DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : ROBERT M. SILVERMAN : Bar Docket No. 145-02 D.C. Bar No. 162610, : : Respondent. : ORDER OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This reciprocal discipline matter comes before the Board on Professional Responsibility (the Board ) as a result of discipline a public reproval imposed upon Robert M. Silverman ( Respondent ) by the Hearing Department of the California State Bar Court (the California Bar Court ) on January 17, 2002. Bar Counsel and Respondent both recommend the imposition of functionally equivalent reciprocal discipline and argue that the functional equivalent to a public reproval by the California Bar Court is a Board reprimand. We agree and hereby issue this order of reprimand on Respondent. I. BACKGROUND Respondent was admitted to the District of Columbia Bar on January 26, 1973. Statement of Bar Counsel, Attachment A. During the period of misconduct in question, Respondent was also a member of the California Bar, having been admitted in 1980. Id., Attachment B. On January 17, 2002, the California Bar Court accepted a stipulation signed by Respondent, his counsel, and the California Bar Deputy Trial Counsel resolving disciplinary charges filed against Respondent. Statement of Bar Counsel, Attachment B ( Stipulation ). As a result, Respondent received a public reproval from the California Bar Court. Id. Bar Counsel

reported the order of public reproval to the District of Columbia Court of Appeals ( Court ). The Court issued an Order, pursuant to D.C. Bar R. XI, 11(d), for Respondent to show cause why identical discipline should not be imposed and directing the Board to recommend promptly thereafter to this Court whether identical, greater, or lesser discipline should be imposed as reciprocal discipline, or whether the Board, instead, elects to proceed de novo. In re Silverman, No. 03-BG-933 (D.C. Aug. 26, 2003). In a statement filed on October 16, 2003, Bar Counsel recommended the imposition of reciprocal discipline and argued that functionally equivalent discipline was a public censure by the Court. Statement of Bar Counsel, at 13. Respondent agreed with the imposition of reciprocal discipline, but argued that the functional equivalent to a public reproval by the California Bar Court was a Board reprimand. In reply, Bar Counsel noted that she does not object to a Board reprimand in this matter as reciprocal discipline. Reply of Bar Counsel, at 3. We agree that a Board reprimand is functionally equivalent reciprocal discipline in this matter. II. THE CALIFORNIA PROCEEDING The California proceeding involved Respondent s representation of David Halcrow, a certified public accountant, regarding a federal investigation into alleged securities fraud involving some of Halcrow s accounting clients. Stipulation, at 6, 1. Respondent had been engaged previously to defend Halcrow in a civil lawsuit in which some of the same clients of Halcrow s were co-defendants. Id. Respondent and Halcrow had worked together on other litigation and Halcrow had extensive knowledge of litigation and business practices. Id. 2. When Respondent was retained in connection with the federal investigation, there was no fee agreement for this specific representation. Id. The California Bar Trial Counsel alleged that Respondent received advanced fees of $45,000 to represent Halcrow in the federal investigation. 2

Statement of Bar Counsel, Attachment C ( Notice of Disciplinary Charges ), at 2. Respondent denied this allegation. Statement of Bar Counsel, Attachment D, at 2. Respondent provided his last actual legal service to Halcrow in connection with the federal investigation on February 4, 1993, but remained on call for further services until the last of the federal investigations was closed on March 11, 1996, after the death of the primary target. Stipulation, at 6, 4-5. In a letter dated May 20, 1996, Halcrow requested that Respondent provide him an accounting and a refund of unearned fees. Id., at 7, 7. Respondent replied in a letter dated May 24, 1996, that he had earned all that he had been paid. Id. Respondent did not provide an accounting. Id. Halcrow then complained to the California State Bar about Respondent s failure to account for fees and provide a refund. Id. 9. Respondent received a letter from the California State Bar dated November 14, 1997, requesting written responses to Halcrow s allegations. Id. 10. In responding to the [California] State Bar inquiry, Respondent was grossly negligent in failing to review his files and identifying the tasks he performed for Halcrow which resulted in his making two material responses to the State Bar which were untrue concerning services he performed for Halcrow. Id. 11. 1 The Stipulation filed with the California Bar Court contained two legal conclusions. First, Respondent willfully violated Rule 4-100(B)(3) of the California Rules of Professional Conduct by failing to provide an accounting as requested by his client. Stipulation, at 7. Second, Respondent s gross negligence in responding to the California State Bar inquiry violated California Business and Professions Code section 6106 and constituted moral 1 In the Notice of Disciplinary Charges filed in the California Bar Court, Respondent was alleged to have denied having represented Halcrow in the federal matters and further denied having ever received any funds from Halcrow in his reply to the State Bar s notice of complaints. See Statement of Bar Counsel, Attachment C, at 5. Respondent denied these allegations. Id., Attachment D, at 2. 3

turpitude under state case law. Id. The Stipulation also noted three mitigating factors: (1) no prior discipline in 21 years as a member of the California State Bar; (2) a delay of nearly five years in commencing the disciplinary proceedings that prejudiced Respondent s ability to recall events; and (3) a lack of complaints to the State Bar concerning Respondent since Halcrow s complaint in 1996. Id., at 7-8. The California Bar Court issued a public reproval. 2 III. RECIPROCAL DISCIPLINE There is a presumption in favor of imposing identical reciprocal discipline that may be rebutted by the establishment, through clear and convincing evidence, of one or more of the five exceptions set out in D.C. Bar R. XI, 11(c). D.C. Bar R. XI, 11(f); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). 3 When, as here, respondent does not contest reciprocal discipline, 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). The rationale behind this expedited review of 2 The pertinent California rules are attached as Exhibits B and D to the Statement of Respondent and are also appended hereto for the convenience of the Court and others reviewing this Report. 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. 4

uncontested reciprocal discipline is a general reluctance by the court to have the disciplinary law of the District of Columbia... developed in proceedings that are characterized by deference to another jurisdiction s judgment and also by the absence of... adversary argument. Childress, 811 A.2d at 807 (quoting In re Goldsborough, 654 A.2d 1285, 1287 n.5 (D.C. 1995)). Respondent, represented by counsel in these proceedings, does not oppose the imposition of functionally equivalent reciprocal discipline. Respondent and Bar Counsel agree that a Board reprimand is functionally equivalent discipline. In accordance with our limited role in such situations, we have examined the record and find nothing that rises to the level of an obvious miscarriage of justice. Due to the stipulated resolution of the California proceedings, the record is scant, but, nonetheless, is sufficient to impose identical reciprocal discipline. Respondent participated in the California proceedings with the assistance of counsel. The facts to which Respondent stipulated is sufficient proof of misconduct to impose discipline. A. Disciplining Court Despite the straightforward nature of this uncontested reciprocal matter, we again confront an issue that continues to confound this Board whether Respondent was sanctioned by a disciplining court as defined by Rule XI, 11(a). Bar Counsel contends that the California Bar Court is a disciplining court under Rule XI, 11(a). Statement of Bar Counsel, at 10 n.11. Respondent does not disagree. See Statement of Respondent. Despite the parties agreement, the disciplining court issue is jurisdictional. The parties cannot waive or consent to the satisfaction of the disciplining court requirement of Rule XI, 11. Accordingly, we will describe the California Rules of Court and then assess whether they meet the standard established by Section 11(a) as interpreted by earlier decisions of this Board. 5

1. California Disciplinary System The California Supreme Court is responsible for the adjudication of disciplinary matters involving California attorneys. In the late 1980 s, as part of a major reform of the state lawyers disciplinary system, the State Bar Court was created. It is staffed by full-time judges appointed by the Supreme Court. Its authority to act is based upon a delegation from the Supreme Court as set forth in Rules adopted by the California Supreme Court. See Calif. Ct. R. 950 et seq. The California State Bar Court has authority to issue public and private reprovals. Where more severe sanctions are required, such as suspension or disbarment, the State Bar Court renders written findings of fact and conclusions of law with a recommendation for discipline which are submitted to the California Supreme Court. In our review of the Rules governing the California State Bar Court we noted that when a lawyer is convicted of a crime, the State Bar Court has authority to issue an interim suspension. Calif. Ct. R. 951(a). Nonetheless, we analyze the disciplining court issue before us treating the California State Bar Court as an agency that lacks the power to suspend or disbar. 2. Is the California State Bar Court a Disciplining Court? Rule XI, Section 11(b) presumes that our reciprocal discipline process begins when a member of the D.C. Bar has been disciplined by another disciplining court. Section 11(a) of the Rule defines a disciplining court as: (i) any federal court; (ii) the highest court of any state, territory or possession of the United States; and (iii) any other agency or tribunal with authority to disbar or suspend an attorney from the practice of law.... The Board addressed this definition in In re Greenspan, BDN 279-01 (BPR July 30, 2004). That report is currently pending before the Court of Appeals. In Greenspan, the Board divided 6 to 3, the majority finding that the Massachusetts Board of Bar Overseers of the 6

Supreme Judicial Court is a disciplining court under Rule XI, 11(a). The Greenspan majority described the structure of the Massachusetts disciplinary system. Although the Massachusetts Board of Bar Overseers does not have authority to suspend or disbar, the majority concluded that the Board of Bar Overseers is an authority delegated defined responsibilities for discipline and is supervised by the State s highest court which does have authority to suspend and disbar: 4 The Commonwealth of Massachusetts has an integrated disciplinary system and the Board of Bar Overseers is an integral part of the system. Greenspan, slip op. at 10. The Greenspan majority then reviews various rules of statutory construction in support of its conclusion in favor of an expansive reading of the disciplining court definition in Rule XI. And that report notes the public policy reasons that favor the broad reading, to wit: the narrow view endorsed by the Greenspan dissent would result in either a significant increase in the number of original prosecutions that Bar Counsel would be burdened with bringing for conduct which Bar Counsel concludes cannot be overlooked or a free pass for D.C. Bar members disciplined elsewhere by agencies that do not meet the strictly-read definition of disciplining court as limited to the state s highest court. The Greenspan majority did not write on a clean slate. In 1996, the Board decided In re Dixon, BDN 480-95 & 178-96 (BPR July 23, 1996), which arose out of the Connecticut disciplinary system. Dixon was disciplined by the Connecticut Statewide Grievance Committee, another delegee of a state supreme court that, like the Massachusetts Board of Bar Overseers, did not have the power to suspend or disbar. The Board in Dixon concluded that had the respondent appealed the Grievance Committee s reprimand, the matter would have proceeded up the chain to the Court, which did have authority to suspend and disbar. In Dixon, the Board concluded: 4 In this regard, the Massachusetts Board of Bar Overseers is similar to our Board. 7

It would be anomalous, in our view, to conclude that a reprimand affirmed by the Connecticut Supreme Court would be subject to reciprocal discipline, whereas an attorney could escape reciprocal discipline simply by not appealing the Committee s decision. Dixon, slip op. at 5. In recognition that the disciplining court issue was certain to reappear, oft-times from new jurisdictions, the Greenspan majority develop[ed] a consistent methodology for determining what constitutes a disciplining court.... Greenspan, slip op. at 26. Id. at 26-27. The Board hereby adopts a three-part test to be conducted as a prerequisite for imposing reciprocal discipline whenever a lower administrative body imposes discipline in a foreign jurisdiction. The Board will examine the disciplinary scheme in the original jurisdiction to determine that: 1) the administrative body imposing discipline is a part of an attorney disciplinary system; 2) the administrative body is exercising disciplinary authority pursuant to rules or regulations promulgated by a court which itself has authority to disbar or suspend attorneys in the jurisdiction; and 3) the administrative body s imposition of discipline is consistent with that delegated authority. The California State Bar Court meets the three-part Greenspan test. Specifically, it is part of the California state disciplinary system; it exercises its disciplinary authority pursuant to Rules of the California Supreme Court which has authority to suspend and disbar; and its imposition of discipline upon the Respondent here is consistent with its delegated authority. B. No Obvious Miscarriage of Justice In accordance with our limited role, we have examined the record and find that no grave or obvious miscarriage of justice would result through the imposition of the identical reciprocal discipline of a Board reprimand. See Childress, 811 A.2d at 807. First, Respondent was accorded due process in California. He had notice of and was afforded an opportunity to participate in the disciplinary proceedings, and did so. Second, on this record, there is no suggestion that there was any infirmity of proof. Respondent had the opportunity to introduce 8

documentary evidence supporting his position, but he offered none. The California State Bar Court stated that it based its decision on clear and convincing evidence, and there is nothing in the California record to suggest otherwise. Third, it is clear that Respondent s misconduct in California would violate the District of Columbia s Rules of Professional Conduct (the Rules ). By failing to provide an accounting as requested by his client, Respondent willfully violated Rule 4-100(B)(3) of the California Rules of Professional Conduct, which requires its members, in part, to: Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the member or law firm and render appropriate accounts to the client regarding them.... This rule is similar to our own Rule 1.15(b). Respondent s gross negligence in responding to the California State Bar inquiry violated Section 6106 of the California Business and Professions Code that reads, in part: The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension. This statute is similar to our own Rule 8.4(c). Under D.C. Bar R. XI, 11(c)(4), reciprocal discipline shall be imposed unless the misconduct established warrants substantially different discipline in the District. For the reasons described below, the Board concludes that imposition of the identical sanction of a Board reprimand would not constitute a grave miscarriage of justice because a reprimand would not be substantially different than the discipline that would have been imposed had Respondent s misconduct been considered as an original matter. See In re Benjamin, 698 A.2d 434 (D.C. 1997) (sanction of public censure was within the range of sanctions that might be imposed in non-reciprocal case involving two misrepresentations to court and, thus, imposition of a 9

reciprocal discipline in the form of a public censure would not create grave injustice). C. Functionally Equivalent Discipline Because we do not have an identical sanction a public reproval we must determine the functionally equivalent sanction. California defines a reproval as a censure or reprimand. California Bar Rules, Title IV, Rule 1.2 (attached as Exhibit B to the Statement of Respondent). The available options would thus appear to be a censure by the Court or a reprimand by the Board. D.C. Bar R. XI, 3(a)(3)-(4). Bar Counsel initially suggested a censure by the Court, but does not object to imposition of a Board reprimand as sought by Respondent. The difference between a reprimand and a censure is the issuing authority. As Respondent notes, there are numerous cases in which the Court censured an attorney as reciprocal discipline for a public reprimand. See, e.g., In re Bell, 716 A.2d 205 (D.C. 1998). In deciding whether we should impose a reprimand or recommend that the Court impose a censure as functionally equivalent reciprocal discipline, we have looked to whether the California Bar Court only has authority to reprimand, like the Board, or whether it has the authority to suspend or disbar, like the Court. See In re Oak, BDN 491-97, slip op. at 5 (BPR Dec. 8, 1998), adopted 724 A.2d 1205 (D.C. 1999) (per curiam). In Oak, the respondent had been reprimanded by consent by the Michigan Attorney Discipline Board, which has the authority to suspend or disbar an attorney without any action by the Michigan Supreme Court. Thus, we recommended that the Court censure the attorney. Because the California Bar Court only has the authority to impose public and private reprovals, we conclude that the functionally equivalent reciprocal discipline is a Board reprimand. See Respondent s Statement, Exh. B; Cal. Bar. Rules Title II, Rules 264, 270-271. 10

The imposition of reciprocal discipline of a reprimand is within the range of sanctions imposed in the District of Columbia on attorneys who engage in similar misconduct. Respondent s misconduct involves failing to provide an accounting and dishonesty in responding to an ethical complaint. Sanctions imposed for violations of Rule 1.15(b) where misappropriation is not also at issue range from informal admonition to censure. See In re Eaton, BDN 310-95 (BPR June 3, 1997) (informal admonition); In re Harvey, BDN 214-95 (BPR Dec. 4, 1996) (informal admonition); In re Dixon, BDN 480-95 & 178-96 (BPR July 23, 1996) (Board reprimand); In re Graham, 795 A.2d 51 (D.C. 2002) (public censure for violation of Rule 1.15(a), 1.15(b) and 1.17(a)). The range of sanctions for violation of Rule 8.4(c) varies much more widely, but include Board reprimands even when coupled with a violation of Rule 1.15(b). In re Schlemmer, BDN 444-99 & 066-00 (BPR June 16, 2004); see also In re Gutjahr, Bar Docket No. 278-79 (BPR Sept. 11, 1981) (reprimand for making a false statement in course of representation); In re Mitchell, 727 A.2d 308 (D.C. 1999) (public censure for violation of Rule 1.15(b), 1.16(d) and 8.4(c)). 11

IV. CONCLUSION For the foregoing reasons, the Board concludes that Respondent s misconduct warrants identical reciprocal discipline in the District of Columbia. Respondent therefore is hereby reprimanded by the Board on Professional Responsibility. BOARD ON PROFESSIONAL RESPONSIBILITY By: Martin R. Baach Chair Dated: December 17, 2004 All members of the Board concur in this Order. Mr. Wolfson has filed a separate Concurring statement joined by Mr. Klein, Mr. Williams, Ms. Helfrich and Mr. Mercurio. 12

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : ROBERT M. SILVERMAN : Bar Docket No. 145-02 D.C. Bar No. 167610, : : Respondent. : CONCURRING STATEMENT OF MEMBER PAUL R.Q. WOLFSON I did not join the Board s report and recommendation in In re Greenspan, BDN 279-01 (BPR July 30, 2004), because I did not agree that a body that neither itself is the highest court of a state nor itself has the power to suspend or disbar attorneys qualifies as a disciplining court under D.C. Bar R. XI, 11(a). I was also concerned about the potentially broad reach of the Board s three-part test in Greenspan, which, I noted, could conceivably encompass prosecutorial bodies such as the Office of Bar Counsel. It appears, however, that the Board is willing to limit the reach of the Board s language in Greenspan, as demonstrated by the Board s conclusion in In re (Leslie) Silverman, BDN 504-02 & 045-04, that the Maryland Grievance Commission is not a disciplining court. Moreover, the Board s recommendation in Greenspan is currently before the D.C. Court of Appeals, which will soon provide much needed clarification in this area. Given this situation, I believe that we should give Greenspan precedential effect for bodies that are functionally similar to the Massachusetts Board of Bar Overseers at issue in that case. The California State Bar Court is clearly such a body. Like the Massachusetts Board of Bar Overseers, the California State Bar Court functions principally in an adjudicative, rather than a prosecutorial, capacity; prosecutions are conducted by the Chief Trial Counsel of the State Bar of California, who is appointed by the State Bar Board of Governors and confirmed by the State

Senate. See Cal. Sup. Ct. R. 950-951; Cal. Bus. & Prof. Code 6079.5. It also appears that the California Supreme Court gives the State Bar Court a considerable measure of deference; in particular, an attorney who challenges a disciplinary recommendation of the State Bar Court has the burden of showing that the Bar Court s findings are not supported by substantial evidence. See Alberton v. State Bar, 206 Cal. Rptr. 373, 379 (Cal. 1984); Montag v. State Bar, 186 Cal. Rptr. 894, 896 (Cal. 1982). Indeed, the California Supreme Court may deny review of a decision of the California State Bar Court recommending suspension or disbarment, in which case the State Bar Court s recommendation becomes a final judicial determination on the merits and is filed as an order of the Supreme Court. Cal. Sup. Ct. R. 954(b). Thus, although I do not join the Board s report, because of its reliance on the problematic language in Greenspan, I concur in the Board s decision to issue a reprimand. Respondent remains free, of course, to seek review of this decision in the Court of Appeals in order to secure a resolution of the disciplining court issue. By: Paul R.Q. Wolfson Vice Chair Dated: December 17, 2004 This Concurring Statement is joined by Mr. Klein, Ms. Williams and Ms. Helfrich. Mr. Mercurio also joins in this Concurring Statement with the exception of the first sentence. 2