In re Jacoby

• Decision Date: 03 April 2008
• Docket Number: No. 05-BG-1080.,05-BG-1080.
• Citation: 945 A.2d 1193
• Parties: In re Peter H. JACOBY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 285692).
• Court: D.C. Court of Appeals

945 A.2d 1193

In re Peter H. JACOBY, Respondent A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 285692).

No. 05-BG-1080.

District of Columbia Court of Appeals.

Argued March 12, 2008.

Decided April 3, 2008.

Barry E. Cohen, Washington, with whom Nicole M. Jenkins was on the brief, for respondent.

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

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FERREN, Senior Judge.

BLACKBURNE-RIGSBY, Associate Judge:

Respondent Peter H. Jacoby was publicly censured by the New Jersey Supreme Court on October 16, 2006. His public censure was based on his acts of domestic violence directed toward his wife. The Board on Professional Responsibility in the District of Columbia instituted reciprocal discipline proceedings and recommended a non-identical sanction of a sixty-day suspension, to which Mr. Jacoby takes exception.

I. FACTUAL AND PROCEDURAL HISTORY

Peter H. Jacoby is a member of the District of Columbia bar, having been admitted on motion November 23, 1979. He has been on inactive status since March 1980. He was admitted to the New York State Bar in 1975 and the New Jersey Bar in 1987.

On March 5, 2005, Mr. Jacoby was arrested following a physical altercation with his wife at their home in New Jersey. The police had responded to a call and found Mrs. Jacoby "lying on her back on the front walkway." She was "crying and shaking" and grabbed the police officer's hand, clutched it tightly, and said "I'm so scared." Mrs. Jacoby told the officer that her left back and shoulder area had been injured when her husband "grabbed her by the throat with both his hands and began choking her." She explained that they had been discussing their children's future when Mr. Jacoby "became angry for no observable reason. . . ." When Mrs. Jacoby suggested that they have a family discussion, Mr. Jacoby "became more angry and yelled at her for telling him what to do with his children." He choked her and "threw her into the wall." When Mrs. Jacoby asked Mr. Jacoby to go outside (and out of the children's presence) so that they could talk privately and calmly, Mr. Jacoby "grabbed [Mrs. Jacoby] by the throat again and threw her into the wall." Their son confirmed Mrs. Jacoby's account of the events.

Mrs. Jacoby suffered "a dislocated shoulder as a result of the assault [and] . . . underwent six months of physical therapy before she could return to work, and then only on a part-time basis." Mr. Jacoby was arrested on the scene and charged with "aggravated assault," a crime of the third degree,¹ but this charge was dismissed on August 25, 2005, when Mr. Jacoby entered a guilty plea to a disorderly persons offense² for simple assault. Mr. Jacoby was sentenced to probation for one year and ordered to continue psychiatric treatment, and pay $25 per month for supervision, $75 for the Secure Communities Program Assessment, and $50 for the Violent Crimes Compensation Board assessment.

On October 3, 2005, Bar Counsel for the District of Columbia ("Bar Counsel") notified this court of Mr. Jacoby's guilty plea in the underlying criminal matter in New Jersey. The court referred the matter back to Bar Counsel for an investigation on October 18, 2005. In re Peter H. Jacoby, No. 05-BG-1080 (D.C. Oct.18, 2005). On May 19, 2006, a Contact Member for the District of Columbia Board on Professional Responsibility ("Board") deferred the disciplinary proceeding under D.C. Bar Rule XI, § 19(d) based upon Mr. Jacoby's guilty plea pending resolution of the New Jersey disciplinary matter.

Following Mr. Jacoby's criminal sentencing in New Jersey, the New Jersey Office of Attorney Ethics moved the New Jersey Disciplinary Review Board ("New Jersey Board") to recommend a three-month suspension of Mr. Jacoby for violating New Jersey Rule 8.4(b), which the New Jersey Board imposed.³ On October 16, 2006, the Supreme Court of New Jersey upheld the New Jersey Disciplinary Review Board's determination that Mr. Jacoby had violated Rule 8.4(b), but ruled that censure instead of suspension was "the appropriate quantum of discipline." The Supreme Court of New Jersey did not issue an opinion with its order and did not explain why it determined that a non-suspensory sanction was appropriate.

The New York State Bar initiated reciprocal discipline proceedings following Mr. Jacoby's public censure in New Jersey. The Appellate Division, First Department, of the Supreme Court of New York deferred to the New Jersey Supreme Court and imposed identical reciprocal discipline of a public censure. In re Jacoby, 42 A.D.3d 196, 837 N.Y.S.2d 118, 118-20 (2007). The United States District Court for the Southern District of New York also publicly censured Mr. Jacoby for his violation of Rule 8.4(b) of the New Jersey Rules of Professional Conduct, which corresponded to the New York Code of Professional Responsibility, DR 1-102(A)(3). In re Jacoby, Order of Censure, at 1 (S.D.N.Y. July 11, 2007).

Mr. Jacoby then timely reported his New Jersey discipline to the Office of Bar Counsel for the District of Columbia by letter dated October 23, 2006.⁴ Bar Counsel obtained a certified copy of the Supreme Court of New Jersey's order and filed it with the court on November 21, 2006. On December 19, 2006, the court issued an order referring this matter to the Board, and directing Bar Counsel to inform the Board of Bar Counsel's position regarding reciprocal discipline. In re Jacoby, No. 05-BG-1080 (D.C. Dec. 19, 2006).

On January 10, 2007, Bar Counsel filed its statement regarding reciprocal discipline, which stated that a public censure (the sanction imposed by the Supreme Court of New Jersey) was outside the range of sanctions that would be imposed in the District of Columbia and that the difference between the sanctions was substantial. Therefore, Bar Counsel recommended that a minimum thirty-day suspension be imposed. Mr. Jacoby's counsel filed his Opposition to Bar Counsel's statement, which argued that Bar Counsel lacked standing to recommend discipline greater than that imposed in New Jersey and that identical reciprocal discipline should be imposed because there was no clearly defined range of sanctions for domestic violence in the District of Columbia. Bar Counsel filed a Reply to Mr. Jacoby's Opposition on March 22, 2007.

On May 11, 2007, the Board issued its report, which recommended that Mr. Jacoby be suspended for sixty days and complete a program for domestic abusers. The Board noted that it had the authority to recommend substantially different discipline and found that Mr. Jacoby's violent acts warranted a suspensory sanction.

II. ANALYSIS

A. Whether this Court is authorized to impose a greater disciplinary sanction than that imposed in the originating jurisdiction.

Mr. Jacoby argues that D.C. Bar Rule XI, § 11(c) does not authorize this Court to impose greater discipline in reciprocal cases than was imposed in the originating jurisdiction because the attorney, and only the attorney, is authorized to prove by clear and convincing evidence that reciprocal discipline should not be imposed. Bar Counsel argues that this interpretation of the Rule ignores other relevant subsections of the Rule and precedent. Because this issue has already been decided by a prior division of this Court, see In re Drury, 638 A.2d 60, 62 (D.C.1994), we are bound by that decision. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971).

D.C. Bar Rule XI, § 11 governs reciprocal discipline. Under subsection (c) "Standards for Reciprocal Discipline," it provides that "[r]eciprocal discipline shall be imposed unless the attorney demonstrates . . . by clear and convincing evidence" that one of the five enumerated exceptions⁵ applies. D.C. Bar Rule XI, § 11(c)(1)-(5). We have held that this rule "creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original jurisdiction." In re Demos, 875 A.2d 636, 641 (D.C.2005) (internal citation omitted). The purpose of the presumption is to avoid "an inconsistent disposition involving identical conduct by the same attorney." Id. "[A] final determination by a disciplinary court outside the District of Columbia or by another court in the District of Columbia that an attorney has been guilty of professional misconduct shall conclusively establish the misconduct for purpose of a reciprocal disciplinary proceeding in this Court" unless the Board on Professional Responsibility finds (and this Court accepts) that the first, second, or fifth exceptions apply (i.e., the procedure elsewhere violated due process, there was an infirmity of proof, or the misconduct elsewhere does not qualify as misconduct in the District of Columbia). D.C. Bar Rule XI, § 11(c)(1)-(5).

Nonetheless, we have also held that the "authority of the Board to recommend greater discipline, and of this court to impose it, is well established." In re Demos, supra, 875 A.2d at 641; see also In re Gardner, 650 A.2d 693, 696 (D.C. 1994) ("the rules do not preclude the Board from recommending the imposition of a lesser or a harsher sanction"). Specifically, addressing this issue in In re Drury, supra, 638 A.2d at 62, we held that the basis of this Court's authority to deviate from imposing an identical sanction in a reciprocal proceeding was D.C. Bar Rule XI, § 11(f)(2). In that case, we squarely addressed and rejected Respondent's argument that the September 1, 1989, amendment to D.C. Bar Rule XI divested this Court of authority to impose a greater sanction in a reciprocal proceeding. In re Drury, supra, 638 A.2d at 61. We compared the previous version of D.C. Bar Rule XI, § 18(5) (1986) (the court "shall impose the identical discipline unless Bar Counsel or the attorney demonstrates, or the Court finds upon the face of the record upon which...