In re Guberman, No. 06-BG-1058.
| Decision Date | 13 August 2009 |
| Docket Number | No. 06-BG-1058. |
| Citation | 978 A.2d 200 |
| Parties | In re Mark S. GUBERMAN, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 442683). |
| Court | D.C. Court of Appeals |
Mark S. Guberman, Manalapan, pro se.
Judith Hetherton, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, was on the brief, for the Office of Bar Counsel.
Before RUIZ and THOMPSON, Associate Judges, and FARRELL, Senior Judge.*
On April 13, 2006, the Court of Appeals of Maryland disbarred Mark S. Guberman, concluding that he engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct ("MRPC") and in conduct prejudicial to the administration of justice, in violation of MRPC Rule 8.4(d).1 After Bar Counsel reported the Maryland discipline to this Court, we issued an interim order suspending respondent from practice in this jurisdiction and directing the Board on Professional Responsibility (the "Board") to provide its recommendation as to whether (1) this court should impose identical, greater or lesser discipline as reciprocal discipline, or (2) the Board should commence an original-discipline proceeding. In its Report and Recommendation dated November 6, 2007 ("Report"), the Board recommended that we impose non-identical reciprocal discipline-specifically, a suspension of 18 months. We now adopt the Board's recommendation.
Respondent's misconduct arose in the course of his employment as an associate with a law firm in Rockville, Maryland. Along with other lawyers at the firm, respondent represented a client as plaintiff in two related matters in Virginia state and federal courts. The federal court case was resolved in the client's favor, but the state court suit was summarily dismissed in favor of the defendants. Thereafter, as found by the hearing court in Maryland,
[The client] advised [respondent] Guberman that he did not want to appeal the [state court] case because he did not want to incur additional fees and expenses. Mr. Guberman discussed the matter with Mr. Cooper [respondent's supervisor at the law firm] and Mr. Moore [another lawyer at the firm]. Mr. Cooper instructed Mr. Guberman to tell [the client] that the firm would modify the fee arrangement if he pursued an appeal. Mr. Guberman did not convey that offer to [the client].
When Mr. Cooper later asked him about the status of the case, Mr. Guberman said he had filed a Notice of Appeal in the Circuit Court. In September 2003, Mr. Guberman told Mr. Cooper that he had filed a Petition For Appeal in the Supreme Court of Virginia. Mr. Guberman placed copies of these pleadings in the firm's file. Both copies bore what appeared to be file stamps indicating that the Clerk had received and filed the pleadings.
Mr. Guberman submitted monthly status reports to the firm. The status report dated December 22, 2003, reported that he was "awaiting court's ruling on petition for appeal. ..." Mr. Cooper made further inquiries about the status of the appeal in early 2004. Around the end of May 2004, at the request of Mr. Cooper, Mr. Cooper's assistant, Jessica Stitely, watched Mr. Guberman call the court to check on the status of the case. Ms. Stitely was informed that the case was still pending.
In July 2004, Mr. Cooper made inquiries with the Virginia courts and learned that the appeal had never been filed and that the filing receipt stamps were not genuine. When confronted by Mr. Cooper, Mr. Guberman acknowledged that he never filed the appeal. ...
[The client] never authorized Mr. Guberman to file an appeal. He never was told by Mr. Guberman that an appeal had been filed.
Guberman, 896 A.2d at 339. The Maryland hearing court concluded that:
Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) ... by falsely representing to Mr. Cooper and other representatives of the firm that he had filed an appeal in [the client's] case. He engaged in conduct prejudicial to the administration of justice [in violation of Rule 8.4(d)] by creating falsified filing stamps on papers, falsely certifying that the papers had been filed in court.
Id. at 339-40.2 Respondent did not take exception to those findings of fact and conclusions of law. Id. at 340. The Maryland Court of Appeals adopted them and imposed a sanction of disbarment. Id. at 340.
This court imposes reciprocal discipline in accordance with the provisions of D.C. Bar R. XI, § 11. Rule XI, section 11 "continues to `create[] a rebuttable presumption' that, when a member of our Bar has been disbarred, suspended, or placed on probation by another disciplining court, the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Gonzalez, 967 A.2d 658, 660 (D.C.2009) () (citation omitted). Specifically, Rule XI, section 11 provides that this court "shall impose identical discipline unless the attorney demonstrates by clear and convincing evidence, or the Court finds on the face of the record," that one or more of the following grounds exists:
(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.
Relying on Rule XI, section 11(c)(4), the Board in this case concluded that disbarment was not "within the range of sanctions for the particular misconduct committed by Respondent" and that "the difference between the Maryland disbarment and the sanction that would have been imposed if this case had been brought as an original matter in the District of Columbia is substantial."3 Report at 7 (italics omitted). The Board arrived at its recommended sanction of an eighteen-month suspension after considering the sanctions that this court has imposed for conduct similar to respondent's. The Board characterized the recommended eighteen-month suspension as a "substantial suspension" warranted by respondent's "long course of dishonesty about his professional activities, coupled with his fabrication of documents, including official court-stamps." Report at 16.
Respondent urges us to adopt the Board's recommendation. Before the Board, Bar Counsel recommended the identical reciprocal discipline of disbarment, but now takes the position that, while disbarment or a lengthier period of suspension is warranted, the court should impose a suspension of "at least eighteen months." In addition, Bar Counsel urges us to impose a "fitness requirement," i.e., a requirement that respondent demonstrate his fitness to practice law before he may be reinstated in this jurisdiction.4
In determining what discipline to impose, this court must consider three issues: whether the Board has supported its determination that there was clear and convincing evidence to overcome the presumption in favor of identical reciprocal discipline; whether the Board's recommended sanction of suspension for eighteen months is consistent with our case law; and whether the Board's recommendation that we not impose a fitness requirement was proper. See In re DeMaio, 893 A.2d 583, 586 (D.C.2006).
As we observed in In re Pennington, 921 A.2d 135 (D.C.2007), there is "what amounts to a presumption under Maryland law that an attorney who engages in intentional dishonesty will be disbarred." Id. at 140. By contrast, in this jurisdiction, "a presumption of disbarment rebuttable only by `compelling extenuating circumstances' has heretofore been reserved for one class of intentionally dishonest conduct, that involving misappropriation of client funds." Id. at 141.5 Since respondent's conduct did not involve misappropriation, we can begin by agreeing with the Board that had respondent's misconduct occurred in this jurisdiction, it would not have resulted in the same punishment (disbarment) as was imposed in the disciplining jurisdiction.
Thus, it was appropriate for the Board to go on to consider what sanction would likely have been imposed as original discipline in this jurisdiction and whether that sanction is substantially different from disbarment. To make that determination, the Board considered a number of disciplinary decisions of this court in which we sanctioned attorneys for conduct involving fabrication of documents or other dishonesty and (in some of the cases) conduct prejudicial to the administration of justice. The Board referred specifically to In re Scanio, 919 A.2d 1137 (D.C.2007) (per curiam) (); In re Hawn, 917 A.2d 693 (D.C.2007) (); In re Owens, 806 A.2d 1230 (D.C.2002) (); In re Miller, 553 A.2d 201 (D.C.1989) (...
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