). 2 Respondent was recently disbarred by the federal court in Maryland based upon his disbarment by the Maryland Court. In re Berger, Misc. No (D. Md. Dec. 16, 2005). 3 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 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. The record in this case discloses that while Respondent has not participated in these proceedings he was afforded notice and an opportunity to be heard. Bar Counsel and the Court sent Respondent multiple notices of the reciprocal action to his home address in North Potomac, Maryland. There is nothing in the record to suggest that any of these letters were returned undelivered. Moreover, the address used is the same as the address listed under Respondent s signature on the joint petition for disbarment by consent filed with the Maryland Court on September 12, Accordingly, we find Bar Counsel s notice to Respondent of these proceedings adequate. None of the exceptions to D.C. Bar R. XI, 11(c) apply here. Respondent voluntarily consented to the Maryland discipline. Respondent s sworn acknowledgement that sufficient evidence of misconduct could be established is adequate proof to sustain the charges against him. Because the Maryland Rules that Respondent was found to have violated are virtually identical to the District of Columbia counterparts, Respondent s misconduct in Maryland would constitute misconduct in this jurisdiction. Furthermore, the misconduct established in Maryland does not warrant substantially different discipline here. The Maryland Court had before it Respondent s admission to the misconduct charged in two separate ethics complaints at a time when Respondent was subject to a Conditional Diversion Agreement for prior misconduct. The Maryland Court properly considered Respondent s history of neglect, 4 The Maryland proceedings identify Respondent s address in Gaithersburg, while the mailings by Bar Counsel and the Court listed his address as North Potomac. The street address and the postal zip code are the same on both and the Board takes notice of the fact that parts of Gaithersburg have been re-named North Potomac. The notices in the original case were addressed to and personally served on Respondent at a new business address in Rockville, Maryland. Respondent did not respond to these notices either. Because Respondent has since been disbarred in Maryland, it is reasonable to expect mail sent to his home address is more likely to reach Respondent than mail addressed to a business address. 6

7 failure to communicate with clients, and disregard of disciplinary authorities. Given this history of serious ethical misconduct over three years, we find that disbarment could have been imposed for the same misconduct in this jurisdiction. See, e.g., In re Haupt, 444 A.2d 317 (D.C. 1982) (per curiarn) (disbarment warrinted for repeated neglect of numerous clients' cases and other ethical misconduct). Finally, there is no "disciplining court" issue presented here. Accordingly, it would not result in a grave injustice to impose the identical reciprocal discipline of disbarment. Childress, 811 A.2d at 807. IV. CONCLUSION We recommend that the Court impose identical reciprocal discipline on Respondent of disbarment. For purpose of reinstatement, Respondent's suspension should run from the time he files an affidavit that fully complies with D.C. Bar R. XI, 5 14(g). We Mher dismiss the original case as moot. BOARD ON PROFESSIONAL RESPONSIBILITY By: \ Martin R. Baach Chair All members of the Board concur in this Report and Recommendation, except Mr. KIein and Ms. Helfrich, who did not participate.