In re Fitzgerald, No. 07-BG-1366.

• Decision Date: 22 October 2009
• Docket Number: No. 07-BG-1366.
• Citation: 982 A.2d 743
• Parties: In re Desmond P. FITZGERALD, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 461613).
• Court: D.C. Court of Appeals

982 A.2d 743

In re Desmond P. FITZGERALD, Respondent A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 461613).

No. 07-BG-1366.

District of Columbia Court of Appeals.

Argued September 21, 2009.

Decided October 22, 2009.

Desmond P. FitzGerald, pro se.

William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before REID and THOMPSON, Associate Judges, and KING, Senior Judge.

THOMPSON, Associate Judge:

Respondent Desmond P. FitzGerald has been a member of the District of Columbia Bar, with inactive status, since January 8, 1999. On September 24, 2007, the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts ("Massachusetts Board") issued an Order of Public Reprimand to respondent for violating Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.7(b) (personal conflict of interest), and 1.16(a)(1) (failure to withdraw representation) of the Massachusetts Rules of Professional Conduct.¹ The Massachusetts Board notified Bar Counsel in this jurisdiction of respondent's disciplinary violations, and Bar Counsel filed a certified copy of the Order of Public Reprimand with this court on December 13, 2007. We issued an interim order on January 7, 2008, directing the Board on Professional Responsibility (the "Board") to advise the court as to whether (1) identical, greater or lesser discipline should be imposed as reciprocal discipline, or (2) the Board elected to proceed de novo. The Board issued its report on July 24, 2008, recommending that the court impose a 30-day suspension as "substantially different reciprocal discipline."

I. The Governing Rule

If the Massachusetts discipline had been a suspensory sanction or disbarment, we would proceed immediately to our analysis of whether to accept the Board's recommendation, employing the "rebuttable presumption that the sanction imposed by this court in a reciprocal discipline case will be identical to that imposed by the original disciplining court." In re Beattie, 956 A.2d 84, 85 (D.C.2008) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C.1992)). However, effective August 1, 2008, this court amended D.C. Bar R. XI, § 11(c) so that, in pertinent part, it now reads as follows:

Standards for reciprocal discipline. Reciprocal discipline may be imposed whenever an attorney has been disbarred, suspended, or placed on probation by another disciplining court. It shall not be imposed for sanctions by a disciplining court such as public censure or reprimand that do not include suspension or probation. For sanctions by another disciplining court that do not include suspension or probation, the Court shall order publication of the fact of that discipline by appropriate means in this jurisdiction.

D.C. Bar R. XI, § 11(c) (italics added). Thus, amended Rule XI, § 11(c) establishes a change in our procedure for handling certain cases that we previously treated as reciprocal-discipline cases. If the amended rule applies in the instant case, it dictates that we impose no reciprocal discipline, but that we instead order Bar Counsel to publish the fact of the Massachusetts Order of Public Reprimand.

We did not state in the amended rule whether it would apply to cases already pending before us as of August 1, 2008 (which was the posture of this case once the Board filed with us its July 24, 2008 Report and Recommendation).² Ordinarily, when there is a change in a statute or rule that effects a change in procedure, the amended law may be applied to all cases that are pending on the effective date of the change.³ See DeGroot v. DeGroot, 939 A.2d 664, 670 n. 5 (D.C.2008) (citing Duvall v. United States, 676 A.2d 448, 450 (D.C.1996) ("laws which provide for changes in procedure may properly be applied to conduct which predated their enactment")).⁴ That principle permits us to follow the amended rule in this case. As Bar Counsel points out, however, we did not follow this course in our recent opinion in In re Amberly, 974 A.2d 270 (D.C.2009). The opinion in that case notes that, on June 13, 2008, after the Virginia State Bar Disciplinary Board had imposed the sanction of an admonition (with terms requiring that Mr. Amberly complete six hours of continuing legal education within a year), the Board recommended to this court that we impose the substantially different discipline of a 30-day suspension. Explaining that we "perceive[d] no unfairness in applying to [Mr. Amberly] the rules governing reciprocal discipline that were in effect both at the time of his misconduct and when the Virginia Board issued its ruling," id. at 273 n. 2, we applied the pre-August 1, 2008 rule, and we went on to accept the Board's recommendation. Because of this precedent, because we similarly perceive no unfairness in applying the previous rules here, and because Bar Counsel informs us that there are few if any other pending matters that straddle the August 1, 2008, effective date of the new rule and that will present a similar issue about which rule to apply, we have determined to resolve this case under the pre-August 1, 2008 rule. At the same time, as we proceed to our analysis of whether to impose identical or different reciprocal discipline, we deem it appropriate to treat the result that would have ensued under application of the new rule— publication of the Massachusetts order of public reprimand—as a factor that weighs at least somewhat in favor of identical reciprocal discipline (a public reprimand) and weighs against imposition of a (more severe) suspensory sanction.

II. Background and the Massachusetts Discipline

In 1998, respondent began representing a client who sought political asylum in the United States. After an immigration judge denied the client's application on August 13, 1998, respondent filed a notice of appeal⁵ "but failed to ensure that the notice of appeal was received by BIA within 30 days as required."⁶ Although respondent promptly notified the client that the appeal had been dismissed, he did not inform the client of a possible claim of ineffective assistance of counsel as a result of the untimely filed notice of appeal. After the BIA dismissed the appeal on January 21, 1999, respondent filed a motion three days late to reconsider the dismissal, but "failed to ensure that the motion was received by BIA within 30 days of the BIA decisions as required."⁷ The BIA denied the motion as untimely. Again, respondent informed the client that the motion had been denied, but he failed to inform the client that he may have an additional claim of ineffective assistance of counsel as a result of the untimely filed motion for reconsideration.

Respondent continued to represent the client, pursuing alternative paths to legalize the client's immigration status, including a diversity immigrant visa program and an application for labor certification, but these efforts were not successful. In 2002, the client was arrested under a final deportation order. In June 2002, respondent filed a motion to reopen the asylum proceedings on the basis of alleged changed circumstances in the client's homeland.

The client retained new counsel in July 2002. Successor counsel pursued reopening of the proceedings on the basis of both ineffective assistance of counsel and changed circumstances in the client's homeland. Both the BIA and the United States Court of Appeals for the First Circuit rejected those arguments, and the client ultimately was deported.⁸

In the disciplinary proceedings that followed in Massachusetts, respondent and Massachusetts Bar Counsel signed a stipulation in which they agreed to waive an evidentiary hearing and to recommend a public reprimand based on respondent's admission that his conduct violated the Massachusetts Rules of Professional Conduct.⁹ The Massachusetts Board accepted the stipulation and found that (1) respondent's failure to file timely his client's notice of appeal and motion to reconsider was conduct in violation of Mass. R. Prof. C. 1.3; (2) respondent's "failure to withdraw as the client's counsel on the asylum claim and other immigration matters" or "to advise the client that the client had a potential claim against him for ineffective assistance of counsel, or of the risks of his remaining as counsel or of the benefits of retaining successor counsel to pursue a motion to reopen based on ineffective assistance of counsel" was conduct in violation of Mass. R. Prof. C. 1.1, 1.4(b), and 1.16(a)(1); and (3) respondent's continued representation after the BIA's dismissal and denial of respondent's motion to reconsider without disclosure of the potential conflict of interest, and without obtaining consent after consultation to the continued representation, constituted conduct in violation of Mass. R. Prof. C. 1.7(b).¹⁰ As to the potential conflict of interest, the Massachusetts Board cited in particular respondent's failure to advise the client that his continued representation of the client after the notice of appeal and motion to reconsider were rejected as untimely "could be materially limited by [respondent's] personal interest in avoiding the filing of a disciplinary complaint" such as generally is required to re-open an immigration proceeding on the basis of a claim of ineffective assistance of counsel.¹¹

III. Analysis

The presumption in favor of identical reciprocal discipline "is rebutted only if [a party] demonstrates, or the face of the record reveals, by clear and convincing evidence the existence of one of the conditions enumerated in D.C. Bar R. XI, § 11(c)." Beattie, 956 A.2d at 85-86 (citation omitted).¹² Both the Board and Bar Counsel rely on the fourth exception, which provides that "[t]he misconduct established warrants substantially different discipline in the District of Columbia[.]"¹³ D.C. Bar R. XI, § 11(c)(4).

In deciding whether to impose non-identical reciprocal...