DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of Respondent. RICHARD G. CERVIZZI, A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 938282) Bar Docket No. 128-05 D.C. App. No. 05-BG-882 REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This disciplinary matter comes before the Board on Professional Responsibility ( the Board ) as a result of an order of disbarment imposed by the Supreme Judicial Court of Maine ( the Maine Court ) on April 4, 2005. Respondent did not contest disbarment in Maine and has not appeared, despite repeated notices, to contest discipline in this forum. Upon review of the record, the Board recommends that the District of Columbia Court of Appeals ( Court of Appeals ) impose reciprocal discipline in the form 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).
I. BACKGROUND A. Procedural History in the District of Columbia Respondent is a member of the District of Columbia Bar, having been admitted on November 25, 1977. Respondent has been administratively suspended from the District of Columbia bar for nonpayment of dues since October 31, 2000. Respondent, a member of the Maine bar prior to his disbarment, is also a member of the bars of Massachusetts and of the U.S. Supreme Court. On August 22, 2005, D.C. Bar Counsel filed a certified copy of the Maine Court s disbarment order with the Court of Appeals, pursuant to D.C. Bar R. XI, 11(b). D.C. Bar Counsel also mailed a copy of its filing to Respondent at Respondent s last known office address in Maine. Thereafter, on August 24, 2005, the Board mailed a letter to Respondent at his listed business address in Maine informing him that Bar Counsel would file a statement on reciprocal discipline within thirty days from the filing of the Maine disbarment order with the Court of Appeals. The Board s letter informed Respondent that after Bar Counsel submitted its statement, he would have ten days within which to respond. The Board s letter also instructed Respondent to file the necessary affidavits under In re Goldberg, 460 A.2d 982 (D.C. 1983) and D.C. Bar. R. XI, 14(g). On August 26, 2005, the Court of Appeals issued an order suspending Respondent from the practice of law, and directing the Board to submit an opinion recommending identical, lesser, or greater discipline as reciprocal discipline, or recommending that the Court of Appeals proceed de novo pursuant to D.C. Bar R. XI, 11. On August 31, - 2 -
2005, Bar Counsel notified the Clerk of the Court of Appeals that his mailing to Respondent on August 22, 2005 had been returned by the United States Post Office. Bar Counsel then mailed the notice of the reciprocal proceeding and related matters to Respondent at his home address on file with the District of Columbia Bar. Further, on September 15, 2005, the Board mailed to Respondent s home address another copy of its August 24, 2005 letter, reminding him of his opportunity to respond to the statement of Bar Counsel regarding disciplinary measures to be taken against him and requesting the required affidavits under In re Goldberg and D.C. Bar R. XI, 14(g). On September 22, 2005, Bar Counsel submitted a statement to the Board recommending disbarment as reciprocal discipline identical to that imposed by the Maine Court. Respondent has not filed a response to the statement of Bar Counsel and has not objected in any way to reciprocal discipline. B. The Maine Disciplinary Proceedings On October 5, 2004, Maine Bar Counsel filed a formal 28-page Information against Respondent. The Information contained 13 counts of alleged misconduct. The Information recited that as a result of his failure to satisfy his Maine tax obligations, Respondent s license to practice law in Maine was suspended, effective July 30, 2003. Thereafter, according to the Information, he continued in isolated cases to practice in Maine and failed properly to notify his clients of his suspension. The Information also alleged that in one criminal case Respondent had back-dated a document filed with the Court to make it appear that he was not practicing after his suspension. The Information also charged that in another matter handled after his suspension, Respondent had mishandled and failed to disburse funds properly in a mortgage transaction and, with - 3 -
respect to at least a dozen separately identified clients, Respondent had failed to return files or respond to inquiries from clients concerning their matters. The Information also charged that Respondent had failed to respond to inquiries from Bar Counsel and had failed to comply timely with a Court order that he deliver client files to Bar Counsel. According to the Order of Disbarment of the Maine Supreme Judicial Court, on December 20, 2004, Respondent was properly served with copies of the Information and a notice directing him to respond to motions by the Maine Board of Overseers of the Bar for default and contempt. On January 7, 2005, Respondent was served personally, by a private detective, with duplicate copies of the Information and the motions at his place of employment, Lee Auto Sales in Windham, Maine. Although the Maine Court issued an order dated January 14, 2005 requiring Respondent to cooperate in the return of his former clients files, Respondent did not comply within the time specified. Respondent also did not respond to the Information, or the motions for contempt or default. This failure to respond resulted in a finding of default. Under Maine Rule 7.2(b)(2), a default is deemed an admission of the facts and allegations contained in the Information. By letter of March 10, 2005 from the Maine Supreme Judicial Court, Respondent was notified of an evidentiary hearing before that Court to be held on March 30, 2005. On that date, Respondent hand delivered to the Maine Court a letter dated March 30, 2005, stating that he did not contest the sanction of disbarment. Respondent notified Maine Bar Counsel that he would not attend the hearing and, in fact, Respondent did not attend his disciplinary hearing before the Maine Court. At the disciplinary hearing, Maine Bar Counsel presented testimony by six witnesses and introduced 50 exhibits. On April 4, 2005, the Maine Court made findings of fact, incorporating, by reference, all of - 4 -
the allegations in the Information that Respondent admitted by default, and ordered the disbarment of Respondent. In its Order of Disbarment, the Maine Court found, among other things, that (1) Upon receiving notice in early July 2003 that he had been summarily suspended from practice by the Board, effective July 30, 2003, for his failure to comply with his Maine tax obligations, Respondent failed to inform his clients, courts, opposing counsel, or other required individuals or agencies of that suspension. (2) Thereafter, Respondent failed to assist many of his clients to obtain new counsel and abandoned most of his clients and the legal matters they had entrusted to him. A number of his clients did not know that he was no longer acting as their lawyer, and did not know where to find him or their files or in what status their legal affairs had been left. (3) Respondent repeatedly ignored the Board s and Bar Counsel s efforts to contact him about grievances filed against him and the whereabouts of clients files. (4) In at least two matters, he continued to represent clients in court after July 30, 2003 in direct violation of his suspension notice. (5) In one of those matters, a pending criminal case, Respondent signed a document on August 7 that was dated July 31, 2003, making it appear that he had signed the document before he had been suspended from practice. (6) In another case, Respondent signed a document setting forth his obligation to disburse fees and charges totaling approximately $1,000 to a mortgage broker - 5 -
concerning a loan transaction for which Respondent has acted as settlement agent. The Court found no evidence that Respondent ever made that required payment. (7) Respondent failed to comply timely with the Court s order for custody of files issued in late April 2004 requiring him to turn over his former clients files to Bar Counsel by May 7, 2004. Respondent did not comply with that order until mid-january 2005. (8) Respondent abandoned each of the four clients who testified at the hearing, refusing to respond to inquiries by each of the four, and refusing to return files or documents to his clients. Based on these and other findings, the Maine Court found that Respondent violated numerous Maine bar rules. The Maine Court found that the violations were serious and affected many clients and the integrity of the Maine Bar disciplinary process. The Board found that Respondent had violated the following Maine Bar rules Rule 2(c) (failing to respond to inquiries by the Board and Bar Counsel); Rule 3.1(a) (engaging in conduct unworthy of an attorney); Rule 3.2(f)(1)-(4) (violating, circumventing or subverting the Maine Bar Rules; engaging in illegal conduct that adversely affects the lawyer s honesty, trustworthiness or fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct prejudicial to the administration of justice); Rule 7.3(i)(1)(B) and (C) (failing to notify clients and attorneys or adverse parties of a lawyer s suspension or disbarment and failing to file the required affidavit of compliance with clerk and with Board); Rule 3.4(a)(4) (failing to act promptly to provide files requested by Bar Counsel and ordered by the Court); Rule 3.6(a) and 3.6(a)(3) (neglecting, refusing, or delaying to return files); and Rule 3.7(b) - 6 -
(knowingly making a false statement, concealing information legally required to be revealed, or participating in the creation or preservation of false evidence). In finding these violations, the Maine Court also found that Respondent had not suggested any justification or mitigating circumstances for his action and had indicated no remorse for the harm he caused his former clients. The Maine Court disbarred Respondent, effective as of the date of the order, April 4, 2005, and provided that he may not seek reinstatement for at least five years, and only after he makes a restitution payment in the mortgage matter, and pays approximately $2,200 to the Board of Overseers of the Bar to reimburse its expenses incurred in securing the return of former clients files from Respondent s residence. Respondent failed to inform D.C. Bar Counsel of his disbarment as required by D.C. Bar R. XI, 11(b). On April 4, 2005, Maine Bar Counsel forwarded a copy of Respondent s Order of Disbarment to D.C. Bar Counsel. II. LEGAL ANALYSIS 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 forth in D.C. Bar R. XI, 11(c) applies. D.C. Bar R. XI, 11(f); see In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). 1 However, when a respondent does not contest the 1 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 [Footnote is continued on next page] - 7 -
imposition of identical 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 reciprocal discipline when the respondent does not object should be close to automatic, with minimum review by both the Board and his court. In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (per curiam). In the instant case, Respondent did not contest disbarment in Maine and has not contested the imposition of reciprocal discipline in the District of Columbia. The Board has examined the record and finds nothing that rises to the level of an obvious miscarriage of justice. There is no evidence that Respondent was denied due process in the Maine Supreme Judicial Court or that there is any infirmity of proof underlying the findings of violation of the disciplinary rules there. Respondent had notice and an opportunity to be heard in Maine. He chose not to participate in the Maine proceedings, stating by letter that he did not contest disbarment there. Because Maine provided Respondent with notice of the disciplinary proceeding and an opportunity to be heard, this jurisdiction may impose reciprocal discipline in compliance with Constitutional procedural due process. It is consistent with the Constitution for the Court of Appeals to impose reciprocal discipline relying on the [Footnote continued from previous page] District of Columbia; or (5) The misconduct elsewhere does not constitute misconduct in the District of Columbia. - 8 -
evidentiary hearing in Maine. In re Richardson, 692 A.2d 427 (D.C. 1997), cert. denied, 522 U.S. 1118 (1998). Respondent cannot demonstrate an infirmity of proof. Respondent s consent to disbarment functioned as a default admission to the charges in the Information. Further, Maine Bar Counsel introduced substantial evidence and testimony supporting its case. The facts proven at the hearing sufficiently support a finding of violation of the Rules. Respondent s misconduct does not warrant substantially different discipline in the District of Columbia than that which was imposed by the Maine court. There is no need to reach the choice of law issue that Bar Counsel raises 2 because the Respondent s misconduct in Maine constitutes misconduct in the District of Columbia under the D.C. Rules. Most of the Maine rules have analogs in the District of Columbia rules. 3 There is no basis to conclude that substantially different discipline is appropriate, or that the imposition of identical reciprocal discipline here would result in a grave injustice. Disbarment is appropriate in this case because it is a disciplinary measure consistent with sanctions imposed in comparable cases of misconduct. See In re Fuller, 2 Bar Counsel argues that, under our Rule of Professional Conduct 8.5, where (as in this case) the misconduct takes place entirely in the originating jurisdiction, this Board should not independently consider whether the facts would constitute misconduct in the District of Columbia, but rather, under a choice of law analysis, should accept the foreign jurisdiction s determination that misconduct has occurred. The Board has previously rejected this argument by Bar Counsel. See In re Gansler, BDN 405-03, at 12-19 (BPR July 9, 2004), aff d on other grounds, No. 03-BG-1345 (D.C. Dec. 15, 2005). 3 Maine Rules 2(c) and 3.1(a) are parallel to D.C. Bar Rules 8.4(a), and 8.1(b). Maine Rule 3.2(f)(1)-(4) is substantially similar to D.C. Bar Rule 8.4(a)-(d); Maine Rule 3.4(a)(4) is equivalent to D.C. Bar Rule 1.16(d); Maine Rule 3.6(a)(1)-(3) is substantially the same as D.C. Bar Rules 1.1(a) and (b) and 1.3. Maine Rule 3.7(b) is equivalent to Rule 3.3(a); Maine Rule 7.3(i)(1) is equivalent to D.C. Bar R. XI, 14(a)-(f). - 9 -
674 A.2d 907, 909 (D.C. 1996) ( the test is whether the discipline imposed is within the range of sanctions that would be imposed for the same misconduct. ) (citation omitted). The Court of Appeals has repeatedly cited severe client neglect and/or misconduct involving dishonesty and false statement as grounds for disbarment, particularly in cases involving a pattern of misconduct or repeated violations of the ethical rules. See, e.g., In re Haupt, 444 A.2d 317 (D.C. 1982) (disbarment appropriate in case involving 13 separate matters in which lawyer demonstrated pattern of neglect); In re Foster, 699 A.2d 1110 (D.C. 1997) (disbarment appropriate where lawyer engaged in pattern of deliberate neglect); In re Lyles, 714 A.2d 120 (D.C. 1998) (reciprocal disbarment appropriate in response to lawyer s chronic neglect of clients, coupled with dishonesty, failure to cooperate with disciplinary process, and record of prior discipline for neglect); In re Lenoir, 604 A.2d 14 (D.C. 1992) (disbarment appropriate for pervasive neglect, dishonesty, and misappropriation of client funds); In re Minninberg, 485 A.2d 149 (D.C. 1984) (disbarment warranted for misappropriation of client funds compounded by dishonest conduct in violation of other Disciplinary Rules). Even in cases imposing discipline falling short of disbarment, the Court of Appeals has, in analyzing the range of disciplinary measures available, described the type of misconduct present in the instant case, and characterized it as grounds for disbarment. See, e.g., In re Stanton, 470 A.2d 272, 280 (D.C. 1983) ( serious neglect and/or willful failure combined with an act of dishonesty and/or prior discipline has... resulted in disbarment or a lengthy suspension. ); In re Mance, 869 A.2d 339, 340 n.4 (D.C. 2005) - 10 -
("...harsher sanctions (i.e., longer periods of suspension or disbarment) tend[s] to be reserved for misconduct involving neglect of more than one client and/or dishonesty..."). Based on both the Rules violations in the District of Columbia and deference to the discipline imposed in the foreign jurisdiction, identical reciprocal discipline is warranted. See In re Zdvavkovich, 831 A.2d 964,969 (D.C. 2003) ("'Underlying our strict standard in reciprocal bar discipline cases is not only the notion that another jurisdiction has already afforded the attorney a.full disciplinary proceeding, but also 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.") (citations omitted). CONCLUSION For the reasons set forth herein, the Board recommends that the Court impose reciprocal discipline on Respondent and that he be disbarred fiom the practice of law in the District of Columbia. For purposes of reinstatement, Respondent's disbarment should run fiom the time he files an affidavit that fully complies with D.C. Bar Rule XI, 14(g). Board on Professional Responsibility Dated December 3,2005 All members concur in this Report and Recommendation except Mr. Baach and Ms. Coghill-Howard, who did not participate.