In re Salo
Decision Date | 19 July 2012 |
Docket Number | No. 11-BG-1433,11-BG-1433 |
Parties | IN RE FREDERICK W. SALO |
Court | D.C. Court of Appeals |
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
On Report and Recommendation of the
of the Board on Professional Responsibility
Pamela A. Bresnahan, with whom Elizabeth Treubert Simon was on the brief, for respondent.
William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, was on the brief, for the Office of Bar Counsel.
Before BECKWITH and EASTERLY, Associate Judges, and NEBEKER, Senior Judge.
On July 27, 2010, the New York Supreme Court, Appellate Division, First Judicial Department ("the New York court") found respondent Frederick W. Salo guilty of nonvenal misappropriation of funds and related offenses and suspended him from the practice of law in New York for one year, effective August 26, 2010. Matter of Salo, 77 A.D.3d 30, 39 (N.Y. App. Div. 2010). The District of Columbia Office of Bar Counsel now recommends that we impose reciprocal disciplineand likewise suspend Mr. Salo for one year with a fitness requirement.1 Mr. Salo argues that the presumption of reciprocal discipline should not apply because the District of Columbia would have imposed a substantially different sanction had this matter originated in our jurisdiction. For the reasons articulated below, we find that Mr. Salo has rebutted the presumption of reciprocal discipline and we impose a six-month suspension with no fitness requirement.
Mr. Salo's misconduct involved the mismanagement of settlement funds following a personal injury action on behalf of a client. The New York court determined that after receiving a $198,000 settlement payment into his Interest on Lawyer Account ("IOLA account") in December 2001, Mr. Salo made payments to the client and himself while retaining $40,000 pending resolution of a worker's compensation lien. Salo, 77 A.D.3d. at 31. That lien was not resolved until June 2005. Id. In the interim, Mr. Salo allowed the balance of his IOLA account to fall as low as $102.88, well below the amount of the lien. Id. The court also concluded that Mr. Salo impermissibly commingled funds when he transferred $32,000 from his IOLA account to his personal account in January 2004and transferred the same amount back to his IOLA account in April 2005—funds ultimately used to resolve the lien. Id. at 32-33.
Mr. Salo did not dispute the underlying factual allegations. Id. at 32-33. He conceded that he had failed to designate the checks as originating from an IOLA account, that he impermissibly made an IOLA check payable to cash, and that this behavior "adversely reflect[ed] on his fitness as a lawyer." Id. at 33. He further acknowledged that he mishandled his IOLA account due to a mistaken belief that he was authorized to keep a cushion of earned legal fees in the account, a practice he no longer follows. Id. at 32. Mr. Salo contended, however, that post-traumatic stress disorder ("PTSD") and depression, stemming from childhood abuse and from his proximity to the September 11, 2001, attacks on the World Trade Center in New York, precluded him from acting with venal intent as to the misappropriation. Id. at 32-33. At a hearing before a referee in New York on March 28, 2007, Mr. Salo presented substantial medical evidence of his diagnoses and the impact PTSD and depression had had on his ability to practice law. Id.
Given this "uncontroverted expert evidence," the court concluded that "it has not been proven by a preponderance of the evidence that respondent had the venal intent required for a finding that he willfully and knowingly converted third-party funds." Id. The court further stated that in reaching that conclusion, it viewed as significant "that respondent had no evident motive to convert third-party funds (since it is uncontroverted that he had sufficient funds of his own to meet his personal expenses); that no other instances of conversion, either before or since, have been alleged; and that neither the client nor the lien-holder was harmed by respondent's conduct." Id.
In imposing sanction, the court recognized that "there are cases in which suspension from the practice of law for a substantial period of time is the appropriate sanction for even nonvenal misappropriation of funds." Id. at 38-39 ( ). The court rejected the Departmental Disciplinary Committee's recommendation of disbarment or at least a three-year suspension, however, and determined that a one-year suspension was the appropriate sanction in Mr. Salo's case. Id. at 17, 39. Mr. Salo's suspension took effect on August 26, 2010. He was reinstated to the New York State bar on February 7, 2012, without opposition.
Mr. Salo notified the Bar of the District of Columbia of his New York discipline on September 16, 2011.2 In an order dated December 20, 2011, this court suspended him from the practice of law in the District of Columbia pending final disposition. Mr. Salo filed affidavits pursuant to D.C. Bar Rule XI § 14 (g), and In re Goldberg, 460 A.2d 982 (D.C. 1983), on December 30, 2011.
In attorney-discipline cases arising as reciprocal matters, D.C. Bar R. XI § 11 (c) sets forth a rebuttable presumption in favor of this court's imposition of discipline identical to the discipline imposed by the original disciplining jurisdiction. In re Meisler, 776 A.2d 1207, 1207-08 (D.C. 2001). "The presumption applies unless the party opposing discipline (or urging non-identical discipline) shows, by clear and convincing evidence, that an exception should be made on the basis of one or more of the grounds set out in Rule XI, § 11 (c)(1)-(5)."3 As a "determination that one or more of the exceptions .. . applies is a question of law or ultimate fact," this court's review is de novo. In re Williams, 3 A.3d 1179, 1182 (D.C. 2010) (citation omitted).
In this case, Bar Counsel urges us to impose a reciprocal discipline of one year with reinstatement conditioned on a showing of fitness because there is no clear and convincing evidence indicating that any exception to the presumption of reciprocal discipline is warranted. Mr. Salo opposes the imposition of reciprocal discipline based upon Rule XI's fourth exception, which provides that "[t]he misconduct established warrants substantially different discipline in the District of Columbia[.]" D.C. Bar R. XI § 11 (c)(4).
Analysis of the substantially different discipline exception requires a two-step inquiry. In re Jacoby, 945 A.2d 1193, 1199-200 (D.C. 2008); In re Garner, 576 A.2d 1356, 1357 (D.C. 1990). First, we determine whether the conduct in question would not have resulted in the same punishment in the District of Columbia as it did in the disciplining jurisdiction. In re Fitzgerald, 982 A.2d 743, 748 (D.C. 2009) (citations and quotations omitted). Second, if the discipline imposed here would be different from that of the disciplining court, we must decide whether the difference between the two is substantial. Id.
At the outset, we must define the conduct in question in order to determine what punishment it would carry in the District of Columbia. Bar Counsel reads the New York court's opinion to state that Mr. Salo was guilty of intentional misappropriation ofentrusted funds, mitigated by his mental health issues. That is, in the view of Bar Counsel, New York's conclusion that Mr. Salo's misappropriation was caused by his disability mimics this court's application of mitigation under In re Kersey, 520 A.2d 321 (D.C. 1987), and its progeny, in which this court recognized that certain disabilities that may have contributed to ethical misconduct could mitigate the sanction for that conduct. Id. at 326 ( ); see also In re Peek, 565 A.2d 627, 631, 633 (D.C. 1989) ( ). Had...
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