DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : PATRICK E. BAILEY, : : DCCA No. 05-BG-842 Respondent. : Bar Docket No. 220-05 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 447132) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This reciprocal matter comes before the Board on Professional Responsibility (the Board ) as a result of discipline imposed upon Patrick E. Bailey ( Respondent ) by the Circuit Court for the County of Fairfax, Virginia (the Virginia Court ) on April 19, 2005. The Board recommends the imposition of identical reciprocal discipline of a three-year suspension with reinstatement conditioned on a showing of fitness to practice law, to be effective immediately, but deemed to commence, for purposes of reinstatement, on the date he files an affidavit in compliance with D.C. Bar R. XI, 14(g). I. BACKGROUND Respondent was admitted to the Bar of the District of Columbia Court of the Appeals (the Court ) by motion on July 7, 1995. Respondent became a member of the Pennsylvania Bar on January 20, 1993, and of the Virginia Bar on September 14, 2001. On August 9, 2005, Bar Counsel filed with the Court a certified copy of an April 19, 2005 summary order of the Virginia Court suspending Respondent for three years. On August 24, 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 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 Bailey, Order, No. 05-BG-842 (D.C. Aug. 24, 2005). Bar Counsel filed a statement on October 26, 2005, recommending imposition of the nonidentical reciprocal discipline of disbarment. Respondent, through counsel, filed a response in which he argues that the Virginia record is insufficient to support the imposition of discipline and that this reciprocal discipline matter should be dismissed. In a reply, Bar Counsel reiterated that non-identical reciprocal discipline of disbarment should be imposed. II. THE VIRGINIA DISCIPLINARY PROCEEDINGS The Virginia Court found that Respondent violated Virginia Rule of Professional Conduct ( VRPC ) 8.1(a) 1 based on the following findings of fact. On November 22, 2000, Respondent submitted an Applicant s Character and Fitness Questionnaire to the Virginia Board of Bar Examiners. On this questionnaire, Respondent answered no to the following questions: 11. (a) State whether you have ever been, or presently are, a party to or otherwise involved (except as a witness) in: (1) any civil or administrative action or legal proceeding; (2) any criminal or quasi-criminal action or legal proceeding (whether involving a felony, misdemeanor, minor misdemeanor, or any traffic offense); (b) Have you ever been summoned for a violation of any other statute, regulation, or ordinance? Contrary to his answers to the questionnaire, in January 1997, Respondent was arrested in Jamaica for murder while on leave from military service in the United States Marine Corps ( Marine Corps ). The Circuit Court for the Parish of Kingston, Jamaica, found him guilty of 1 VRPC 8.1(a) states, [a]n applicant for admission to the bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, or in connection with a disciplinary matter, shall not (a) knowingly make a false statement of material fact.... D.C. Bar Rule 8.1(a) is substantially similar and prohibits the same conduct. 2
the lesser charge of manslaughter and sentenced him to two years imprisonment at hard labor. Respondent s appeal of his conviction was denied. He served 16 months in a Jamaican prison and returned to the United States in February 1999. In addition, in June 1999, the Marine Corps convened a Board of Inquiry to determine if Respondent should be separated from service for misconduct. The Board of Inquiry found that a preponderance of the evidence proved the allegations of misconduct and the allegations of substandard performance of duty made against Respondent. In February 2000, the Marine Corps permitted Respondent to retire with the rank of captain, one grade inferior to his rank of major. Finally, Respondent s driving record shows that he was convicted on April 24, 1985 and March 21, 1986 of driving at a speed not reasonable or prudent, convicted on March 22, 1990 of failing to obey a traffic signal, and convicted on October 9, 1990 of exceeding the maximum speed limit by ten miles per hour. In the Virginia proceedings, Respondent argued through counsel that he had contacted the Pennsylvania Bar/Pennsylvania Disciplinary Committee for advice about reporting the Jamaican conviction and was told by an unidentified woman that it was not reportable because it occurred outside the United States... in a place where the courts are known to be kangaroo courts.... Virginia Order of Suspension, October 14, 2005, at 5. Respondent also testified that he was not guilty of the crime of which he was convicted in Jamaica. He and other witnesses offered evidence intended to cast doubt on the integrity of the Jamaican proceedings and system of justice. In a summary order dated August 1, 2005, the Virginia Court suspended Respondent s license for three years, effective April 19, 2005, with reinstatement conditioned on a fitness 3
showing, for his violation of VRPC 8.1(a). It dismissed counts charging violations of VRPC 8.1(b) & (c) 2 and 8.4(b) & (c). 3 Respondent filed a Motion to Reconsider the Virginia Court s summary order of suspension on the grounds that the case of Small v. United States, 125 S. Ct. 1752 (2005), precluded the Virginia Court from considering a foreign criminal conviction as a basis for discipline. 4 Respondent argued that Small stands for the proposition that [f]oreign convictions shall not prejudice our citizens. Virginia Opinion and Order on Motion to Reconsider, August, 1, 2005, at 3. On August 1, 2005, the Virginia Court overruled Respondent s Motion to Reconsider, finding that Small was not applicable to Respondent s situation because his case did not turn on the interpretation of federal criminal law, but on the question of whether a lawyer should continue to be licensed to practice... when... he willfully made false statements of material fact on his application for admission... to the Virginia bar. Virginia Opinion and Order on Motion to Reconsider at 4. Accordingly, on October 14, 2005, the Virginia Court issued its written opinion in the matter, suspending Respondent for three years, effective nunc pro tunc, to April 19, 2005, the date of the summary order of suspension. 2 VRPC 8.1(b) & (c) prohibits [a]n applicant for admission to the bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, or in connection with a disciplinary matter, shall not (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter; (c) fail to respond to a lawful demand for information from an admissions or disciplinary authority.... 3 VRPC 8.4(b) & (c) states, [i]t is professional misconduct for a lawyer to: (b) commit a criminal or deliberately wrongful act that reflects adversely on the lawyer s honesty, trustworthiness or fitness to practice law; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer s fitness to practice law.... 4 In Small, the U.S. Supreme Court held that the term convicted in any court does not include foreign courts as used in a federal criminal statute punishing possession of firearms by persons who have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year. 125 S. Ct. at 1758. 4
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); 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)). 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. Respondent does not argue that the Virginia proceedings deprived him of due process. In fact, Respondent fully participated in all of the Virginia proceedings, including the appeal of the original summary order of suspension. In addition, as previously noted, the misconduct in Virginia would also constitute misconduct in the District of Columbia. VRPC 8.1(a) is substantially similar to, and proscribes the same conduct, as D.C. Rule 8.1(a). Thus, we consider the remaining three exceptions in turn. A. Infirmity of Proof Respondent challenges a number of the Virginia Court s findings of fact. He also argues that the Jamaican proceedings were unconstitutional and corrupt and he provides an extensive discussion of the circumstances surrounding the Jamaican proceedings and the Marine Corps 5
administrative proceeding. See Statement of Respondent at 8-23, Dec. 15, 2005. Respondent also claims that the Virginia Court ignored the evidence that he believed that he was not required to report the Jamaican and Marine Corps proceedings. Id. at 32. The infirmity of proof exception to the imposition of reciprocal discipline may not be used to relitigate adverse findings in the original disciplining court. See In re Gallagher, 886 A.2d 64 (D.C. 2005); Zdravkovich, 831 A.2d at 969. The Court has adopted a rigid standard for reciprocal bar discipline cases in light both of the notion that another jurisdiction has already afforded the attorney a full disciplinary proceeding and in the idea that there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority. In re Gansler, 03-BG-1345, slip. op. at 7 (D.C. Dec. 15, 2005) (quoting Zdravkovich, 831 A.2d at 968-69). To satisfy this exception to reciprocal discipline, Respondent shoulders a heavy burden to show there was such infirmity of proof establishing the misconduct that the Virginia Court s decision should not be followed. See In re Bridges, 805 A.2d 233, 235 (D.C. 2002). At a minimum, Respondent must show that the Virginia Court lacked evidence to support its findings of ethical misconduct. Id. The Virginia questionnaire specifically asked if Respondent had ever been a party or otherwise involved in any criminal or quasi-criminal action or legal proceeding. Regardless of whether Respondent actually committed the crime in Jamaica, or, as he claims, the Jamaican courts were unconstitutional and corrupt, he was still involved in a criminal or quasi-criminal action or legal proceeding and therefore required to report the proceeding in the questionnaire. Thus, his answer was false and there is sufficient evidence to support the Virginia Court s conclusion that Respondent violated VRPC 8.1(a). We also do not find merit in Respondent s claim that the Virginia Court ignored the evidence that he believed he was not required to report the Jamaican and Marine Corps proceedings. To the contrary, the Virginia Court 6
explicitly recognized this argument and determined that it had no impact on the outcome of this case. Virginia Order of Suspension at 5. Given that the Virginia Court has afforded the Respondent a full disciplinary hearing, and its findings and conclusions are supported by more than sufficient evidence of misconduct, we find that Respondent has failed to demonstrate that there was an infirmity of proof in the Virginia proceedings under D.C. Bar R. XI, 11(c)(2). B. Grave Injustice Respondent argues that the imposition of reciprocal discipline would be a grave injustice because United States v. Small, rejects the use of foreign convictions as a predicate offense. 5 Statement of Respondent at 31. We find that Respondent has failed to establish the existence of an exception to the imposition of identical reciprocal discipline under D.C. Bar R. XI, 11(c)(3). First, we note that while Small was decided after the Virginia Court first suspended Respondent, the Virginia Court considered his constitutional argument on his Motion to Reconsider and issued a separate opinion outlining the reasons why Small was inapplicable and denying the Motion to Reconsider. The Virginia Court found that Small did no more than interpret the meaning of four words [convicted in any court] in a firearms-possession statute. Virginia Order, August 1, 2005 ( Virginia Appeal Order ). We will defer to the Virginia Court s finding that Small did not preclude a finding that Respondent violated VRPC 8.1(a) when he failed to report his involvement in the Jamaican proceeding. We will not relitigate that finding when the attorney has already been afforded a full disciplinary hearing. Gallagher, 886 A.2d 64; Zdravkovich, 831 A.2d at 969. In addition, even if Small were interpreted to preclude use of the Jamaican proceeding against Respondent, the Virginia Court also found separate violations of VRPC 8.1(a) because Respondent did not 5 See supra n.4. 7
include information on his application regarding the Marine Corps actions and his driving record. Thus, Respondent has failed to establish a grave injustice under D.C. Bar R. XI, 11(c)(3). C. Substantially Different Discipline Bar Counsel argues that the substantially different discipline exception of D.C. Bar R. XI, 11(c)(4) applies and that the Board should recommend the non-identical reciprocal discipline of disbarment. We disagree. The Court has set forth a two-pronged test to analyze the substantially different discipline exception. First, we must determine if, tried as an original matter, the misconduct in question would not have resulted in the same punishment as it did in the disciplining jurisdiction. See In re Demos, 875 A.2d 636, 642 (D.C. 2005) (citing In re Garner, 576 A.2d 1356, 1357 (D.C. 1990) (per curiam)). To determine whether it is the same punishment, we look to whether the sanction falls within the range of sanctions that would be imposed for the same misconduct. Demos, 875 A.2d at 642 (citing In re Fuller, 674 A.2d 907, 909 (D.C. 1996) (per curiam). Second, if the discipline imposed in the District of Columbia would be different from that of the original disciplining court, we must then decide whether the difference is substantial. Demos, 875 A.2d at 642 (citing Garner, 576 A.2d at 1357). Under the first prong of the test, Bar Counsel argues that disbarment not only is the norm, but typically has been the only sanction imposed by this court for intentional misrepresentations during the application process to the degree displayed by Respondent. Statement of Bar Counsel at 10 (quoting Demos, 875 A.2d at 642). However, notwithstanding the Court s statement in Demos, it has in fact imposed a wide range of discipline for intentional 8
misrepresentations in bar applications. 6 The range, from a six-month suspension with a fitness requirement on the low end, to disbarment on the high end, is established by three cases decided by the Court that are appropriately considered in the sanction analysis. 7 See In re Starnes, 829 A.2d 488 (D.C. 2003) (per curiam) (original case imposing a six-month suspension with a fitness requirement for intentionally misrepresenting on an application for admission to the District of Columbia Bar that Respondent s legal work was supervised by an attorney in the District of Columbia); In re Regent, 741 A.2d 40 (D.C. 1999) (per curiam) (original case imposing disbarment for numerous and repeated intentional misrepresentations in applications for admission to two bar authorities); Demos, 875 A.2d 636 (reciprocal case imposing disbarment for a serious pattern of intentional deception in the bar application process); 8 see also In re Powell, Bar Docket No. 420-02 (BPR Feb. 27, 2004), pending appeal, No. 05-BG-785 (D.C.) (original case where the Board recommended a one-year suspension with a fitness requirement for intentional misrepresentations in the bar application process). A three-year suspension with a fitness requirement clearly falls within the range of sanctions established by the above cases for intentional misrepresentations during the bar application process. Accordingly, the substantially different discipline exception under D.C. Bar R. XI, 11(c)(4) does not apply. 6 Indeed, in a recent filing with the Court, Bar Counsel acknowledged that there is... support in the case law for a sanction less than disbarment in a case involving intentional misrepresentation in the bar application process. In re Powell, D.C. App. No. 05-BG-785, Statement of Bar Counsel at 14, January 11, 2006. 7 Other cases relied on in Demos and by Bar Counsel in this matter are reciprocal matters, in which the Court imposed identical reciprocal discipline, and are not useful guides for determining a sanction in an original case. See In re Webster, 661 A.2d 144 (D.C. 1995); In re Gilbert, 538 A.2d 742 (D.C. 1988) (per curiam). 8 Although Demos is a reciprocal case, the Court did not employ its usual rigid standard of review, because it found the existence of an exception to the imposition of identical reciprocal discipline under D.C. Bar R. XI, 11(c)(4). Because the substantially different discipline exception requires the Court to impose the discipline it would have imposed in an original matter if the exception applies, Demos is a useful guide in determining an appropriate original sanction in this case. Demos, 875 A.2d at 642. 9
IV. Effective Date of Suspension On August 24, 2005, Respondent submitted a notarized Affidavit to the Board stating, since being licensed in 1995, I have never practiced law in the District of Columbia and do not intend to practice law in the District of Columbia within the next 3 years. It appears that this affidavit was intended to comply with the criteria of In re Goldberg, 460 A.2d 982 (D.C. 1983). However, Respondent is not entitled to nunc pro tunc treatment from the commencement of the suspension in Virginia under Goldberg, because he failed to notify District of Columbia authorities of his suspension in Virginia and to file a timely affidavit pursuant to D.C. Bar R. XI, 14(g). See In re Cornish, 691 A.2d 156, 158 n.3 (D.C. 1997 (per curiam); In re Saboorian, 770 A.2d 78, 79 n.2 (D.C. 2001) (per curiam); In re Slosberg, 650 A.2d 1329, 1331 n.6 (D.C. 1994); Goldberg, 460 A.2d 982. Because Respondent failed to file the 14(g) affidavit, his disbarment should run from the filing of a compliant affidavit. See D.C. Bar R. XI, 16(c); Slosberg, 650 A.2d at 1331. We considered whether to recommend that Respondent be permitted to file a supplemental affidavit and to have the disbarment run from August 24, 2005, the filing of his Goldberg affidavit. Whether a supplemental affidavit is appropriate is guided by the criteria we set forth in In re Susman, Bar Docket No. 024-00 (BPR Oct. 25, 2004), adopted 876 A.2d 637 (D.C. 2005). Susman requires consideration of three factors when determining whether defects can be corrected and the respondent accorded nunc pro tunc treatment: (1) Did the omission or defect go to one of the core requirements listed in D.C. Bar R. XI, 14(a) thru (d)? If so, was there actual compliance with these requirements which was simply not adequately reported in the affidavit? (2) Does respondent s conduct, both in the underlying violation and in the disciplinary proceeding, suggest that an opportunity to correct is in order? 10
(3) Does fairness to the respondent suggest than an opportunity to correct is in order? If so, would nunc pro tunc treatment adequately protect the public? Id. at 8. We consider each of these factors in turn. A. Substantive nature of omissions The Court has recognized that not all the requirements of 14(g) are of equal importance and has distinguished between technical requirements and core requirements. See id. at 9. The protection primarily afforded by 14(g) is to confirm the required notification to clients and adverse parties and the return of client papers and property. Id.; In re Bowser, 771 A.2d 1002, 1012 (D.C. 2001). These core requirements should not typically be correctable by a supplemental affidavit unless there is evidence in the record to suggest either that: (i) there are no clients or adverse parties to notify, see Gardner, 650 A.2d 693; or (ii) the respondent actually complied with the core requirements but the affidavit fails to reflect full compliance. Susman, Bar Docket No. 024-00 at 10. Respondent stated in his Goldberg affidavit that since being licensed [in the District of Columbia] in 1995, I have never practiced law in the District of Columbia and do not intend to practice law in the District of Columbia within the next 3 years. This statement fails to satisfy the core requirements of 14(g) because it fails to demonstrate that Respondent s clients, if any, were given notice and provided with their files to protect them from his suspension. See In re O Toole, Bar Docket No. 087-04 at 10 (BPR Dec. 2, 2004), adopted, 877 A.2d 151 (D.C. 2005) (per curiam); In re Slosberg, 650 A.2d at 1332. However, Respondent s statement in his Goldberg affidavit that he has never practiced law in the District of Columbia suggests that he may in fact have no clients or adverse parties to notify. Thus, the first factor in the Susman analysis weighs in favor of allowing Respondent to correct the deficiencies by supplemental affidavit and receive nunc pro tunc treatment. 11
B. Respondent s conduct Respondent s conduct in the underlying disciplinary matter included several instances of dishonesty on a bar application and is coupled with his failure to report the Virginia discipline to Bar Counsel. Because Respondent s dishonesty impaired the bar admissions process, this factor suggests that he should not be allowed to submit a supplemental affidavit. See Susman, Bar Docket No. 024-00 at 10-11. C. Fairness to Respondent The Court has allowed an opportunity to supplement insufficient affidavits where respondents were not notified of the requirements of 14(g). See Gardner, 650 A.2d at 697 n.7. Here, the Board explicitly notified Respondent of the two distinct affidavits required by Goldberg and 14(g), and he was again directed to the 14(g) affidavit requirement in the Court s interim order of suspension. See Bailey, Order, No. 05-BG-842; Letter from Elizabeth Branda to Respondent, August 16, 2005. Thus, Respondent received ample notice of the 14(g) affidavit requirement, and there is nothing in the record to suggest that it would be unfair to require strict adherence to its terms. The nature of Respondent s underlying misconduct and the lack of evidence to suggest that Respondent was unaware of his obligations under the rule or that it would be unfair to require compliance with its terms weigh against permitting Respondent to submit a supplemental affidavit. We therefore recommend that Respondent s suspension be effective for purposes of reinstatement on the date he files an affidavit that fully complies with the requirements of D.C. Bar R. XI, 14(g). See Slobserg, 650 A.2d at 1331. 12
V. Conclusion For the foregoing reasons, we recommend that the Court impose identical reciprocal discipline on Respondent of a three-year suspension with reinstatmat conditioned an a showing of fitness to practice Jaw. Respondent's suspension should be effective immediately but deemed to cocommence, for purposm of reinstatement, on the date he files an &davit in compliance with D.C. Bar R. XI, 5 14(g). BOARD ON PROFESSIONAL RESPONSIBILITY By: / Jean S. Rapp I/ Dated: MAR 1 3 20% All members of the Board concur in &is Report and Recornendation except Mr. Bwcb who did not participate.