In re Demos, Bar Registration No. 438677

• Decision Date: 26 May 2005
• Docket Number: No. 00-BG-1274.,Bar Registration No. 438677
• Citation: 875 A.2d 636
• Parties: In re Paul T. DEMOS, II, Respondent. A Member of the Bar of the District of Columbia Court of Appeals. .
• Court: D.C. Court of Appeals

875 A.2d 636

In re Paul T. DEMOS, II, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals. (Bar Registration No. 438677).

No. 00-BG-1274.

District of Columbia Court of Appeals.

Submitted January 22, 2003.¹

Decided May 26, 2005.

Paul T. Demos, II, filed a brief pro se.

Joyce E. Peters, Bar Counsel at the time the brief was filed, and John T. Rooney, Assistant Bar Counsel, were on the brief for the Office of Bar Counsel.

Before WAGNER, Chief Judge, and TERRY and WASHINGTON, Associate Judges.

TERRY, Associate Judge:

The Board on Professional Responsibility ("the Board") recommends that we impose reciprocal, but not identical, discipline² on respondent Demos for misconduct committed before the United States District Court for the District of Arizona (hereafter the "Arizona federal court"). On December 28, 1994, respondent was stricken from the Arizona federal court's roll of attorneys. The Board recommends that he be disbarred in the District of Columbia. We adopt the Board's recommendation and order respondent's disbarment.

I

Respondent passed the District of Columbia bar examination in 1983, but was not admitted to our bar at that time, for reasons explained in In re Demos, 579 A.2d 668 (D.C.1990) (en banc). Eventually, however, he was admitted on August 2, 1993.

In September of 1993, respondent applied for admission to the bar of the United States District Court for the Northern District of Texas. In his application he said he was a resident of Phoenix, Arizona, and practiced law with a firm in Tempe, Arizona. His application was approved, and respondent was admitted on October 4, 1993.

On October 25, 1993, respondent applied for admission to practice before the Arizona federal court. That court's Local Rule of Practice 1.5 provides that attorneys may be admitted to practice before the court if they are admitted "to any Federal Court" or admitted to practice in the state of Arizona. The rule further states, however, that attorneys who either reside in Arizona or have a principal office or practice in Arizona must be admitted to the bar of the State of Arizona. Therefore, according to the information he provided in his application to the Northern District of Texas, respondent needed to become a member of the Arizona bar before being admitted to practice before the Arizona federal court. Respondent sought to avoid this requirement by stating on his application for admission that he resided in an apartment in Albuquerque, New Mexico, and that his law firm was located in Washington, D.C.

Respondent was admitted to practice before the Arizona federal court by what that court later characterized as a "ministerial act," without appearing before a judicial officer.³ Soon thereafter, however, the Arizona federal court issued a show cause order "regarding the truth of the matters contained in his application." After a hearing, the Arizona federal court found that there were "numerous inconsistencies in connection with Mr. Demos' multiple application process." In particular, the District of Columbia address he listed for his law firm was merely "a mail drop address," and the "suite number" was a numbered mailbox rented from Mailboxes Etcetera. Likewise, there was no record that he had ever owned or rented property at his stated address in Albuquerque. Additionally, the Arizona federal court noted that respondent said he expected to file his 1993 tax return in Arizona, leading the court to conclude "that his statement about the Arizona residence is more likely true than the Albuquerque residence statement contained on the application." The record also showed that respondent had an Arizona driver's license. Observing that there were "ample indicia that Arizona is indeed his place of residence," the Arizona federal court concluded that respondent "intentionally and knowingly misled [the court] in furnishing information on an application for admission," and that "his application to practice in the Northern District of Texas contained more accurate and truthful information regarding his residence, but would not have permitted him to be admitted under the Local Rule to practice in this District." As a result, respondent was stricken from the roll of attorneys in the Arizona federal court on December 28, 1994. Several months thereafter, in October 1995, his admission to the bar of the United States District Court for the Northern District of Texas was revoked.

On October 3, 2000, the District of Columbia Office of Bar Counsel reported to this court the actions of the courts in Arizona and Texas.⁴ A week later, on October 10, pursuant to D.C. Bar Rule XI, § 11(d), this court suspended respondent, ordered him to show cause before the Board within ten days why identical, greater, or lesser discipline should not be imposed, and directed the Board to submit its recommendation. On November 7, 2000, Bar Counsel filed a statement with the Board asserting that the greater sanction of disbarment should be imposed.⁵ The Board, in its Report and Recommendation, agrees with Bar Counsel and recommends that respondent be disbarred in the District of Columbia.

After the Board issued its report, respondent filed with this court on January 19, 2002, a "Statement of Exception" to the Board's recommendation. At no prior time did he respond to the court's show cause order, nor did he participate in the proceedings before the Board.

II

Before we consider the merits of respondent's arguments, we must first address Bar Counsel's contention that respondent waived his right to challenge the Board's recommendation by failing to file a timely objection to the Board's stated intention to seek reciprocal discipline and by failing to participate in the proceedings before the Board. When the recommended reciprocal discipline is identical (see note 1, supra), Bar Counsel's argument is amply supported by case law. See In re Harper, 785 A.2d 311, 316 (D.C.2001) ("Treating an opposition filed for the first time in this court as equivalent to a timely response to the show cause order thwarts the operation of a disciplinary system that depends heavily on the Board's expertise in making recommendations"); In re Spann, 711 A.2d 1262, 1263 (D.C.1998) (by failing to take part in the proceedings before the Board, respondent "waived his right to show cause why he should not be subject to identical discipline"); In re Sheridan, 680 A.2d 439, 440 (D.C.1996) (same); In re Aldridge, 664 A.2d 354, 355 (D.C.1995) ("by failing even to respond to this court's order to show cause why reciprocal discipline should not be imposed, [respondent] has effectively defaulted on the issue whether such cause exists"); In re Goldsborough, 654 A.2d 1285, 1288 (D.C.1995) (respondent's silence deemed to be an admission of liability and a concession that the imposition of reciprocal discipline was warranted). These cases, however, all involved situations in which Bar Counsel sought identical reciprocal discipline. We have found no reported case in this jurisdiction in which the failure to participate in the Board's proceedings precluded an attorney from arguing against greater discipline, and we think we have an obligation at least to "satisfy [ourselves] that no obvious miscarriage of justice would result" from imposing the recommended sanction. In re Spann, 711 A.2d at 1265. Accordingly, while respondent (or any attorney) may be barred from arguing to this court that identical reciprocal discipline should not be imposed after failing to make such an argument before the Board, we see no reason to preclude him from arguing against the imposition of greater discipline than that imposed by the original disciplining court.

III

When an attorney is brought before our disciplinary system for misconduct occurring in another jurisdiction, the applicable rule states:

Reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that:

(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 District of Columbia; or

(5) The misconduct elsewhere does not constitute misconduct in the District of Columbia.

D.C. Bar Rule XI, § 11(c). This rule "creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Zilberberg, 612 A.2d 832, 834 (D.C.1992) (citation and footnote omitted). The purpose of the presumption is to avoid "an inconsistent disposition involving identical conduct by the same attorney." In re Velasquez, 507 A.2d 145, 147 (D.C.1986).

Nevertheless, the authority of the Board to recommend greater discipline, and of this court to impose it, is well established. See In re Gardner, 650 A.2d 693, 696 (D.C.1994) ("the rules do not preclude the Board from recommending the imposition of a lesser or a harsher sanction" (emphasis added)); In re Reid, 540 A.2d 754, 758 (D.C.1988) (same); see also In re Drury, 638 A.2d 60, 62 (D.C.1994) (recognizing Rule XI, § 11(f) as the source of this court's authority to deviate from imposing identical discipline).⁶ While one or more of the five exceptions listed in section 11(c) are typically cited by an attorney in urging that lesser discipline is warranted in the District of Columbia, the "substantially different discipline" exception in paragraph (4) can also be relied upon by Bar Counsel in arguing for greater discipline. See In re Coury, 526 A.2d 25, 26 (D.C.1987) (the "substantially different discipline" provision "may be...