Citation698 A.2d 434
Case DateJuly 31, 1997
CourtCourt of Appeals of Columbia District
698 A.2d 434
In re Ronald R. BENJAMIN, Respondent A Member of the Bar of the District of Columbia Court of Appeals.
No. 94-BG-1318.
District of Columbia Court of Appeals.
Submitted May 14, 1996.
Decided July 31, 1997.

Marya C. Young, Binghamton, NY, was on the brief for respondent.

Leonard H. Becker, Bar Counsel, and Michael S. Frisch, Senior Assistant Bar Counsel, were on the brief for petitioner, the Office of Bar Counsel.

Before TERRY and FARRELL, Associate Judges, and PRYOR, Senior Judge.

TERRY, Associate Judge:

Respondent Benjamin, a member of the bars of New York and the District of Columbia, was censured by the New York Supreme Court, Appellate Division, Third Department, for two violations of Disciplinary Rule (DR) 1-102(A)(4) of the New York Code of Professional Responsibility. In re Benjamin, 205 A.D.2d 978, 613 N.Y.S.2d 960, appeal dismissed, 84 N.Y.2d 863, 642 N.E.2d 327, 618 N.Y.S.2d 8 (1994). Upon receipt of the Third Department's order, this court referred the matter to the Board on Professional Responsibility ("the Board") for a reciprocal disciplinary proceeding. The Board recommended an identical sanction, and respondent filed an exception. We agree with the Board's recommendation and order that respondent be publicly censured.


Respondent Benjamin practices law in Binghamton, New York. In July 1992 a disciplinary proceeding against him was begun in New York after Justice Robert E. Fischer ofthe New York Supreme Court filed a complaint. Mr. Benjamin had appeared in various matters before Justice Fischer and, in one case, had requested that the justice recuse himself.1 Shortly thereafter, Mr. Benjamin wrote a letter to Justice Fischer asking him to recuse himself in all cases in which Benjamin appeared as counsel. According to the letter, this request was based on information from another attorney that the justice had said he had to have a court reporter present during proceedings involving Mr. Benjamin because of Benjamin's "inability to know and relate the truth." Justice Fischer agreed to recuse himself in all pending matters in which Mr. Benjamin appeared as counsel, but also sent a letter to the New York Committee on Professional Standards reporting four instances of what the justice "deemed to be unprofessional [conduct]."

After Mr. Benjamin refused to accept a private admonition, the Committee on Professional Standards filed a "petition of charges and specifications" with the Third Department, alleging that Mr. Benjamin had attempted to mislead and deceive the court and opposing counsel in three separate cases, in violation of DR 1-102(A)(4).2 In the fall of 1993 three days of hearings were held before another New York judge who had been appointed as a referee. Mr. Benjamin participated in those hearings and was represented by counsel. After the hearings ended, the referee made detailed findings of fact and concluded that Mr. Benjamin's actions, "taken together, demonstrate a course of conduct on the part of Respondent intended to mislead, misguide, misinform, deceive, circumvent and confuse Court and counsel." The referee's report was confirmed by the Third Department as to two of the three specifications of misconduct, and Mr. Benjamin was publicly censured.

The two violations for which Mr. Benjamin was censured arose out of two different cases. In the first, Mr. Benjamin represented the plaintiff husband in a divorce proceeding. The defendant wife filed a motion seeking various forms of relief, including an order awarding her exclusive occupancy of the marital home. In an unrecorded proceeding before Justice Fischer, Mr. Benjamin represented to the court that "the issues involved had been fully resolved in the Family Court," so that the wife's motion was barred by res judicata. Justice Fischer scheduled the matter for an evidentiary hearing and specifically directed Mr. Benjamin, in writing, to produce any Family Court records by a specified date. Benjamin failed to do so, but continued at the hearing to press a claim of res judicata or collateral estoppel. The orders that Mr. Benjamin did produce at the hearing showed only that the Family Court had once granted a petition by the wife for an order of protection from the husband, but that this protection provision was dropped from a later order. In light of this evidence, the Third Department agreed with the referee and found that Mr. Benjamin "attempted to mislead [the] trial court, by asserting a specious res judicata or collateral estoppel defense."

In the second matter, a wrongful death action, Mr. Benjamin represented the decedent's estate. He initially sued the county sheriff, claiming that the decedent had died as a result of inadequate and delayed rescue efforts following a truck accident. He later moved to amend the complaint by adding eight new defendants. Justice Fischer granted the motion and, in a written order, directed that service of the amended complaint be made within twenty days from the date of the order. Mr. Benjamin, however, did not serve the amended complaint or seek additional time to do so. Several months later Mr. Benjamin sought leave to file a second amended complaint. To excuse his failure to serve the first amended complaint, he filed an affidavit in which he stated:

Your deponent respectfully submits that the reason the Amended Complaint was not timely filed was that the parties had agreed among themselves to continue the discovery to develop additional facts sothat when the Amended Complaint was served it would not need further amendments.

After counsel for the defendants denied the existence of such an agreement, Mr. Benjamin admitted on the record that there was no "formal" or "express" agreement.3 On these facts, the Third Department found that Mr. Benjamin had attempted to mislead the trial court "by inaccurately asserting in a sworn affidavit that he had failed to timely serve an amended complaint . . . because the parties had agreed among themselves to continue discovery so that the amended complaint, when served, would not require additional amendments. . . ."

Despite Mr. Benjamin's prior disciplinary record, see In re Benjamin, 129 A.D.2d 886, 514 N.Y.S.2d 526, appeal dismissed, 70 N.Y.2d 666, 512 N.E.2d 542, 518 N.Y.S.2d 959 (1987), resulting in reciprocal discipline in this jurisdiction, In re Benjamin, No. 87-1030 (D.C. May 17, 1988),4 the Third Department ordered only a public censure. While the court condemned Mr. Benjamin's actions and acknowledged his prior record, it did not find his misconduct, viewed in context, to be "so egregious as to warrant suspension or disbarment."

Upon receipt of a certified copy of the Third Department's order, we referred the matter to our Board on Professional Responsibility for a reciprocal disciplinary proceeding. After reviewing the New York record, the Board concluded that identical discipline should be imposed. The Board ruled first that the misconduct found in New York would also constitute misconduct in the District of Columbia. It then rejected Mr. Benjamin's assertion that the referee's conclusions, which formed the basis of the Third Department's censure order, were not supported by the record.5 In so ruling, the Board first addressed the fact that New York uses a lower standard of proof in attorney discipline cases than the District of Columbia.6 Despite this procedural disparity, the Board reasoned that a "`fair preponderance of the evidence' standard in an attorney discipline proceeding does not, on its face, present `such an infirmity of proof' . . . [or] such `grave injustice'" as to preclude reciprocal discipline.

Turning to the merits, the Board found that Mr. Benjamin had failed to show an infirmity of proof or grave injustice by clear and convincing evidence. According to the Board, Mr. Benjamin's arguments "reduce[d] to four basic points":

1. The referee and Appellate Division erred in concluding that Respondent urged res judicata or collateral estoppel on the marital residence issue in the divorce case. Respondent contends that his argument was based only on the physical harassment issue, and was supported by New York law establishing that a Family Court decision on spousal abuse or harassment has preclusive effect in other New York civil proceedings.

2. The referee and Appellate Division incorrectly concluded that Respondent admitted that there was no agreement among counsel to delay service of the First Amended complaint in the wrongful death case. Respondent only admitted thatthere was no "formal" or "express" agreement.

3. Disciplinary action based on the statements Respondent made in these instances violates his First Amendment rights, and will have a chilling effect on advocacy for clients.

4. The complaining Justice, according to Respondent, filed the complaint in retaliation for Respondent's recusal motion.

Responding to Mr. Benjamin's first argument, the Board pointed out that the New York authorities did not discipline Mr. Benjamin because his legal arguments were weak, but because of "his misstatement of the fact of what the Family Court had done." As to his second point, the Board said that "whether Respondent misstated the facts does not rest solely on whether the agreement was `express' or `formal.'" Rather, "the referee concluded that it simply `was not true' that the parties had agreed among themselves to continue discovery." The Board accepted this finding, stating that "[t]he evidence available . . . show[ed] nothing beyond Respondent's own claim to support the notion that there was any such agreement."7

Having rejected Mr. Benjamin's first two contentions, the Board concluded that his First Amendment claim resolved itself. The Board explained:

There is no First Amendment right to misrepresent facts to courts. We have weighed this argument with care, however, because discipline based on misrepresentations made in litigation could have the effect Respondent fears. Many contested...

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