In re Drager

• Decision Date: 08 April 2004
• Docket Number: No. 01-BG-959, 02-BG-1302.,01-BG-959, 02-BG-1302.
• Citation: 846 A.2d 992
• Parties: In re Paul DRAGER, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

846 A.2d 992

In re Paul DRAGER, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 01-BG-959, 02-BG-1302.

District of Columbia Court of Appeals.

Submitted March 4, 2004.

Decided April 8, 2004.

Before RUIZ and WASHINGTON, Associate Judges, and FERREN, Senior Judge.

PER CURIAM:

These are two, consolidated reciprocal disciplinary proceedings in which we consider the appropriate sanction, if any, for conduct that led to respondent's disbarment in New York. In the first New York proceeding, respondent received a public censure for several counts of misconduct involving neglect, misrepresentation, and failure to cooperate with a grievance committee investigation. In the second New York proceeding, in which the earlier censure was noted but not discussed, New York disbarred respondent for three instances of failure to cooperate with the state Grievance Committee's investigations of complaints against him.

Bar Counsel apparently learned of the second proceeding first and initiated a reciprocal proceeding before our Board on Professional Responsibility pursuant to D.C. Bar R. XI, § 11(c). In that proceeding, the Board concluded that this jurisdiction would not disbar an attorney for similar misconduct (three counts of failure to cooperate with bar counsel). See D.C. Bar R. XI, § 11(c)(4); In re Zelloe, 686 A.2d 1034, 1036 (D.C.1996); In re Garner, 576 A.2d 1356 (D.C.1990) (per curiam). The Board, therefore, instead recommended a thirty-day suspension coupled with a requirement that respondent demonstrate his fitness to practice law before reinstatement is ordered. See D.C. Bar R. XI, §§ 3(a)(2); 16(a); In re Delaney, 697 A.2d 1212, 1213 (D.C.1997); In re Lockie, 649 A.2d 546, 547 (D.C.1994) (per curiam).

While that recommendation was pending before this court, Bar Counsel learned the details of respondent's public censure in New York and initiated a second reciprocal proceeding before the Board. Bar Counsel recommended disbarment based on the cumulative egregiousness of the two incidents underlying the New York censure: neglect in representation of an insurance company defendant; neglect of a divorce action, coupled with misrepresentation to the client; and failure to cooperate with grievance committee investigations in disciplinary proceedings as to each. Bar Counsel also asked this court to withhold our ruling in the first New York case until the Board had acted on the second, and suggested that we then consolidate the two on appeal. We agreed with Bar Counsel's procedural request and now have both cases before us.

We recognize that in a reciprocal discipline case, D.C.App. R. XI, § 11(c) supplies a presumption that our discipline should mirror the sanction imposed by the first jurisdiction. Here, however, we have an unusual situation. As the Board recognized in its report and recommendation in the second (censure) case:

In [Bar Docket] No. 278-01, the sanction of disbarment imposed by the New York Court would surely be too heavy in this jurisdiction for the misconduct [failure to cooperate with the disciplinary investigation] that was the subject of that matter. On the other hand, in [Bar Docket] No. 508-02, the New York Court's sanction of a public censure almost certainly would be too light in this jurisdiction for the misconduct in that case, even in light of various mitigating circumstances that were found.

As a result of these anomalies, in the consolidated case the Board might have thought it should address each proceeding separately under D.C. Bar R. XI, § 11(c)(4) (permitting, in a reciprocal disciplinary proceeding, a sanction different from that imposed by the first jurisdiction if "[t]he misconduct established warrants substantially different discipline in the District of Columbia"). The Board, however, suggests another policy to guide us here based on respondent's failure to participate in either of the reciprocal proceedings before the Board, and thus on his failure to challenge New York's ultimate recommendation of disbarment in the second of its two proceedings against him. The Board recommends that we follow the approach of In re Childress, 811 A.2d 805 (D.C. 2002), where we said:

This court adheres to the principle that, in cases where neither Bar Counsel nor the attorney opposes identical discipline, "[t]he most the Board should consider itself obliged to do ... is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline — a situation that we anticipate would rarely, if ever, present itself." In re Spann, 711 A.2d 1262, 1265 (D.C.1998). Most recently in this regard we stated that, "in such circumstances, the imposition of identical discipline should be close to automatic, with minimum review by both the Board

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