IN RE SIBLEY

• Decision Date: 11 March 2010
• Docket Number: No. 08-BG-372.,08-BG-372.
• Citation: 990 A.2d 483
• Parties: In re Montgomery Blair SIBLEY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 464488).
• Court: D.C. Court of Appeals

990 A.2d 483

In re Montgomery Blair SIBLEY, Respondent A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 464488).

No. 08-BG-372.

District of Columbia Court of Appeals.

Argued October 15, 2009.

Decided March 11, 2010.

Montgomery Blair Sibley, pro se.

William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before FISHER and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

THOMPSON, Associate Judge:

On March 7, 2008, the Supreme Court of Florida imposed upon respondent Montgomery Blair Sibley a three-year suspension from the practice of law in that jurisdiction, with his reinstatement conditioned upon a showing of fitness. The Board on Professional Responsibility ("the Board") has recommended that this court impose identical reciprocal discipline as to practice in the District of Columbia. Respondent contends that the presumption in favor of identical reciprocal discipline is overcome in this case, because the proceedings in Florida did not meet the requirements of due process and because there was an infirmity of proof to establish the charged misconduct. We conclude that respondent has failed to support his contentions with clear and convincing evidence, and we therefore adopt the Board's recommendation.

I.

Under the terms of respondent's divorce-settlement agreement, which was incorporated into a court order of divorce upon his move from South Florida, respondent was required to pay his former wife $4,000 each month to fulfill his child-support obligation to their three children. Respondent left Florida in May of 2000 and moved to the District of Columbia. Thereafter, he failed to pay any child support for 25 months, falling $100,000 behind in his payments. On August 5, 2002, the Circuit Court for the Eleventh Judicial Circuit of Florida (the "Florida Family Court") issued an order requiring respondent to pay $30,000 of the past-due child support by October 1, 2002, $30,000 by November 1, 2002, and $40,000 by December 1, 2002, while also satisfying his ongoing child-support obligation of $4,000 per month. At a hearing on November 22, 2002, finding that as of that date respondent had failed to make any of the required payments, the court held respondent in civil contempt and ordered him incarcerated until he purged himself of contempt. The court notified the Florida Bar of the contempt finding.

In a separate matter, on November 3, 2004, the Florida Third District Court of Appeal ("the Third District") entered an order sanctioning respondent for filing "vexatious and meritless litigation." Sibley v. Sibley, 885 So.2d 980, 988 (Fla.Dist. Ct.App.2004). The court found that respondent had "repeatedly tried to re-litigate matters decided in earlier proceedings, without any legitimate basis to do so," id. at 986, and had filed over three dozen non-meritorious appeals or lawsuits, including twenty-seven appellate proceedings in the Third District and "at least twelve actions in federal court against judges who have been assigned to his cases." See id. at 986, 987-88 & app. (cataloguing respondent's litigation history). The Third District Court order precluded respondent from any further self-representation in that court. Id. at 988.

On July 14, 2006, the Florida Bar filed a complaint against respondent, charging him with violating Florida Bar Rules 4-8.4(h) (willful refusal to pay a child-support obligation) and 4-3.1 (non-meritorious claims and contentions). The Supreme Court of Florida appointed a Referee to hear the matter. The Referee found that respondent had willfully failed to pay child support and had initiated meritless litigation, in violation of Florida Bar Rules 4-8.4(h) and 4-3.1, and recommended that respondent be suspended for three years. On March 7, 2008, the Supreme Court of Florida approved the Referee's report and ordered the recommended suspension (which, under Florida law, triggers a requirement to show fitness for reinstatement).

Respondent advised the District of Columbia Office of Bar Counsel of the Florida discipline, and Bar Counsel notified this court on April 11, 2008. On May 8, 2008, we suspended respondent on an interim basis and referred the matter to the Board for its recommendation as to whether we should issue a final order imposing identical reciprocal discipline, or whether a de novo disciplinary proceeding was warranted. In its Report and Recommendation dated November 14, 2008, the Board recommended that this court impose identical reciprocal discipline.

II.

With regard to attorney-discipline cases that come to us as reciprocal matters, D.C. Bar R. XI, § 11(c) establishes a rebuttable presumption in favor of this court's imposition of discipline identical to that imposed by the original disciplining jurisdiction. See In re Zilberberg, 612 A.2d 832, 834 (D.C.1992); see also In re Hallal, 944 A.2d 1085, 1087 (D.C.2008). The presumption applies unless the party opposing discipline (or urging non-identical discipline) shows, by clear and convincing evidence, that an exception should be made on the basis of one or more of the grounds set out in Rule XI, § 11(c)(1)-(5).¹ In re Zdravkovich, 831 A.2d 964, 969-70 (D.C. 2003). Rule XI, § 11(c) imposes a "rigid standard," as to which exceptions "should be rare." Id. at 968, 969. "Reciprocal discipline proceedings are not a forum to reargue the foreign discipline." Id. at 969.

III.

Respondent argues that an exception is warranted in his case on the basis of Rule XI, § 11(c)(1) and (2). He relies on the following procedural history as the basis of his claims that the Florida proceedings were lacking in due process and that there was an infirmity of proof to support the Florida discipline.

During the proceedings before the Florida Referee, the Florida Bar filed a motion to strike the affirmative defenses that respondent raised in his answer to the Florida Bar Complaint.² Respondent asserts that the Referee granted the motion to strike "without affording respondent an opportunity to be heard in opposition." The Referee also did not rule on a request by respondent for the issuance of subpoenas duces tecum to the Florida Family Court judge who held respondent in contempt and to five judges of the Third District, all of whom respondent sought to question about what he alleges were the "true motives" and the bias and hostility toward respondent that lay behind their orders adverse to respondent.³

The Referee explained in his final Report that, to schedule the final hearing, he left messages for respondent, seeking to identify a time when he would be available. Receiving no response from respondent, on March 28, 2007, the Referee issued an order setting April 16, 2007, as the hearing date. Respondent contends that the Referee never checked with him about his availability for a hearing, and that he did not receive the hearing notice until April 5, 2007. At that time, he asserts, he immediately made a motion to continue the hearing for two weeks or to appear by telephone, explaining that he would be unable to attend in person on April 16 because of a professional commitment (involving a high-profile case in the District). The Referee denied the motion for a continuance. Respondent contends that the Referee also denied his request to participate by telephone. There is no indication in the record that the Referee specifically ruled on respondent's request to participate by telephone, but the Referee's Report states that "Respondent failed to contact either the undersigned or counsel for the Florida Bar by telephone, facsimile, or electronic mail," and thus the "final hearing proceeded without the Respondent being present." Thereafter, both parties submitted proposed reports on April 20, 2007, and on June 28, 2007, the Referee issued his final Report. Respondent asserts that the Referee adopted almost verbatim the Florida Bar's proposed order.

The matter proceeded to review by the Florida Supreme Court. That court denied respondent's request to depose the Referee about what respondent alleged were factual misrepresentations in the Referee's Report. The Florida Supreme Court also denied respondent's request for oral argument and his motion to disqualify the justices of the court. The court adopted the Referee's Report and recommendation, and through a brief per curiam order, suspended respondent.⁴ The court did not address the arguments that respondent raised in his petition for review: that he was denied a fair and impartial judiciary, that he was not put to charges made under oath, that he was denied the right to call and confront witnesses in his defense in a quasi-criminal proceeding, that his affirmative defenses were stricken improperly, and that he was being punished for having pursued federal and state court remedies.

IV.

Citing the foregoing procedural history, respondent argues that he "was not given a full disciplinary hearing in Florida" and thus was deprived of due process. We begin our analysis by noting that the exception described in Rule XI, § 11(c)(1) requires clear and convincing evidence that "the procedure in the original disciplining jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process." (Emphasis added). Respondent claims a deprivation of due process on the basis of various purported deficiencies in the Florida proceedings, only some of which ostensibly relate to "notice" and "opportunity to be heard." We address respondent's arguments, however, generously construing them as arguments that he was entitled to, but deprived of, notice of properly brought charges and an opportunity to have his case heard without undue delay by qualified and impartial judicial officers. See Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (explaining that due...