In re Day

• Decision Date: 10 September 1998
• Docket Number: No. 96-BG-1244.,96-BG-1244.
• Citation: 717 A.2d 883
• Parties: In re Karen S. DAY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

717 A.2d 883

In re Karen S. DAY, Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 96-BG-1244.

District of Columbia Court of Appeals.

Argued December 2, 1997.

Decided September 10, 1998.

George W. Jones, Washington, DC, for Respondent.

Michael S. Frisch, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel, was on the brief, for the Office of Bar Counsel.

Before STEADMAN, RUIZ and REID, Associate Judges.

RUIZ, Associate Judge:

In 1988, the Florida Bar initiated an investigation of Respondent, Karen S. Day, for misappropriation of client trust account funds. Day resigned from the Florida Bar without leave to seek reinstatement before the investigation was completed. Day takes exception to the Report and Recommendation of the Board on Professional Responsibility (the "Board"), which recommends that this court disbar Day from practice in the District of Columbia as reciprocal discipline for conduct that caused her to voluntarily resign from the Florida Bar. Bar Counsel agrees with the Board's recommendation.

Taking exception to the Board's recommendation, Day argues that disbarment is not warranted in this case because at least three of the five exceptions to mandatory reciprocal discipline, under D.C.Bar Rule XI, § 11(c), apply to her case. Specifically, she claims that there is no evidence of any wrongdoing that would have warranted disbarment under the Code of Professional Responsibility in effect in this jurisdiction in 1988. In this regard, Day places great significance on the distinct Florida disciplinary rules that do not require an admission of wrongdoing as a condition of voluntary resignation. We conclude that because Day's resignation from the Florida Bar while a disciplinary proceeding was pending against her constituted "discipline," and none of the exceptions to reciprocal discipline apply to her case, the Rules of the District of Columbia Bar require the imposition of reciprocal discipline. We also conclude that Day's due process rights are not violated by the imposition of reciprocal discipline.

I.

Day was admitted to the Bar of the District of Columbia Court of Appeals, upon examination, on December 18, 1981. In 1982, she moved to Florida to be closer to her family. She was admitted to the Bar of the Supreme Court of Florida, upon examination, on November 29, 1982.

Starting in 1985, Day experienced a number of setbacks and adversity in her personal life.¹ She also began to have problems in her professional life. On March 3, 1988, the Supreme Court of Florida publicly reprimanded Day for professional misconduct because she "notarized numerous affidavits without requiring the affiants to personally appear before her." During this time, while undergoing a number of personal difficulties, Day discovered that money was missing from her client escrow account when checks written on the account were returned for insufficient funds. Her husband admitted to her that he had stolen money from the escrow account. The Florida Bar instituted a disciplinary investigation of the missing funds. According to Day, her husband pressured her not to testify against him. She explains that instead of fighting to "clear her name and save her career," she chose to resign because she "could not endure the ordeal of testifying against the father of my children in formal disciplinary proceedings."

On July 2, 1988, Day filed a Petition for Leave to Resign in the Supreme Court of the State of Florida. The Florida Bar opposed the petition on a number of grounds, including the pending disciplinary investigation for trust account violations and misappropriation, her failure to cooperate with the investigation and because she did not specify a period of resignation.

On September 22, 1988, Day filed an Amended Petition for Leave to Resign pursuant to Florida Bar Rule 3-7.11 with the Supreme Court of Florida seeking leave to resign permanently, without leave to reapply. In her Amended Petition, Day noted her previous public reprimand, and acknowledged the pendency of a Florida disciplinary investigation for failure to properly maintain trust accounts. On November 17, 1988, the Supreme Court of Florida approved Day's amended petition effective December 19, 1988. Since May 1995, Day has established a practice limited to federal immigration matters. Day's limited legal practice is purportedly authorized by her D.C.Bar license as indicated in her business card: "Admitted to Washington, D.C.Bar only, practice limited to Immigration and International Law."

Day failed to report the action of the Florida Supreme Court accepting her permanent resignation to the District of Columbia Bar. This jurisdiction did not learn of Day's resignation in Florida until May 1996, when the Florida Bar authorities brought it to Bar Counsel's attention. Upon being advised of Day's permanent disbarment in Florida, this court entered an order suspending Day from the practice of law in the District of Columbia on November 21, 1996, and directing Bar Counsel to inform the Board of his position regarding reciprocal discipline.²

II.

A threshold issue in this case is whether resignation under Rule 3-7.11 of the Florida Bar Rules constitutes "discipline" for the purpose of reciprocal discipline in this jurisdiction. The issue was recently decided by this court in the case of In re Richardson, 692 A.2d 427 (D.C.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1056, 140 L.Ed.2d 118 (1998). There, this court determined that resignation under Rule 3-7.11 was discipline for the purposes of Rule XI, § 11.³ Id. at 428. Richardson made an identical claim to the one Day presents here, relying on the fact that his resignation was voluntary and that neither the Florida Bar nor the Florida Supreme Court "found him guilty of any misconduct." Id. at 430-31. While recognizing that "when disciplinary proceedings have been initiated, Florida does not require the respondent attorney to admit the charges as a condition of the attorney's resignation from the bar," this court concluded "that the Supreme Court of Florida's acceptance of Richardson's resignation while a disciplinary proceeding was pending against him constituted `discipline' both in Florida and under our Rule XI § 11." Id. at 431. Similarly in this case, the Florida Supreme Court's acceptance of Day's permanent resignation in the face of a pending disciplinary proceeding was "discipline" upon which we may impose reciprocal discipline under Rule XI, § 11.

III. Due Process

Day contends that reciprocal disbarment would violate her right to due process of law because there has been no adjudication of guilt and the uncontested evidence she has presented demonstrates no wrongdoing on her part. Bar Counsel replies that Day received from the Florida disciplinary proceedings all the process she was due there, and that she knowingly waived her right to a hearing. Having done so, she cannot now complain that she is subject to the collateral consequences of her choice.

An attorney has a right to procedural due process in a disciplinary procedure. See In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); see also In re Richardson, 692 A.2d 427, 433 (1997); In re Colson, 412 A.2d 1160, 1164 (D.C.1979) (en banc). Due process is afforded when the disciplinary proceeding provides adequate notice and a meaningful opportunity to be heard. See Boddie v. Connecticut, 401 U.S. 371, 378-79, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). However, it is well established that an individual can waive any process to which he or she has a right. See D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972).

In Richardson, we addressed and rejected a similar challenge to imposition of reciprocal discipline based on the Florida resignation procedure. Richardson argued that application of Rule XI, § 11 violated his constitutional right to due process by allowing reciprocal discipline upon resignation from the Florida bar, without a hearing in D.C., to determine whether he had knowingly and voluntarily waived his right to a hearing in Florida. He also argued that he did not "receive due process in the District of Columbia because his resignation in Florida resulted in cancellation of the evidentiary hearing on the merits of the charges against him...." In re Richardson, supra, 692 A.2d at 434. This court reasoned that

Richardson's loss of an evidentiary hearing in Florida was his own choice; by electing to resign, he waived his right to a hearing where he could have contested the charges. We also agree that, as a consequence of Richardson's Florida waiver, we are entitled to rely—for purposes of final, reciprocal discipline—on the disciplinary result in Florida, properly certified to this court, without affording Richardson the evidentiary hearing on the Florida charges he elected to forego earlier. Put succinctly: If Richardson validly waived an evidentiary hearing in Florida, he is deemed to have waived any evidentiary hearing on the same charges that would otherwise be required by due process before he could be suspended from the practice of law in this jurisdiction.

Id.

The reasoning in Richardson applies with equal force to the case at hand. Day does not contend that she had no notice of the nature of the charges against her in Florida and of the sanction if she elected to resign in lieu of defending the disciplinary proceeding. Day had a choice as to which disciplinary route she would follow. She could have continued with the disciplinary proceeding or she could have allowed the Supreme Court of Florida to consider her initial petition to resign, over the Florida Bar's objection, which could have allowed her to reapply after three years. See The Florida Bar, 428 So.2d 662 (Fla.1983) (per curiam). Instead, Day filed an amended petition agreeing to resign without leave to reapply which allowed her to permanently avoid disciplinary proceedings there....