In re Weekes

• Decision Date: 11 March 2010
• Docket Number: No. 05-BG-1047.,05-BG-1047.
• Citation: 990 A.2d 470
• Parties: In re Oscar W. WEEKES, Jr., Respondent. Member of the Bar of the District of Columbia Court of Appeals (Bar No. 446257).
• Court: D.C. Court of Appeals

990 A.2d 470

In re Oscar W. WEEKES, Jr., Respondent.

Member of the Bar of the District of Columbia Court of Appeals (Bar No. 446257).

No. 05-BG-1047.

District of Columbia Court of Appeals.

Argued February 4, 2010.

Decided March 11, 2010.

Marlon C. Griffith, Brooklyn, NY, 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, for the Office of Bar Counsel.

Before REID and KRAMER, Associate Judges, and FERREN, Senior Judge.

REID, Associate Judge:

The Supreme Judicial Court for Suffolk County, Commonwealth of Massachusetts, issued an order, dated June 26, 2007, indefinitely suspending respondent, Oscar W. Weekes, Jr. from the practice of law. The Board on Professional Responsibility ("Board") has "recommended that this court impose on Mr. Weekes the functionally equivalent reciprocal discipline of a five-year suspension with the requirement to show fitness as a condition of reinstatement." The Board also recommended that the suspension date run from June 24, 2008, when Mr. Weekes filed the affidavit required under D.C. Bar R. XI, § 14(g) (2009).

Mr. Weekes opposes the recommendation that his suspension begin on June 24, 2008. He maintains that the suspension should date from October 19, 2005 when he submitted his affidavit following his temporary suspension by this court. Bar Counsel contends that the appropriate sanction should be disbarment, but he agrees with the Board that Mr. Weekes's suspension should date back to June 24, 2008. We adopt the recommendations of the Board.

FACTUAL SUMMARY

The record reveals that the Houghton Mifflin Company ("HM" or "the Company") employed Mr. Weekes during 2001 and 2002 as an assistant general counsel. His duties included reviewing vendor requests for payment and authorizing payments to vendors and third parties. The stipulation of Massachusetts Bar Counsel and Mr. Weekes, filed in the Massachusetts disciplinary proceeding, specified that "in May 2001, July 2001, and October 2001, Mr. Weekes intentionally and fraudulently caused three HM checks totalling $22,701 to be written to `Equity R.P.'" Equity R.P. stood for "Equity Real Protection," purportedly a security company that provided service on behalf of HM. However, that company did not exist. Mr. Weekes actually gave the checks to the manager of his apartment building, "Equity Residential Property Management," to cover his residential rental payments.

The stipulation also indicated that in May 2002, Mr. Weekes "intentionally and fraudulently caused a HM check for $3,400 to be issued to Attorney Robert D. Keough," supposedly for legal fees pertaining to Mr. Keough's alleged representation of HM in an employment discrimination case. Instead, the check covered Mr. Weekes's share of rent for a Rhode Island summer vacation home.

When we temporarily suspended Mr. Weekes in 2005, pending the final outcome of the Massachusetts disciplinary proceeding, we informed Mr. Weekes of the requirement that he submit an affidavit in compliance with D.C. Bar R. XI, § 14(g). The Board submitted a Report, dated January 20, 2006, noting that the October 19, 2005 affidavit submitted by Mr. Weekes did not comply with the applicable rule. The Board therefore recommended that "any period of suspension that ultimately may be imposed by this court as reciprocal discipline would run from the date Respondent files the affidavit required by D.C. Bar R. XI, § 14(g)." More than two years after the Board's 2006 Report, and following other communications advising Mr. Weekes that he had not submitted an acceptable affidavit, he filed an affidavit complying with Rule XI, § 14(g).

ANALYSIS

Mr. Weekes's sole contention in his appellate brief and during his main oral argument centered on the Board's position that his October 19, 2005 affidavit did not comply with D.C. Bar R. XI, § 14(g), and that, consequently, his suspension should date from the time he filed his June 2008 affidavit complying with Rule XI, § 14(g). Bar Counsel asserted in its brief, and at oral argument, that Mr. Weekes's sanction should commence as of June 24, 2008. Bar Counsel further insisted that Mr. Weekes should be disbarred because his misconduct constituted intentional misappropriation. During his rebuttal argument, Mr. Weekes opposed Bar Counsel's advocacy of his disbarment.

We first set forth the legal principles and authorities that will guide our analysis. D.C. Bar R. XI, § 11(c) mandates reciprocal discipline ("Reciprocal discipline shall be imposed") except in certain limited situations.¹ As we have said previously: "In reciprocal discipline cases, the presumption is that the discipline in the District of Columbia will be the same as it was in the original disciplining jurisdiction." In re Meisler, 776 A.2d 1207, 1207-08 (D.C. 2001); see also In re Kennon, No. 09-BG-1327, 987 A.2d 1143, 1143, 2010 D.C.App. Lexis 17, at *2 (D.C. January 28, 2010). The limited situations in which this court will not impose reciprocal discipline are set forth in Rule XI, § 11(c)(1) through (5); the exception in subsection (5) addresses the situation where "the misconduct established warrants substantially different discipline in the District of Columbia."

"Under D.C. Bar R. XI, § 14(g), a suspended attorney must file an affidavit demonstrating that he has satisfied his obligation pursuant to the Rule to, inter alia, notify clients of his suspension, withdraw from pending matters, return client property, notify opposing parties, and cease practicing law." In re Maignan, No. 07-BG-1362, 988 A.2d 493, 496, 2010 D.C.App. Lexis 29, at *7 (D.C. February 4, 2010). Section 14(g) provides:

(g) Required affidavit and registration statement. — Within ten days after the effective date of an order of disbarment or suspension, the disbarred or suspended attorney shall file with the Court and the Board an affidavit:

(1) Demonstrating with particularity, and with supporting proof, that the attorney has fully complied with the provisions of the order and with this rule;

(2) Listing all other state and federal jurisdictions and administrative agencies to which the attorney is admitted to practice; and

(3) Certifying that a copy of the affidavit has been served on Bar Counsel.

The affidavit shall also state the residence or other address of the attorney to which communications may thereafter be directed. The Board may require such additional proof as it deems necessary. In addition, for five years following the effective date of a disbarment or suspension order, a disbarred or suspended attorney shall continue to file a registration statement in accordance with Rule II, stating the residence or other address to which communications may thereafter be directed, so that the attorney may be located if a complaint is made about any conduct of the attorney occurring before the disbarment or suspension. See also section 16(c).

D.C. Bar R. XI, § 14(g)(1), (2), and (3); see also In re Huber, 708 A.2d 259, 261-62 (D.C.1998). The affidavit requirement imposed by § 14(g) is distinct from a Goldberg affidavit. In re Slosberg, 650 A.2d 1329, 1331 (D.C.1994); In re Goldberg, 460 A.2d 982, 985 (D.C.1983). A Goldberg affidavit promptly notifies Bar Counsel "`of any professional disciplinary action in another jurisdiction,'" and indicates that respondent "`voluntarily refrains from practicing law in the District of Columbia during the period of suspension in the original jurisdiction.'" Slosberg, 650 A.2d at 1331, 1331 n. 6 (quoting Goldberg, 460 A.2d at 985). Thus, if a Goldberg affidavit is submitted, "a suspension imposed . . . in a reciprocal discipline proceeding could be imposed retroactively to the commencement of the suspension in the foreign jurisdiction," so long as a respondent also satisfies the § 14(g) affidavit requirement. Id.

The Affidavit Issue

We begin our analysis with the affidavit issue raised by Mr. Weekes. Although his October 2005 filing qualified as a Goldberg affidavit, the Board correctly determined that it failed to satisfy the affidavit requirements of Rule XI, § 14(g). Significantly, Mr. Weekes did not list his bar admissions, including New York. As we declared in In re Bowser, 771 A.2d 1002 (D.C.2001):

The Rule XI, § 14 requirements are all matters of substance. None of them is a mere technicality. They all go to assure the protection of clients . . . from any disadvantage resulting from the suspension of the attorney. They also assure the protection of adverse parties. . . . They also serve the needs of the judicial and administrative systems . . . so that pending proceedings will not be unduly disrupted by the suspension.

Id. at 1010. In addition, although Mr. Weekes avers in his 2005 affidavit that "since the effective date of the order of temporary suspension from the practice of law by the Massachusetts court, he has not practiced law in the District of Columbia," he does not explicitly state that he had no clients, or that he notified his clients of his suspension, or that he does not represent clients in non-litigated matters. Yet, these are "core requirements" of the § 14(g) affidavit. In re Hook, 912 A.2d 554, 555 (D.C.2006). Furthermore, the requirement in § 14(g)(2) — "list all other state and federal jurisdictions and administrative agencies to which the attorney is admitted to practice" — safeguards against the possibility that an attorney who has been disciplined in one jurisdiction may escape the notice of another and practice without reciprocal sanction.

Mr. Weekes's 2005 submission could not be described as "full, though technically imperfect compliance with the requirements of § 14." Slosberg, 650 A.2d at 1333. Nor could it be characterized as falling within the parameters of In re Gardner, 650 A.2d 693 (D.C.1994), or In re Susman, 876 A.2d 637 (D.C.2005), where the disciplined attorney received nunc pro tunc treatment after being given an...