DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) TODD A. SHEIN, ) Bar Docket No. 453-02 ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes before the Board on Professional Responsibility (the Board) as a result of discipline imposed by the Court of Appeals of Maryland (the Maryland Court ). Respondent has been a member of the Bar of the District of Columbia Court of Appeals (the Court ) since December 27, 1989, when he was admitted by motion. He was admitted to the Bar of the Maryland Court on June 14, 1988. On July 12, 2002, Respondent was indefinitely suspended by order of the Maryland Court, based on a Joint Petition for Indefinite Suspension by Consent ( Joint Petition ) filed by the Attorney Grievance Commission of Maryland and Respondent. Order, Attorney Grievance Comm n v. Shein, 802 A.2d 437 (Md. 2002). The order provides no minimum term of suspension. Bar Counsel reported Respondent s Maryland discipline to the Court, and on November 20, 2002, the Court ordered Respondent s temporary suspension in the District of Columbia pending final disposition of this reciprocal proceeding pursuant to D.C. Bar R. XI, 11(d). Order, In re Shein, No. 02-BG-1220 (D.C. Nov. 20, 2002). The Court directed the Board to recommend whether identical, greater, or lesser discipline should be imposed as reciprocal discipline or whether the Board instead elects to proceed de novo. Bar Counsel recommends
identical discipline of indefinite suspension with a fitness requirement and the right to apply for reinstatement after Respondent is reinstated in Maryland or after five years, whichever occurs first. For the following reasons, the Board agrees with Bar Counsel and recommends that the Court impose identical reciprocal discipline of an indefinite suspension, with a fitness requirement and the right to apply for reinstatement after Respondent is reinstated in Maryland or after five years, whichever occurs first. The Maryland Proceeding At the time Respondent entered into the Joint Petition, four disciplinary matters were pending against him. In two of the four matters, charges had been filed; a hearing was held in one matter, but no hearing had been held in the other. The other two matters were under investigation by Maryland Bar Counsel; in both those matters, the Attorney Grievance Commission of Maryland had directed Maryland Bar Counsel to file formal charges against Respondent, but they had not yet been filed at the time Respondent entered into the Joint Petition. The Joint Petition reports that in the first matter where formal charges were filed, Respondent was found, after a hearing 1 in the Circuit Court for Montgomery County, Maryland before Judge DeLawrence Beard, to have violated Rules 1.4(a), 1.15(b), 1.16(d), 8.1(b) and 1 Bar Counsel included a copy of the opinion, Attorney Grievance Comm n of Maryland v. Shein, Misc. Petition No. 15041 (Md. Cir. Ct. Mar. 26, 2002), as an attachment to her statement on reciprocal discipline. The opinion is referred to in the Joint Petition and the findings are not contested by Respondent. The Board therefore finds it is appropriate to consider the opinion as part of the record of this reciprocal discipline proceeding. Cf. In re Maxwell, 798 A.2d 525 (D.C. 2002) (Court found factual findings from civil trial to be insufficient proof in the reciprocal discipline proceeding where a joint petition, and not the civil trial findings, was the basis for the discipline imposed by the original disciplining court). 2
8.4(d) of the Maryland Rules of Professional Conduct ( Maryland Rules ). 2 The Circuit Court found that Respondent failed to keep his client apprised of matters during the representation in a breach of contract matter and failed to respond to his client s numerous telephone calls pertaining to the status of his case and written inquiries pertaining to the return of his file; failed to give his client an appropriate statement for hours expended and services rendered; failed to promptly forward his client s file and failed to communicate with his client s new attorney in a professional manner; failed to respond to the several written requests made by Maryland Bar Counsel to respond to the allegations of failure to return his client s file; and failed to timely ascertain the location of his client s file and turn it over to his client s new attorney. 2 Maryland Rule 1.4(a) (Communication) states: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Maryland Rule 1.15(b) (Safekeeping Property) states: Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. Maryland Rule 1.16(d) (Declining or Terminating Representation) states: Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. Maryland Rule 8.1(b) (Bar Admission and Disciplinary Matters) states: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. Maryland Rule 8.4(d) (Misconduct) states: It is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice. 3
The Joint Petition states that in the second matter where formal charges were filed but no hearing was held, Respondent was charged with violating Maryland Rule 5.4(a) 3 by sharing fees with a non attorney. The Joint Petition also states that in the first matter under investigation, Respondent was alleged to have failed to handle an estate matter properly, including failing to keep his client apprised of the status of the case. It reports that in the second matter under investigation, Respondent was alleged to have commingled funds related to a limited partnership (in which he was a partner in his escrow account) and on occasion failed to maintain client funds in trust; Respondent was also alleged to have failed to monitor his staff relative to his staff signing his associate s signature to documents without the associate s knowledge or permission, as well as his staff notarizing documents subsequent to having the signer present. In the Joint Petition, Respondent states that he is aware that an investigation is currently pending involving allegations of his professional misconduct and he knows that if a hearing were to be held, sufficient evidence could be produced to sustain the allegation of misconduct. The Joint Petition does not specify the investigation to which Respondent refers. Reciprocal Discipline D.C. Bar R. XI, 11(f)(2) establishes a presumption in favor of the imposition of identical reciprocal discipline, which is rebuttable if the respondent demonstrates by clear and 3 Maryland Rule 5.4(a) (Professional Independence of a Lawyer) provides, in pertinent part, that A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer s death, to the lawyer s estate or to one or more specified persons; (2) a lawyer who purchases the practice of a lawyer who is deceased or disabled or who has disappeared may pursuant to the provisions of Rule 1.17, pay the purchase price to the estate or representative of the lawyer; (3) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and (4) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profitsharing arrangement. 4
convincing evidence, or the Court finds on the face of the record by clear and convincing evidence, that one or more of the five exceptions set out in D.C. Bar R. XI, 11(c) exists. 4 See D.C. Bar R. XI, 11(c) & (f); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). When a respondent does not contest reciprocal discipline, however, the role of the Board is limited: [t]he most the Board should consider itself obligated 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, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)). Further, the Court reiterated in In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (per curiam), that in such circumstances, the imposition of identical discipline should be close to automatic, with minimum review by both the Board and this court. 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. Childress, 811 A.2d at 807 (quoting In re Goldsborough, 654 A.2d 1285, 1287-288 n.5 (D.C. 1995)). 4 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
In the instant case, Respondent agreed to an indefinite suspension and does not contest the imposition of reciprocal discipline. In accordance with our limited role in such situations, we have examined the record and, finding nothing that rises to the level of an obvious miscarriage of justice, we recommend the imposition of identical reciprocal discipline of an indefinite suspension, with the right to apply for reinstatement after Respondent is reinstated in Maryland or after five years, whichever occurs earlier. First, there is no evidence that Respondent was denied due process by the Maryland Court or that there was an infirmity of proof; Respondent participated in the disciplinary process and consented to the discipline of an indefinite suspension. Because Respondent consented to discipline, the factual record in this matter provides only limited information regarding Respondent s misconduct; the Board therefore is unable to evaluate whether Respondent s misconduct would warrant substantially different discipline in this jurisdiction. In cases where the original disciplining court has developed no factual record, the Court has imposed indefinite suspension with the right to apply for reinstatement after being reinstated in the original jurisdiction or after five years, whichever comes first, as identical reciprocal discipline. See In re Slattery, 766 A.2d 561 (D.C. 2001) (per curiam); In re Blades, 766 A.2d 560 (D.C. 2001) (per curiam); In re Anagnostiadis, 765 A.2d 548 (D.C. 2001) (per curiam); see also In re Zdravkovich, No. 01-BG-96 (D.C. Sept. 11, 2003). In Zdravkovich, the Court suggested that the Board consider adopting a uniform policy of imposing identical reciprocal discipline in cases where the original disciplining court has imposed an indefinite suspension with no minimum term of suspension and after conducting a 6
full evidentiary hearing. 5 See Zdravkovich, No. 01-BG-96, slip op. at 12. In this case, there is a limited factual record of the misconduct from Maryland, based on the opinion following the hearing before the Circuit Court for Montgomery County. The Joint Petition also states the charges pending against Respondent or under investigation and contains Respondent s acknowledgment that sufficient evidence could be produced to sustain the allegation of misconduct. However, the Joint Petition does not specify the allegations to which Respondent refers. Under these circumstances, where the record is less than complete, we believe it is appropriate to adopt the Court s approach in Zdravkovich regarding matters where there is no factual record. We therefore recommend an indefinite suspension with a fitness requirement and the right to apply for reinstatement after being reinstated in Maryland or after five years, whichever comes first, as identical reciprocal discipline. If Respondent is summarily reinstated in Maryland, Respondent may seek vacatur of the fitness requirement pursuant to Board Rule 8.7. See Zdravkovich, No. 01-BG-96, slip op. at 10-11 (citing In re Atkinson, 785 A.2d 318, 321 (D.C. 2001) (per curiam) (Board report appended) and In re Berger, 737 A.2d 1033, 1044-45 (D.C. 1999)). We turn to the question of notice of these reciprocal proceedings. The record shows that Respondent received notice of the Maryland proceedings; Respondent participated in the process and consented to the discipline imposed. In this jurisdiction, Bar Counsel and the Board followed their normal practices of service of papers upon Respondent. Bar Counsel copied Respondent with her letter of November 6, 2002, to the Clerk of the Court providing a certified copy of the Maryland Court s order, sending the letter to Respondent s primary address listed with the District of Columbia Bar. On November 7, 2002, the Executive Attorney for the Board 5 The Court in Zdravkovich suggested alternatively that the Board could adopt a procedure deferring any determination of a fixed period of suspension until the time that the respondent applies for reinstatement. See Zdravkovich, No. 01-BG-96, slip op. at 13. 7
sent a letter to Respondent at his primary address, enclosing copies of pertinent portions of D.C. Bar R. XI and advising Respondent of the pendency of reciprocal discipline proceedings and his opportunity to respond to Bar Counsel s statement as to whether reciprocal discipline should be imposed. That letter was returned marked Undeliverable as Addressed. On November 19, 2002, the Executive Attorney re-sent the November 7, 2002 letter to Respondent at both his primary and secondary addresses listed with the District of Columbia Bar. The letter sent to the primary address was returned marked Undeliverable as Addressed ; the letter sent to the secondary address was also returned. Copies of the Executive Attorney s additional letters to Bar Counsel informing her of the undeliverable mail, sent to Respondent at his addresses listed with the District of Columbia Bar, were returned as undeliverable. On February 3, 2003, the Executive Attorney sent Respondent another letter to a new address provided by Bar Counsel, which was obtained from Maryland Bar Counsel. This letter was not returned. The Court has found notice of pending reciprocal discipline proceedings mailed to a respondent s address of record with the District of Columbia Bar sufficient even where the mail is returned as undeliverable, where the respondent fails to report a foreign order of discipline to Bar Counsel, as required by D.C. Bar R. XI, 11(b), and fails to keep his address updated with the District of Columbia Bar, as required by D.C. Bar R. II, 2(1). See In re McGowan, 827 A.2d 31, 31 n.2 (D.C. 2003) (per curiam) (citing In re Smith, 812 A.2d 931, 932 (D.C. 2002) (per curiam) ( Because respondent failed to report his [discipline] to Bar Counsel as required by D.C. Bar R. XI, 11(b), and failed to update his address with the D.C. Bar as required by D.C. Bar R. II, 2(1), we treat this reciprocal matter as one in which respondent had notice and did not respond. )). Given Respondent s failure to both report his discipline to Bar Counsel and to 8
update his addresses with the District of Columbia Bar, we find Respondent to have had notice of reciprocal proceedings in this matter. Conclusion Based on the foregoing, we recommend that the Court impose identical reciprocal discipline of an indefinite suspension from the practice of law with a fitness requirement, with the right to apply for reinstatement after five years or upon reinstatement in Maryland, whichever occurs earlier. The suspension should be deemed to run, for purposes of reinstatement, from the time Respondent files the affidavit required by D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329 (D.C. 1994). BOARD ON PROFESSIONAL RESPONSIBILITY By: Dr. Kay T. Payne Dated: October 24, 2003 All members of the Board concur in this Report and Recommendation. 9