In re Fuller

• Decision Date: 09 August 2007
• Docket Number: No. 06-BG-1303.,06-BG-1303.
• Citation: 930 A.2d 194
• Parties: In re Lawrence A. FULLER, Respondent.
• Court: D.C. Court of Appeals

930 A.2d 194

In re Lawrence A. FULLER, Respondent.

No. 06-BG-1303.

District of Columbia Court of Appeals.

Decided August 9, 2007.

Before KRAMER and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

PER CURIAM:

In this disciplinary proceeding against respondent Lawrence A. Fuller, a member of the Bar of this court, the Board on Professional Responsibility ("Board") has recommended that reciprocal and identical discipline be imposed in the form of an order of admonishment. No exceptions to the Board's Report and Recommendation have been filed.

On August 31, 2006, the Supreme Court of Florida entered an unpublished order of admonishment wherein it approved an uncontested referee's report and entered judgment for the recovery of costs in the amount of $3,125.12. In re Fuller, No. SC05-2324 (Fla. Aug. 31, 2006). The referee's report approved the conditional guilty plea and consent judgment, wherein respondent consented to the admonishment and admitted to violations of the Florida Bar Rules, including violations of the Florida Rules of Professional Conduct against the frivolous bringing or defending of a proceeding and conduct prejudicial to the administration of justice. On September 20, 2006, respondent self-reported the Florida discipline to the District of Columbia Bar. On November 1, 2006, Bar Counsel filed a certified copy of the order from the Supreme Court of Florida. On November 27, 2006, this court issued an order directing: 1) Bar Counsel to inform the Board of his position regarding reciprocal discipline within thirty days, 2) respondent to show cause why identical, greater, or lesser discipline should not be imposed, and 3) the Board either to recommend reciprocal discipline or proceed de novo. Thereafter, Bar Counsel filed a statement recommending reciprocal discipline of a reprimand by the Board.

In its report and recommendation, the Board notes that in cases like this, where neither Bar Counsel nor the respondent opposes identical discipline, "`the 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 Childress, 811 A.2d 805, 807 (D.C.2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C.1998)); In re Reis, 888 A.2d 1158 (D.C.2005). Here, the Board reports there was no miscarriage of justice in the Florida matter because respondent participated in the Florida proceeding, and through counsel, entered into the conditional guilty plea and consent judgment. Moreover, the Board found, and we agree, that there is no basis for any exception set forth in D.C. Bar R. XI, § 11(c) to apply here.

A rebuttable presumption exists that "the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Goldsborough, 654 A.2d 1285, 1287 (D.C.1995) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C.1992)). The Board notes that the reciprocal and identical discipline of an order of admonishment is outside the choice of sanctions provided by D.C. Bar R. XI, § 3. Nevertheless, it recommends identical discipline since there is no equivalent discipline in this jurisdiction to an order of admonishment, and in certain reciprocal matters, it is appropriate to "apply the foreign discipline in haec verba." In re Zdravkovich, 831 A.2d 964, 970 (D.C. 2003); In re Coury, 526 A.2d 25, 25-26 (D.C.1987). This court has previously held that a public censure is the functional equivalent of a public reprimand issued by the Supreme Court of Florida, In re Zukoff, 925 A.2d 549, 2007 D.C.App. Lexis 252 (D.C.2007), In re Steele, 914 A.2d 679 (D.C.2007); however, this court has not yet addressed what is this court's functional equivalent of an order of admonishment issued by the Supreme Court of Florida. The Board requests that, unlike the Florida discipline, the order of admonishment should be published to promote the general openness of disciplinary proceedings, see D.C. Bar R. XI, § 17(a), and this court concurs that this is the appropriate discipline.

Since no exceptions have been taken to the Board's report and recommendation, the Court gives heightened deference to its recommendation. See D.C. Bar R. XI, § 11(f)(1); In re Delaney, 697 A.2d 1212, 1214 (D.C.1997). As we find support in the record for the Board's findings, we accept them, and adopt the sanction the Board recommended. Accordingly, it is

ORDERED that Lawrence A. Fuller is hereby admonished.

So ordered.

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

D.C. App. No. 06-BG-1303 Bar Docket No. 349-06

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This reciprocal discipline matter comes before the Board on Professional Responsibility (the "Board") as a result of an order of admonishment imposed upon Lawrence A. Fuller ("Respondent") by the Supreme Court of Florida (the "Florida Court"). Although it is outside the choice of sanctions provided for in D.C. Bar R. XI, § 3, we recommend that the District of Columbia Court of Appeals (the "Court") impose the identical reciprocal discipline of an order of admonishment upon Respondent.

I. BACKGROUND

Respondent was admitted to the District of Columbia Bar by motion on June 3, 2002. Respondent also is a member of the Florida Bar.

Respondent self-reported his Florida discipline to the District of Columbia Bar by letter dated September 20, 2006. The Bar forwarded the letter to Bar Counsel, and on November 1, 2006, Bar Counsel filed a certified copy of the Florida Court's order of admonishment with the Court. On November 27, 2006, the Court issued an order suspending Respondent on an interim basis pursuant to D.C. Bar R. XI, § 11(d) and directed the Board either to: (i) recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline; or (ii) determine whether the Board should proceed de novo. Order, In re Fuller, No. 06-BG-1303 (D.C. Nov. 27, 2006).

On December 21, 2006, Bar Counsel filed a statement recommending that the Board reprimand Respondent as functionally identical reciprocal discipline to the Florida Court's order of admonishment. Respondent has not responded to Bar Counsel's statement or otherwise participated in this proceeding.

II. THE FLORIDA PROCEEDINGS

Respondent executed a Conditional Guilty Plea and Consent Judgment in which he admitted that he violated Florida Bar Rules ("Florida Rule(s)") 3-4.2¹ (violation of Florida Rules of Professional Conduct), 4-3.1² (the frivolous bringing or defending of a proceeding), and 4-8.4(d)³ (conduct prejudicial to the administration of justice). Conditional Guilty Plea and Consent Judgment, The Fla. Bar v. Fuller, No. SC05-2324, slip op. at 2 (Fla. July 12, 2006).

Specifically, Respondent admitted that he failed to perform an adequate pre-suit investigation before filing 13 complaints under the Americans with Disabilities Act that erroneously alleged his client was a quadriplegic. Id. at 3. The allegation was mistakenly inserted by a secretary using a template. In one of the cases, Respondent discovered the mistake when he met the client at a deposition; three days later, he faxed a letter with a proposed stipulation to opposing counsel, offering to take a voluntary dismissal. Id. Respondent delayed almost two months thereafter, however, before filing the motion for voluntary dismissal, because of opposing counsel's outstanding claim for fees and costs. Id. In a sanctions order, Respondent was ordered to pay attorney's fees and costs in the amount of $43,323.90, and a Special Master was assigned to supervise Respondent and his practice for one year, at Respondent's expense. Id. at 2-3. Respondent also sent letters to opposing counsel in the other cases notifying them that the client was not suffering from quadriplegia. Id. at 4.

Respondent consented to an admonishment by the Florida Court in the Conditional Guilty Plea and Consent Judgment and to payment of the Florida Bar's costs. Consent Judgment, Fuller, slip op. at 4. On July 12, 2006, the Report of the Referee approving the Conditional Guilty Plea and Consent Judgment was filed with the Florida Court. On August 31, 2006, the Florida Court entered an unpublished order of admonishment in which it approved the uncontested referee's report and entered judgment for recovery of costs in the amount of $3,125.12. See Order, In re Fuller, No. SC05-2324 (Fla. Aug. 31, 2006).

III. RECIPROCAL DISCIPLINE

There is a presumption in favor of imposing identical reciprocal discipline that may be rebutted by clear and convincing evidence that one or more of the five exceptions set out in D.C. Bar R. XI, § 11(c) exists.⁴ D.C. Bar R. XI, § 11(f); see In re Zilberberg, 612 A.2d 832, 834 (D.C.1992). When a respondent does not contest reciprocal discipline, however, the Board's role is limited to reviewing the foreign proceeding "`sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline. . . .'" In re Childress, 811 A.2d 805, 807 (D.C.2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C.1998)). The imposition of identical discipline when the respondent fails to object "should be close to automatic, with minimum review by both the Board and this court." In re Cole, 809 A.2d 1226, 1227 n. 3 (D.C.2002) (per curiam).

In accordance with our limited role, we have examined the record and find nothing that rises to the level of an obvious miscarriage of justice. Respondent participated in the Florida disciplinary proceedings and, through counsel, entered into the Conditional Guilty Plea and Consent Judgment. There is thus no due process violation. The misconduct to which Respondent stipulated also is misconduct here and violates the counterpart provisions of the District of Columbia Rules of...