In re Reid

• Decision Date: 20 April 1988
• Docket Number: No. 87-281.,87-281.
• Citation: 540 A.2d 754
• Parties: In re Arthur J. REID, Jr., Respondent.
• Court: D.C. Court of Appeals

540 A.2d 754

In re Arthur J. REID, Jr., Respondent.

No. 87-281.

District of Columbia Court of Appeals.

Argued March 1, 1988.

Decided April 20, 1988.

David E. Mills, with whom Albert H. Turkus, Washington, D.C., and Alan J. Goldstein, were on the brief, for respondent.

Michael S. Frisch, Asst. Bar Counsel, with whom Thomas E. Flynn, Bar Counsel, Washington, D.C., was on the brief, for petitioner, the Office of Bar Counsel.

Joan L. Goldfrank, Executive Atty., Washington, D.C., for the Bd. on Professional Responsibility.

Before PRYOR, Chief Judge, and NEWMAN and BELSON, Associate Judges.

PER CURIAM:

Respondent, Arthur J. Reid, Jr., engaged in certain misconduct in Maryland involving misappropriation and conversion of client funds. The Court of Appeals of Maryland noted that ordinarily respondent's misconduct would warrant the sanction of disbarment, but that his alcoholism was a factor in mitigation.¹ The Maryland court therefore ordered respondent indefinitely suspended from the practice of law, but entered its order without prejudice to his right to apply for reinstatement after the expiration of a period of thirty days. On May 5, 1987, after serving a sixty-three day suspension, respondent was reinstated upon a two-year probation subject to specified conditions.

On April 2, 1987, we directed the Board on Professional Responsibility (Board) to determine whether reciprocal discipline should be imposed or whether the Board instead would elect to proceed de novo pursuant to D.C.Bar R. XI, § 7. On October 2, 1987, the Board issued its report, in which it found that because an appropriate order could be issued by this court based on the conclusiveness of the record in the Maryland proceedings as provided by D.C.Bar R. XI, § 18(6), a de novo proceeding was not necessary. The Board further found, however, in accordance with Rule XI, § 18(5)(d), that respondent's established misconduct warrants substantially different discipline in this jurisdiction. Therefore, consonant with our decision in In re Kersey, 520 A.2d 321 (D.C. 1987), the Board recommended that respondent be disbarred, that the execution of the disbarment be immediately stayed, and that he be placed on probation for a period of five years subject to certain terms and conditions.² Pursuant to Rule XI, § 18(3), we then ordered respondent to show cause why the discipline proposed by the Board should not be imposed.

Before this court, respondent now contends: (1) that when making a recommendation under order of this court pursuant to Rule XI, § 18(2), the Board may not recommend discipline substantially different from that imposed in the foreign jurisdiction without proceeding de novo, and, even if the Board is empowered to make such a recommendation, it may be accorded no weight on review; and (2) that the record does not clearly show that the misconduct established in Maryland warrants substantially different discipline in this jurisdiction.

We conclude that under D.C.Bar R. XI, § 18, the Board is empowered to recommend discipline substantially different from that imposed in the foreign jurisdiction without proceeding de novo if the procedure elsewhere comports with due process, there is no infirmity of proof establishing the misconduct, and the attorney is not entitled to a hearing for other reasons; we are not required, however, to accord such a recommendation the deference we normally would in a nonreciprocal discipline proceeding. We further conclude that the record in this case clearly shows that respondent's misconduct warrants substantially different discipline in this jurisdiction.

I

The facts pertaining to respondent's misconduct are not in dispute. In 1982, respondent represented a client in a personal injury matter. In 1983, he settled her claim for $9,000, and received a check written in that amount. Respondent signed his client's name to the check, as he was authorized to do, but deposited it in his personal checking account. He then misrepresented to his client that the amount of settlement was $6,000, not $9,000. Although respondent had agreed to pay his client's medical bills, which amounted to approximately $1,021, he did not do so until 1984, after a complaint had been filed with the Attorney Grievance Commission of Maryland. Respondent did not inform his client of the actual amount of settlement and pay her the balance owed until some time after the complaint had been filed. It was shown that over $2,000 of his client's funds were converted to his own use. It was also shown that respondent's alcoholism was the proximate cause of his misconduct.

II

This reciprocal discipline proceeding is governed by D.C.Bar R. XI, § 18, which provides, in pertinent part:

(2) Notice served upon the Board. Upon receipt of a certified copy of an order demonstrating than an attorney admitted to practice in the District of Columbia has been disciplined in another jurisdiction or by another court in this jurisdiction, the Court shall forthwith issue a notice directed to the Board, with a copy thereof to the attorney, including a copy of the order from the other court and requesting the Board to recommend to the Court, within 30 days, whether reciprocal discipline should be imposed or whether the Board, instead, elects to proceed de novo pursuant to § 7 of this Rule.

(5) Discipline to be imposed. . . . [T]his 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 the discipline is predicated, that clearly:

(a) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(b) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; or

(c) The imposition of the same discipline by the Court would result in grave injustice; or

(d) The misconduct established warrants substantially different discipline in this jurisdiction; or

(e) The misconduct elsewhere does not constitute misconduct in the District of Columbia.

If this Court determines that any of those elements exists, the Court shall enter such order as it deems appropriate, including referral of the matter to the Board for its further consideration and recommendation.

(6) Conclusiveness of adjudication in other jurisdiction. In all other respects, a final adjudication in another jurisdiction or by another court in this jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this Court.

Respondent contends that, under the provisions of the above rule, if the Board declines to proceed de novo, it may not recommend discipline substantially different from that imposed in the foreign jurisdiction. Although respondent does not request a hearing, he maintains that when asked to recommend disposition of a reciprocal discipline case pursuant to Rule XI, § 18(2), the Board must either recommend reciprocal discipline or elect to proceed de novo pursuant to Rule XI, § 7. He states that if the Board determines that a de novo proceeding is not necessary, this court must impose reciprocal discipline unless Bar Counsel or the attorney demonstrates, or we find upon the face of the record upon which the discipline is predicated, that clearly an exception set forth in Rule XI, § 18(5)(a)-(e) applies. Thus, in respondent's view, "[t]he Board has no role in this phase of the proceeding. Only Bar Counsel and the attorney are designated by the Rule as advocates who may argue for a greater or lesser sanction than reciprocal discipline."

We disagree that under Rule XI, § 18, the Board must recommend reciprocal discipline if it declines to proceed de novo. In determining whether to recommend reciprocal discipline in a given case, it is proper for the Board, as a threshold matter, to consider whether any of the exceptions set forth in Rule XI, § 18(5)(a)-(e) are clearly applicable. If the Board determines that reciprocal discipline is not appropriate for the reason set forth in § 18(5)(d), the reciprocal discipline proceeding does not terminate at that point, but rather, the Board may then recommend to this court what it considers to be the appropriate disposition of the case. See In re Evans, 533 A.2d 243 (D.C. 1987). The Board, of course, may refer the matter to a hearing committee. But if the procedure elsewhere comports with due process, there is no infirmity of proof establishing the misconduct, and the attorney is not entitled to a hearing for other reasons, Rule XI, § 18 does not otherwise prohibit the Board from recommending the imposition of a lesser or harsher sanction than that imposed in the foreign jurisdiction.³ See In re Evans, supra. And, in this latter instance, the language of Rule XI, § 18(5) authorizing this court to enter an appropriate order encompasses the power to adopt the Board's recommended sanction, even though we are not required to accord it the deference we normally would in a nonreciprocal discipline proceeding.⁴

III

Respondent next argues that the exception set forth in D.C.Bar R. XI, § 18(5)(d) is not clearly applicable to this case because: (1) In re Kersey, supra, is not controlling with respect to the imposition of an appropriate sanction; and (2) his misconduct involved only a single instance of misappropriation and therefore does not warrant the sanction of disbarment.⁵

In In re Kersey, supra, we held that "alcoholism is a mitigating factor to be considered in determining discipline," and that "rehabilitation from that condition will be considered a significant factor in imposing discipline." 520 A.2d at 326, 327. Proof, however, that alcoholism is a cause of attorney misconduct has no bearing on the determination of what sanction should be imposed in the first instance. Thus, K...