In re De Maio, 04-BG-244.

• Decision Date: 02 March 2006
• Docket Number: No. 04-BG-244.,04-BG-244.
• Citation: 893 A.2d 583
• Parties: In re Louis J. DE MAIO, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

893 A.2d 583

In re Louis J. DE MAIO, Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 04-BG-244.

District of Columbia Court of Appeals.

Submitted February 10, 2006.

Decided March 2, 2006.

Before SCHWELB and FISHER, Associate Judges, and PRYOR, Senior Judge.

FISHER, Associate Judge:

In this reciprocal discipline proceeding against respondent Louis J. De Maio, the Board on Professional Responsibility ("Board") has recommended that respondent be suspended from the practice of law in the District of Columbia for eighteen months and required to demonstrate fitness prior to reinstatement. Although Bar Counsel initially urged that respondent receive the identical reciprocal discipline of disbarment, the Board recommended otherwise, and Bar Counsel has informed us that he takes no exception to the report and recommendation of the Board.¹ Respondent opposed the Board's report and recommendation, and has filed many motions in this court, but he has not filed a brief. We adopt the Board's recommendation.

I.

The Maryland Court of Appeals disbarred respondent in 2004 after finding that in various court filings, he had made "false, spurious and inflammatory representations and allegations" against Chief Judge Joseph Murphy of the Maryland Court of Special Appeals and the Clerk of that Court. These statements and allegations began after Chief Judge Murphy issued an order to show cause why an appeal that respondent was handling should not be dismissed as premature. Respondent falsely claimed that the show cause order had not been signed by Chief Judge Murphy. Respondent then filed motions in which he took progressively more outlandish positions, contending that the Maryland courts had "refus[ed] to administer the law" and that their actions were "a violation of their oath of office" and demanding that all public officials involved in his case be "held accountable and responsible and, if necessary, removed from their public office." Respondent then filed a petition to remove Chief Judge Murphy from the court, making unfounded allegations that the judge was personally interceding in respondent's case on behalf of the insurance industry, that he had personally contacted the insurer without notifying respondent, and that Chief Judge Murphy and the Clerk of the Court were colluding to derail his action and remove respondent's briefs from case files. In subsequent filings, respondent made additional bizarre allegations, including that there were actually two different Maryland Courts of Special Appeals and two different Chief Judge Murphys — one being a retired former Chief Judge — and that the show cause order that spurred respondent's allegations was illegal because it did not say which Chief Judge Murphy had signed it.

After an investigation was completed and findings were submitted by Maryland's Bar Counsel, the Maryland Court of Appeals concluded that respondent's conduct violated Maryland Rules of Professional Conduct 1.1 (Competence), 3.1 (Meritorious Claims and Contentions), 3.3 (Candor Toward Tribunal), 8.2 (Judicial and Legal Officials), and 8.4 (Misconduct), as well as Rule 8.1 (for failure to cooperate in the Bar Counsel investigation). Maryland Bar Counsel recommended and the Maryland Court of Appeals ordered that respondent be disbarred. Attorney Grievance Comm'n of Md. v. DeMaio, 379 Md. 571, 842 A.2d 802 (2004).

II.

Based on the findings and conclusions of the Maryland Court of Appeals, the Board has recommended that, rather than disbarment, respondent receive a suspension of eighteen months with a requirement that he show fitness prior to reinstatement. Generally, we are required to "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record. . . ." D.C. Bar R. XI, § 9(g). However, the Board's final determinations, whether they are characterized as findings of ultimate fact or conclusions of law, are owed no deference; our review is de novo. See In re Fair, 780 A.2d 1106, 1110-11 (D.C.2001) ("we have the obligation to make our own determination on the issue"). This case, however, presents a reciprocal matter where another disciplinary court has made a final determination as to the respondent's conduct. In reciprocal discipline matters, D.C. Bar R. XI, § 11(f)(2) provides that identical discipline will be imposed unless the attorney demonstrates, or the court finds on the face of the record, by clear and convincing evidence, one of the five exceptions set forth in D.C. Bar R. XI, § 11(c). See also In re Goldsborough, 654 A.2d 1285, 1287 (D.C.1995) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C.1992)).

Any of § 11(c)'s exceptions, if established by clear and convincing evidence, will overcome the rebuttable presumption of identical reciprocal discipline:

(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.

Id. The rule continues, "unless there is a finding by the Board under (1), (2), or (5) above that is accepted by the Court, a final determination by a disciplining 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 the purpose of a reciprocal disciplinary proceeding in this court." Id.

Here, the Board has not made a finding under subsection (1), (2), or (5).² Thus, we must treat respondent's misconduct as conclusively established by the decision of the Maryland Court of Appeals. See In re Gallagher, 886 A.2d 64, 68-69 (D.C.2005) (explaining that we defer to findings of fact made by other courts in reciprocal proceedings); D.C. Bar R. XI, § 11(c). Therefore we cannot and do not consider respondent's various attacks which fault the Board for not reinvestigating the disciplinary matter in Maryland. Nor do we deliberate on respondent's request that we order the Board to "investigate the ex parte proceeding" by Chief Judge Murphy or the "false charges" by the Maryland Attorney Grievance Commission. As we have previously stated in a similar matter: "Respondent's disagreements with the Maryland court's findings of fact cannot be entertained by this court. . . . Put simply, reciprocal discipline proceedings are not a forum to reargue the foreign discipline." Gallagher, 886 A.2d at 69 (quotation marks and citation omitted).

Relying on subsection (4), the Board does, however, recommend different discipline. We are left then to 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 of imposing a fitness requirement was proper.

III.

The Board found clear and convincing evidence that the sanction of disbarment is "substantially different discipline" from the identical conduct by respondent would warrant in this jurisdiction. D.C. Bar R. XI, § 11(c)(4). To decide whether it is appropriate to apply the "substantially different discipline" exception, we must undertake a two-step inquiry: "First, we determine if the misconduct in question would not have resulted in the same punishment here as it did in the disciplining jurisdiction. . . . Second, where the discipline imposed in this jurisdiction would be different from that of the disciplining court, we must then determine whether the difference is substantial." In re Garner, 576 A.2d 1356, 1357 (D.C.1990) (citations omitted).

Reviewing the case law of this jurisdiction, we agree with the Board that there are no decisions precisely on point. Closely analogous is In re Evans, 533 A.2d 243 (D.C.1987) (per curiam) (Evans II), a reciprocal discipline case where the respondent had been initially disbarred by the United States District Court for the District of Maryland for writing a letter accusing a magistrate judge of incompetence and/or a "Jewish bias" in favor of a particular law firm. That order of disbarment was affirmed on appeal by the United States Court of Appeals for the Fourth Circuit. See In re Evans, 801 F.2d 703 (4th Cir.1986) (Evans I). In Evans, we declined to order the identical reciprocal discipline of disbarment, explaining "that in this jurisdiction the traditional method of dealing with contumacious behavior in the courtroom or in the course of a judicial proceeding is to cite the offender for contempt of court." 533 A.2d at 245. Instead, we censured the respondent for his misconduct. Evans provides support for the Board's conclusion that our jurisdiction handles disciplinary actions arising from an attorney's personal attacks on a judge or court officer differently from our sister jurisdiction of Maryland.

Unlike Maryland, this jurisdiction has not adopted Model Rule of Professional Conduct 8.2, which provides in relevant part:

Rule 8.2. Judicial and Legal Officials.

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.³

This rule or a variation thereof would clearly cover the conduct of the respondent here. (Indeed, the ...