In re Drury, 96-BG-156.

• Citation: 683 A.2d 465
• Decision Date: 10 October 1996
• Docket Number: No. 96-BG-156.,96-BG-156.
• Parties: In re John E. DRURY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: Court of Appeals of Columbia District

683 A.2d 465

In re John E. DRURY, Respondent.

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

No. 96-BG-156.

District of Columbia Court of Appeals.

Submitted September 10, 1996.

Decided October 10, 1996.

Before FERREN, SCHWELB and REID, Associate Judges.

REID, Associate Judge:

This matter, involving reciprocal discipline, is before us for the second time. Our first opinion is set forth in In re Drury, 638 A.2d 60 (D.C.1994) (Drury I). There we considered whether "the Board on Professional Responsibility may recommend an increased sanction as well as identical discipline or a lesser sanction" in a reciprocal discipline case. Id. at 63. Because we concluded that the Board could recommend an increased sanction, we remanded the case to the Board so that the respondent could have a "renewed opportunity" to address the sanction issue. Id. Following the remand hearing relating to the appropriate sanction, the Board recommends an increased sanction, as it did in Drury I. Although Virginia imposed a public reprimand with terms, the Board recommends a nine-month suspension and proof of fitness for reinstatement. We now adopt the Board's recommendation.

I.

In 1992, the Eighth District Subcommittee of the Virginia State Bar "publicly reprimanded respondent with terms." The terms required respondent to obtain psychological counseling, successfully complete two continuing legal education seminars, agree to monitoring by other lawyers, and take other steps toward rehabilitation. After being informed of Virginia's action against respondent, this court ordered the Board on Professional Responsibility "to recommend ... whether reciprocal discipline should be imposed or whether the Board, instead, elects to proceed de novo pursuant to Rule XI, § 8." The Board decided to recommend reciprocal discipline. In relying on Rule XI, § 11(c)(4), the Board determined that "a substantially different sanction is warranted in the District of Columbia than was imposed by the Virginia Subcommittee." Consequently, it recommended suspension for a period of nine months and the showing of fitness prior to reinstatement. The respondent filed an appeal.

In its decision in Drury I, supra, this court set forth the details as to (1) why the respondent was disciplined in 1992 by Virginia for neglect of a client matter in the late nineteen eighties and early nineteen nineties, and for failure to withdraw from representation after suspension from practice, and (2) why the Board took steps to impose reciprocal discipline. Drury I further examined Rule XI, §§ 11(c) and 11(f) regarding the standards for reciprocal discipline and action which may be taken by this court. After its examination this court said:

Given the presumption in favor of identical discipline, the form of the show cause order that was issued by this court, the fact that Bar Counsel supported identical discipline, the Board's correspondence to respondent regarding Bar Counsel's recommendation, the wording of the present rule, and the nature of the foreign jurisdiction's record, we conclude that, now with knowledge that the Board may recommend an increased sanction as well as identical discipline or a lesser sanction, respondent is entitled, as a matter of fairness, to a renewed opportunity to respond to the show cause order and to the letter from the Board in accordance with the applicable rules of this Court and of the Board, and to further consideration by the Board of the appropriate course of action and recommendation in light thereof.

638 A.2d at 63 (footnotes omitted).

On remand after our Drury I decision, the Board ordered "the case to be sent to a hearing committee for a hearing and recommendation on the sole issue of sanction." See Order of the Board on Professional Responsibility, June 1, 1994, at 2. The Board characterized the matter as "one of reciprocal discipline" and asked the hearing committee to address three issues: "(1) whether respondent had a psychological disorder that would meet a Kersey-type sanction; (2) whether these problems can be shown to have caused his misconduct under the rules of this jurisdiction; and (3) whether respondent is sufficiently rehabilitated to practice law without danger to the public." Id. at 1-3. Thus, although the hearing committee was to conduct an evidentiary hearing on respondent's psychological disorder and on the causal relationship of that disorder to respondent's professional misconduct, the hearing necessarily focused, in the end, not on a de novo Kersey-type determination, but on whether there was clear and convincing evidence to overcome the strong presumption supporting the Virginia authority's finding of a Kersey-type causal relationship in this case. See Drury I, 638 A.2d at 62-63 (citing D.C.Bar R. XI, § 11(f)) and In re Zilberberg, 612 A.2d 832, 834 (D.C.1992).

During his late October 1994, hearing following remand, the respondent presented evidence from his psychotherapist, Dr. Bruce Copeland.¹ Dr. Copeland first consulted with the respondent about his personal concerns in Summer 1989, and began to see him on a regular basis beginning in September 1991. He concluded that the respondent suffered from significant depression (dysthymia) and a mixed personality disorder of mild to moderate severity at the time he neglected his client matter, and failed to withdraw from representation following his suspension from practice. Dr. Copeland opined that the depression "had been existing for at least a period of several years," and constituted "the major" disorder. He first saw the respondent on a weekly basis at the time of respondent's 1994 hearing, and held treatment sessions with him two to three times a month. He testified that the respondent "has made great strides ... and is not in danger in his practice of law." Furthermore, the respondent no longer "meets criteria for clinical depression."

Dr. Donald Vogel, a psychiatrist who testified on behalf of Bar Counsel, said the respondent suffered from a personality disorder, but was not "currently depressed" and "did not have a major depression, by history." However, Dr. Vogel did not see the respondent during his depression and did not review the psychological tests that Dr. Copeland administered during respondent's depression.

The respondent described his compliance with the terms of his Virginia public reprimand, including his required psychological counseling; efforts to streamline his law practice and to make his law office more efficient; completion of two continuing legal education courses; and notification that he had passed the multi-state ethics examination. Stewart Enonomou, Esq., the respondent's monitor, confirmed his compliance with the requirements imposed on him by the Virginia Subcommittee.

In its Report and Recommendation, the Hearing Committee first concluded that at the time of his misconduct in Virginia, the respondent suffered "from a psychological disorder or disability that could merit the imposition of a Kersey-type sanction." See In re Kersey, 520 A.2d 321, 326 (D.C.1987).² Although the Hearing Committee discussed the testimony by Dr. Copeland and Dr. Vogel regarding the respondent's personality disorder, it emphasized Dr. Copeland's conclusion: "there's no doubt in my mind that there was a clinical depression, both prior to — back at least in 1989, when I saw him initially, and in 1991, when I saw him subsequent to the conduct in question, that there were clearcut symptoms of depression present." Second, the Hearing Committee determined that the "respondent has shown by a preponderance of the evidence that his professional conduct was `substantially affected' by the psychological impairment we have found to exist." Third, the Hearing Committee found "substantial evidence ... that the respondent is substantially rehabilitated from his psychological condition."<sup>3</sup> Finally, the Hearing Committee recommended the suspension, stay and probation sanction set forth above because: (1) "respondent's pattern of misconduct and record of prior discipline is extensive";<sup>4</sup> (2) "this jurisdiction has never imposed a sanction of `reprimand with terms,' either as original or reciprocal discipline"; and (3) "both Dr. Copeland and Dr. Vogel concluded that he should remain in therapy."

The Board adopted the Report and Recommendation of the Hearing Committee, but added its views on two issues. First, with regard to the disagreement of the experts concerning whether the respondent suffered from clinical depression at the time of his misconduct, the Board stated: "though the Committee found evidence for depression, it did not necessarily conclude that the proof rose to the level required in an original case in the District of Columbia to justify mitigation based on disability."⁵ Second, the Board emphasized that a personality disorder (as opposed to clinical depression), standing alone, could not serve as the basis for a mitigated sanction.

The Board recommends a nine-month suspension and a requirement to show fitness to practice prior to reinstatement. However, because the respondent proved that he suffered from clinical depression at the time he violated the rules of professional responsibility, and because of other mitigating factors, the Board recommends that the suspension and the fitness requirement be stayed while the respondent serves a two year period of probation. The Board also recommends that the respondent comply with the following conditions of probation: (a) avoid any further disciplinary violations; (b) remain in counseling throughout the period of his probation; and (c) follow any recommendations of his current therapist (Dr. Copeland). Bar Counsel did not take exception to the Board's report and recommendation, and the respondent filed no objection to it.

II.

In our review of disciplinary cases, "we defer to the Board's recommended disposition unless the sanction is unwarranted or inconsistent with sanctions for comparable...