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: : : HOWARD R. SHMUCKLER, : : 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 RESPONSIBLITY These matters are before the Board on Professional Responsibility (the Board ) on two referrals from the District of Columbia Court of Appeals (the Court ). The first referral is a reciprocal matter predicated on an order of the Supreme Court of California, entered on August 8, 1996, in which the court accepted Respondent s resignation as a member of the state bar while charges were pending. Bar Counsel maintains that reciprocal discipline in the form of disbarment should be recommended. The second matter referred by the Court concerns a criminal conviction of Respondent, entered on March 27, 1997 by the United States District Court for the Central District of California, on Respondent s guilty plea to two counts of bankruptcy fraud in violation of 18 U.S.C. 152(1) and (2). Bar Counsel, relying upon the holding in In re Standard, 788 A.2d 154, 154 (D.C. 2001) (per curiam) that federal bankruptcy fraud is a crime that inherently involves moral turpitude, urges that Respondent be disbarred under D.C. Code (a).

2 We agree that the Court s holding in Standard mandates Respondent s disbarment under D.C. Code (a), and we thus recommend that the Court dismiss the reciprocal case as moot. I. THE FACTS Respondent was admitted to the Bar of the Court, by motion, on December 23, 1985, and assigned Bar Registration Number He also was admitted in California. Between 1987 and 2004, he was administratively suspended by the District of Columbia Bar for non-payment of bar dues. Affidavit of Howard Shmuckler at 4k (Record Index No. 4). A. Prior D.C. Proceedings in the Reciprocal Matter (Bar Docket No ) Bar Counsel, who first learned of Respondent s [August 1996] California disciplinary resignation in the course of another investigation, notified the Court of that resignation and submitted a draft order to initiate a District of Columbia reciprocal proceeding on May 8, Statement of Bar Counsel at 3-4 (Record Index No. 11). Before the Court acted on Bar Counsel s notice, Respondent, on May 21, 2007, took the unusual step of filing an opposition to Bar Counsel s proposed referral order, but the Court nonetheless entered an order on June 11, 2007, referring the matter to the Board with directions that (1) Bar Counsel inform the Board on Professional Responsibility of its position regarding reciprocal discipline, and (2) the Board recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline. See Order, In re Shmuckler, No. 07-BG-389 (D.C. June 11, 2007) (Record Index No. 7). In accordance with D.C. Bar R. XI, 11(d), the Court s order suspended Respondent from the practice of law pending final disposition of this proceeding, and the order also 2

3 included the customary provision drawing Respondent s attention to the requirement of Rule XI, and to the provisions of Rule XI, 16(c) dealing with the timing of the eligibility for reinstatement as related to compliance with Rule XI, 14, including the filing of the required affidavit. Id. Bar Counsel, on July 18, 2007, filed with the Board a Statement of Bar Counsel to inform the Board of its position that disbarment is required in this matter as reciprocal discipline based upon Respondent s resignation from the California Bar. Statement of Bar Counsel at 1 (Record Index No. 11). Since by the time Bar Counsel had filed that statement, it had notified the Court of Respondent s criminal conviction, and therefore also contended in that statement that disbarment is required under D.C. Code (a), because Respondent s conviction is for crimes involving moral turpitude. Respondent addressed both positions advanced by Bar Counsel in a document that he styled Opposition to Bar Counsel s Recommendation of Reciprocal Discipline and Affirmative Defenses and filed both with the Court and the Board on August 24, B. Prior D.C. Proceedings on Respondent s Conviction (Bar Docket No ) Respondent did not file the court record of his guilty plea with the Court or the Board, as D.C. Bar R. XI, 10(a) requires, and Bar Counsel did not learn of Respondent s March 1997 criminal conviction until ten years had passed. Moreover, a delay in obtaining a certified copy of the case from the California federal court resulted in Bar Counsel s not filing the record with the Court until July 13, Along with the record, Bar Counsel filed a draft order in the form customarily entered by the Court in a 1 Respondent s August 24, 2007 filing is referred to hereinafter as Respondent s Opposition. (Record Index No. 18). 3

4 disciplinary proceeding based upon a criminal conviction, which directed the Board to institute a formal proceeding for determination of the nature of the offenses for the purpose [of] determining whether or not the crime involves moral turpitude within the meaning of D.C. Code (a)(2001). Id. at 4. n. 2 : see Letter of Elizabeth A. Herman, Deputy Bar Counsel to the Court, dated July 13, 2007, and enclosed draft order (Record Index No. 9). Twelve days later, Respondent, on July 25, 2007, filed with the Court a Motion for an Extension of Time, in which he contended that Bar Counsel s request for a proceeding based upon his bankruptcy fraud conviction relied upon an incomplete record and requested time to obtain [a] complete set of documents. Respondent s Motion at 2 (Record Index No. 12). Respondent told the Court that the complete set of documents would show the following curious circumstances: Id. Respondent may have pled guilty to a charge as a matter of courtesy to the California Criminal Bar and Governor of the State of California and Respondent s attorney, Mark Werksman, who on the week prior to Respondent s trial on the merits was appointed by the Governor of California and the California Criminal Bar to represent the famed and noted, Charles Rathbun, the Oakland Cheerleader/model mass murderer. As an accommodation for Werksman to leave Respondent, Respondent was asked to plead guilty, without presence of counsel at the time of the plea, under certain assurances which did not materialize. Werksman then went on to defend the murderer who was sentenced to die in the electric chair, no appeal was taken for the reason that he received excellent representation. One family s victim received justice; Respondent received a thank you. Although Bar Counsel opposed Respondent s motion for an extension of time (see Bar Counsel s Opposition (Record Index No. 14)), the Court granted the motion on August 16, 2007 and directed that any response to Bar Counsel s proposed order be filed on or before August 24, See Order, In re Shmuckler, No. 07-BG-702 (D.C. Aug. 4

5 16, 2007) (Record Index No. 17). On August 24, 2007, Respondent filed an opposition that addressed both grounds asserted by Bar Counsel in its statement filed on July 18, 2007 as requiring that Respondent be disbarred. See Respondent s Opposition (Record Index No 18). Regarding his conviction, Respondent repeated, almost verbatim, the story involving the California Bar, the Governor and the trial of a mass murderer that he related in his motion for an extension of time, and claimed, in essence, that he had not committed the offenses to which he had pled guilty. Id. at 3-4. On October 25, 2007, Respondent filed with the Court a Motion for Termination of Suspension, requesting that the interim suspension ordered by the Court in his reciprocal proceeding be terminated and that he be reinstated as a member in good standing in the District of Columbia Bar Association. Respondent s Motion at 2 (Record Index No. 21). In support of that motion, Respondent repeated, in summary, the arguments advanced in his August 24, 2007 filing. The Court, on November 16, 2007, denied that motion (Order, In re Shmuckler, No. 07-BG-389 (D.C. Nov. 16, 2007) (Record Index No. 24)) and, in a separate order, directed the Board to institute a formal proceeding for determination of the nature of the offenses for the purpose of determining whether or not the crime involves moral turpitude within the meaning of D.C. Code (a)(2001). See Order, In re Shmuckler, No. 07-BG-702 (D.C. Nov. 8, 2007) (Record Index No. 23). On December 26, 2007, the Board s Executive Attorney sent Respondent a letter enclosing a copy of the Court s November 8 order directing a proceeding on the nature of the crimes for which he was convicted. In her letter, she advised Respondent as follows: 5

6 Bar Counsel filed a brief with the Board on the issue of moral turpitude per se on July 18, 2007, before the Court issued its order of November 8, 2007, referring the matter of the Board and before the Board requested the parties to submit briefs on the moral turpitude issue. See Board Rule Bar Counsel is thus not requested to further brief the moral turpitude issue. A brief stating your position may be filed within twenty days of the date of this letter. Letter, from Board Executive Attorney to Respondent, Dec. 26, 2007 at 2 (Record Index No. 28). Respondent has not filed anything with the Board in the more than seven months since that letter. C. The Misconduct in Question 1. The Reciprocal Matter (Bar Docket No ) The disciplinary charges pending against Respondent at the time of his resignation from the California Bar are stated in the Notice of Disciplinary Charges that was dismissed in connection with his resignation from the California Bar. See Statement of Bar Counsel, Exhibit D at 3 and Exhibit E at 2 (Record Index No. 11). The allegations were that, as in-house counsel for Carnation Corporation, Respondent was paid a total of $1,931, in referral fees by an engineering consultant retained to provide investigative and remediation services for Carnation. Those fees are alleged to have been paid without obtaining the written consent of all parties concerned, and Respondent is alleged to have failed to avoid the representation of the conflicting interests of [the consulting firm] and Carnation. Statement of Bar Counsel, Exhibit E at 2 (Record Index No. 11). The alleged conduct is said to have violated former California Rule of Professional Conduct 5-102(B) and California Business and Professions Code, Section 6

7 6106. Id The Criminal Conviction Matter (Bar Docket No ) Respondent, on July 26, 1996, appeared before the United States District Court for the Central District of California and pleaded guilty to two counts of bankruptcy fraud in violation of 18 U.S.C. 152(1) and (2), which provide as follows: A person who (1) knowingly and fraudulently conceals from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor; (2) knowingly and fraudulently makes a false oath or account in or in relation to any case under title Respondent s Conduct Since Resigning from the California Bar Respondent, on June 24, 2002, almost six years after the California court accepted his resignation from the California Bar, filed a Petition for Reinstatement seeking readmission to membership in the State Bar. Respondent s Opposition, Exhibit 4 at 1 (Record Index No. 5). The California State Bar Court denied that petition on November 5, 2000 in accordance with California statutory provisions that require, as conditions of reinstatement, attorneys who resign with disciplinary charges pending to (1) pay any disciplinary costs assessed against him and (2) to reimburse the Client Security Fund for monies that the fund has paid out to third parties as a result of the attorney s conduct. Id. at 1; see California Bus. & Prof. Code and (c). Respondent had not 2 As Bar Counsel points out, at the time of his resignation from the California Bar, Respondent had entered a guilty plea to two counts of bankruptcy fraud and was waiting to be sentenced from those offenses. See Statement of Bar Counsel, Exhibit B (guilty plea tendered on July 26, 1996) and Exhibit D (Record Index No. 11). There is no indication in the record, however, that his plea or the misconduct charged in the criminal case became part of the California disciplinary matter. 7

8 fulfilled either condition. He owed disciplinary costs amounting to $1, and Client Security Fund reimbursements amounting to $76, The court s order expressly provided that Respondent may file a subsequent petition for reinstatement at such time as he is able to demonstrate his ability to complete the payment of his disciplinary costs and [Client Security Fund] reimbursement. Id. at 4. The record does not suggest that he has done so. Finally, Respondent states in his opposition that [h]aving married in 2001 and relocating to [his] spouse s home town (Metropolitan D.C.) [he] made inquiry to the District of Columbia Bar as to the status of his membership. Respondent s Opposition, at 3 (Record Index No. 5). He was informed he had been placed on administrative suspension as of November 30, Id. Subsequently, on July 9, 2004, Respondent complied with the requirements for reinstatement and was so reinstated. Id.; see also Respondent s Opposition, Exhibit 6 (Record Index No. 5). He then engaged in the practice of law in the District of Columbia from July 9, 2004 until [May/June 2007] without, as Bar Counsel points out, bringing either his 1996 resignation from the California Bar with charges pending or his 1997 criminal conviction to the attention of the Court and the Board, as D.C. Bar R. XI, 11(b) and 10(a) require. Id. 3 3 Respondent s obligation to report his resignation to District of Columbia Bar Counsel is found in D.C. Bar R. XI, 11(b), which provides that an attorney admitted to practice in the District of Columbia must inform Bar Counsel of his being subjected to professional disciplinary action by a disciplining court outside the District of Columbia. In In re Richardson, 692 A.2d 427, 431 (D.C. 1997), cert. denied, 522 U.S (1998) and subsequent decisions, the Court has held that another jurisdiction s acceptance of [an attorney s] resignation while a disciplinary proceeding was pending against him constituted discipline.... See, e.g., In re Day, 717 A.2d 883, 888 (D.C. 1998); In re Laibstain, 841 A.2d 1259 (D.C. 2004) (per curiam); In re Brown, 797 A.2d 1232 (D.C. 2002) (per curiam). 8

9 II. ANALYSIS 1. The Criminal Conviction Matter (Bar Docket No ) The sole issue before us with respect to the proceeding based on Respondent s criminal conviction is whether Respondent has been convicted of a crime that, per se, involves moral turpitude. That issue focuses on the type of crime committed rather than on the factual context surrounding the actual commission of the offense. In re Colson, 412 A.2d 1160, 1164 (D.C. 1979) (en banc). At this stage, we consider only the essential elements of the crimes of which the respondent was convicted and give no consideration to evidence regarding the particulars of the respondent s actual conduct. In this matter, Respondent was convicted of two counts of bankruptcy fraud in violation of 18 U.S.C. 152(1) and (2), crimes that the Court has held inherently involve[] moral turpitude. Standard, 788 A.2d at 154; see also In re Sugarman, 677 A.2d 1049, 1050 (D.C. 1996) (per curiam). In Colson, the Court explained as follows: [a] distinction must be drawn here between offenses which manifestly involve moral turpitude by virtue of their underlying elements, and those which do not. An attorney is subject to disbarment under the statute for his conviction of a crime involving moral turpitude, not for his commission of an act involving moral turpitude. The threshold focus of the statute, then, is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense. The Board, therefore, must make an initial determination as to whether the attorney's crime inherently involves moral turpitude. If the Board decides that it does, that is the end of the inquiry; the Board must recommend disbarment. 412 A.2d 1160, 1164 (D.C. 1979) (emphasis added). Accordingly, since the Court in Standard has held that the crimes for which Respondent was convicted inherently involve[] moral turpitude, we recommend that, 9

10 under D.C. Code (a), Respondent must be disbarred The Reciprocal Discipline Matter (Bar Docket No ) Because disbarment is required under D.C. Code (a), it is not necessary to address the merits of the reciprocal proceeding based on Respondent's resignation from the California Bar. Accordingly, we recommend that the Court dismiss that proceeding as moot. See e.g., In re LefJler, 940 A. 2d 105 (D.C. 2007) (per curiam). III. RECOMMENDATION The Board recommends that, in accordance with D.C. Code (a), Respondent, Howard R. Shmuckler, be disbarred from the practice of law in the District of Columbia. For purposes of reinstatement, the period of Respondent's disbarment should be deemed to commence on the day Respondent files an affidavit in compliance with D.C. Bar. R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, (D.C. 1994). BOARD ON PROFESSIONAL RESPONSIBILITY Dated: ~dul BY:~~ 7"- James P. Mercurio All members ofthe Board concur in this Report and Recommendation. Respondent's opposition, in any event, avails him not at all. The essence ofhis position is that he did not commit the crimes to which he pled guilty. He asserts that his indictment was based upon his brother's false statement under oath. Respondent's Opposition at 4 (Record Index No. 18). Respondent pleaded guilty to the charge and a conviction was entered on his plea. The record does not suggest that his plea was ever withdrawn or that his conviction was set aside. Respondent's assertion of innocence is nothing more than an attempt to re-litigate a closed criminal matter. 10