In re Zilberberg

• Decision Date: 04 August 1992
• Docket Number: No. 91-SP-209.,91-SP-209.
• Citation: 612 A.2d 832
• Parties: In re Mark H. ZILBERBERG, Respondent, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

612 A.2d 832

In re Mark H. ZILBERBERG, Respondent, A Member of the Bar of the District of Columbia Court of Appeals.

No. 91-SP-209.

District of Columbia Court of Appeals.

Argued March 5, 1992.

Decided August 4, 1992.

Elizabeth A. Herman, Asst. Bar Counsel, with whom Wallace E. Shipp, Jr., Acting Bar Counsel at the time the brief was filed, and Michael S. Frisch, Asst. Bar Counsel, were on the brief, for petitioner, the Office of Bar Counsel.

Mark H. Zilberberg, respondent pro se.

Before ROGERS, Chief Judge, and TERRY and STEADMAN, Associate Judges.

TERRY, Associate Judge:

On January 5, 1987, respondent Zilberberg, an attorney, was suspended from the practice of law in the state of Virginia for three years. The Virginia State Bar Disciplinary Board found that Mr. Zilberberg had violated Virginia Disciplinary Rules 1-102 (conduct involving dishonesty, fraud, deceit, or misrepresentation), 9-102 (commingling, failure to notify client promptly of receipt of funds, and failure to pay client such funds promptly on request), and 9-103 (failure to maintain detailed records of client funds).¹ After the District of Columbia Bar Counsel forwarded a certified copy of the Virginia State Bar order to this court, we suspended Mr. Zilberberg from the practice of law in this jurisdiction and ordered him to show cause before the Board of Professional Responsibility ("the Board") why identical discipline should not be imposed. The Board recommended that Mr. Zilberberg be disbarred nunc pro tunc as of January 5, 1987. We reject the Board's recommendation and instead suspend Mr. Zilberberg for three years, nunc pro tunc as of that date.

I

The facts underlying Mr. Zilberberg's suspension in Virginia are summarized in the order of the Virginia State Bar Disciplinary Board ("the Virginia Board"). The suspension arose from his representation of Julia Brown in a personal injury case. In May 1985, shortly after Mr. Zilberberg had left private practice and gone to work as an attorney for a government agency, he received a $2500 settlement check from an insurance company in full settlement of Mrs. Brown's claim against its insured. One-third of this check constituted Zilberberg's fee. At that time he did not have a separate trust account for client funds related to his private practice,² so he deposited this check in his personal checking account. At the time of the Virginia disciplinary hearing in December 1986, he had "no current records of when the check was received or deposited."³ In addition, during the weeks immediately following his receipt of the settlement check, Mr. Zilberberg misrepresented to his client, Mrs. Brown, the status of her case and the date on which he had received the check.

On June 14, 1985, Mr. Zilberberg wrote a check for $1633.66 to Mrs. Brown, her share of the settlement proceeds, which he asked her not to deposit for several days. When eventually she did deposit it, the check was dishonored for insufficient funds. At the time Mr. Zilberberg wrote this check, his checking account balance was $301.65. Finally, on July 8, Mr. Zilberberg delivered to Mrs. Brown a certified check for the full amount due. Some time thereafter he paid Mrs. Brown an additional $130 to cover her travel expenses when she came to Washington on June 14 to pick up the check that later bounced.

Although Mr. Zilberberg does not dispute these facts—indeed, he stipulated to them in the Virginia proceeding—he urges before this court, as he did before the Board, that there were mitigating circumstances. He points out that these events took place not only while he was closing his private practice but also during a period of great personal stress, when he was going through a divorce and, at the same time, losing his eyesight to cataracts.⁴ Furthermore, he has since moved to Florida and in recent years has provided many unpaid hours of legal assistance to indigent clients on a pro bono, no-fee basis. He has received awards for some of this work from Legal Services of North Florida, has worked as a court mediator for a local Florida court, and has served as a guardian ad litem by appointment of the Florida Supreme Court. He has also retaken and passed the Multi-State Professional Responsibility Examination. He notes that he has not been previously disciplined in the District of Columbia⁵ and has not practiced in the District of Columbia since the date of his Virginia suspension. Finally, he emphasizes that the disciplinary authorities in Florida, where he now resides and practices law, chose not to impose the same disciplinary sanction as Virginia but instead issued a public reprimand.⁶ In these circumstances, Mr. Zilberberg contends that disbarment is too harsh and urges us to impose a lesser sanction.

II

Under Rule XI, § 11(c) of this court's Rules Governing the Bar, "reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence," that the case falls within one or more of five specifically enumerated exceptions. The rule thus creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction.⁷ See In re Velasquez, 507 A.2d 145, 146-147 (D.C.1986). In the instant case, the Board recommends disbarment, rather than a mere three-year suspension. It relies on the fourth of the five exceptions, which permits a different sanction (either greater or lesser, see In re Coury, 526 A.2d 25, 26 (D.C.1987)) when the misconduct proven to have occurred in the foreign jurisdiction would warrant "substantially different discipline in the District of Columbia...." We hold that the Board's recommendation is not supported by the record of the Virginia proceedings and hence that the presumption has not been rebutted. We therefore apply the presumption and impose the identical sanction—a three-year suspension—that was imposed in Virginia.

In its order of suspension, the Virginia Board made factual findings which we have summarized in part I of this opinion: that Mr. Zilberberg received the settlement check, deposited it in his own account (having no trust account at the time), misrepresented to Mrs. Brown the status of her case, kept from her the fact that he had received the check, and later gave her a check that bounced before finally delivering to her a certified check for the amount due from the settlement. The Virginia Board also found that Zilberberg had "no current records of when the check was received or deposited." Significantly lacking from the Virginia order, however, was any finding that Mr. Zilberberg's conceded misappropriation of his client's funds⁸ was intentional or the result of anything more than mere negligence. Because this is a reciprocal proceeding, with a presumption of identical discipline, the lack of such a finding is crucial—and, in this case, dispositive.

The Board based its recommendation of disbarment on the fact that there was "no indication that Zilberberg's misappropriation was inadvertent or the result of simple negligence...." Observing that in such circumstances "disbarment would be the appropriate discipline in the District of Columbia" under our decision in In re Adams, 579 A.2d 190 (D.C.1990) (en banc), the Board concluded that Zilberberg should be disbarred. This conclusion overlooks the fundamental difference between disciplinary proceedings originating in the District of Columbia, in which establishing whether a misappropriation was the result of "simple negligence" or something more is of singular importance,⁹ and a reciprocal proceeding in which it is presumed that the sanction imposed here will be the same as the one imposed in the jurisdiction from which the case came. See In re Velasquez, supra, 507 A.2d at 147.

Bar Counsel argues that the Board was justified in inferring from the record of the Virginia proceedings that Mr. Zilberberg's misappropriation was intentional, and that Zilberberg should therefore be disbarred. We do not think the Board actually drew such an inference; rather, it appears that the Board merely assumed that what it saw as the Addams rule would apply automatically in a reciprocal proceeding. We hold that such an assumption is unwarranted. To apply Addams automatically to a case such as this would result in "an inconsistent disposition involving identical conduct by the same attorney." In re Velasquez, supra, 507 A.2d at 147. Such a result is beyond the scope of the Addams opinion and clearly was not addressed by the Addams court.

The issue before us, therefore, is whether the Virginia record is sufficient to justify a greater sanction than the Virginia Board imposed—i.e., sufficient to overcome the presumption that our sanction will be the same as Virginia's. We conclude that it is not. We hold that in a reciprocal proceeding, when a greater sanction is sought in the District of Columbia, the record must affirmatively show that a greater sanction is warranted—as it did, for example, in In re Reid, 540 A.2d 754 (D.C.1988), and In re Larsen, 589 A.2d 400 (D.C.1991). If the existing record from the original disciplining jurisdiction is insufficient for that purpose, then the record must be augmented before a greater sanction may be imposed. The usual means of augmentation will probably be, we expect, a de novo hearing before a hearing committee. See D.C. Bar Rule XI, § 11(g)(2).¹⁰

In the case before us, Mr. Zilberberg's misappropriation is undisputed, but there is some doubt about whether it was intentional or merely the result of "simple negligence." The Virginia Board's findings of fact shed no light on the critical issue of whether the misappropriation was knowing and intentional or merely negligent.¹¹ We note that at the time the misconduct occurred, Mr. Zilberberg was not only going through the trauma of closing down his practice but was also undergoing a great deal of personal stress due to the simultaneous failure of his marriage and his...