In re Zdravkovich

• Decision Date: 11 September 2003
• Docket Number: No. 01-BG-96.,01-BG-96.
• Citation: 831 A.2d 964
• Parties: In re Dushan S. ZDRAVKOVICH, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

831 A.2d 964

In re Dushan S. ZDRAVKOVICH, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 01-BG-96.

District of Columbia Court of Appeals.

Argued April 22, 2003.

Decided September 11, 2003.

Dushan Zdravkovich, pro se.

Julia L. Porter, Senior Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel, was on the brief, for the Office of Bar Counsel.

Before STEADMAN, SCHWELB and RUIZ, Associate Judges.

STEADMAN, Associate Judge:

Before us is one of our frequent reciprocal discipline proceedings. Respondent Dushan S. Zdravkovich ("Zdravkovich") has been indefinitely suspended in Maryland. The Board on Professional Responsibility ("Board") has recommended that Zdravkovich be reciprocally disciplined by a suspension of nine months from the practice of law in the District of Columbia, and that he be required to demonstrate fitness prior to reinstatement. We reject Zdravkovich's exceptions to this recommendation and impose the recommended sanction.

A.

On December 4, 2000, the Maryland Court of Appeals indefinitely suspended respondent Zdravkovich from the practice of law in Maryland based on its determination that respondent had violated the following Maryland Rules of Professional Conduct in his representation of two clients in related litigation: 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 3.1 (meritorious claims and contentions), and 8.4(d) (conduct prejudicial to the administration of justice). The details of the events leading to his sanction in Maryland are spelled out at length in the published opinion, Attorney Grievance Comm'n of Maryland v. Zdravkovich, 362 Md. 1, 762 A.2d 950 (2000), and we need not recount them herein.¹

As we regularly do in cases in which an attorney is suspended in another jurisdiction, we entered an interim order on February 12, 2001, suspending Zdravkovich from the practice of law in this jurisdiction pursuant to D.C.Bar. R. XI, § 11(d), and referred the matter to the Board. This routine order asked the Board to hear from Bar Counsel and Zdravkovich and, thereafter, to recommend to this court whether identical, greater, or lesser discipline should be imposed as reciprocal discipline or whether the Board instead would proceed de novo pursuant to Rule XI, § 11.²

Rule XI, § 11(c) establishes the standards for reciprocal discipline and provides as follows:

Reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that:

(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.

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.

On March 14, 2001, Bar Counsel filed a statement with the Board, pursuant to BD. ON PROF'L RESPONSIBILITY R. 8.1, recommending that reciprocal, but not identical, discipline be imposed on Zdravkovich. Zdravkovich, on June 18, 2001, filed a brief in which he argued that the Board should reject the Maryland Court of Appeals' findings because he had been denied an opportunity to be heard in Maryland due to illness and that there was such infirmity of proof before the Maryland Court of Appeals that the Board should reject that court's conclusions. On June 22, 2001, Bar Counsel filed a reply to Zdravkovich's brief arguing that Zdravkovich was merely attempting to relitigate the facts of his disciplinary proceeding in Maryland and had presented no new evidence.

On March 11, 2002, the Board filed its report and recommendation with this court. The Board ruled that Zdravkovich had failed to prove by clear and convincing evidence that any of the five grounds listed in Rule XI, § 11(c) stood in the way of reciprocal discipline³ and recommended the imposition of reciprocal, but not identical, discipline. Following past practice in indefinite suspensions of this type, the Board recommended that Zdravkovich be suspended from the practice of law in the District of Columbia for nine months and that, as a condition of reinstatement, he be required to demonstrate fitness before readmission.

This matter comes before us on Zdravkovich's exceptions to the Board's recommendation.⁴ Renewing arguments made to and rejected by the Board, Zdravkovich asserts that there was infirmity of proof as to his misconduct such that this court should not accept the conclusion of the Maryland Court of Appeals that he engaged in such misconduct, and contends that he was deprived of a fair opportunity to respond to the charges against him because he was seriously ill at the time of the evidentiary hearing concerning those charges. Zdravkovich, at oral argument and for the first time, also asserted that his suspension should have been imposed nunc pro tunc to February 12, 2001, the date on which he was suspended in this jurisdiction, because over two years have passed between the imposition of his indefinite suspension in Maryland and the consideration of his appeal herein.

B.

Reciprocal bar disciplinary cases account for a significant percentage of disciplinary actions in the District of Columbia. The District of Columbia Bar has more than 77,000 members, over 55,000 of whom maintain active membership with the Bar. APR. 2003 D.C. BAR MEMBERSHIP DISTRIBUTION REP at 1. We are advised that each of over 42,000 of these active members has certified to our Bar that he or she is also admitted in another jurisdiction.⁵ Indeed, it remains common for our thousands of Washington Metropolitan Area members to also practice in Maryland or Virginia. It should come as no surprise, therefore, that our Bar had 31 reciprocal discipline cases in 2002, a figure that dwarfs the amount of reciprocal discipline procedures in other jurisdictions. See Materials prepared by Board on Professional Responsibility District of Columbia Court of Appeals for the Thirtieth Annual Disciplinary Conference of the District of Columbia (April 29, 2003) (on file with the District of Columbia Board on Professional Responsibility and the District of Columbia Court of Appeals) [hereinafter Disciplinary Conference Materials].⁶

We have adopted a rigid standard for reciprocal bar discipline cases. As already indicated, we presumptively impose identical reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence that the case falls within one of five specified exceptions articulated in Rule XI, § 11(c). In re Gardner, 650 A.2d 693, 695 (D.C.1994); In re Zilberberg, 612 A.2d 832, 834-35 (D.C. 1992). While the plain language of Rule XI, § 11(c) places the burden on the disciplined attorney to establish by clear and convincing evidence that a lesser sanction is warranted, the Office of Bar Counsel also has standing to object to the imposition of identical discipline, see, e.g., In re Reid, 540 A.2d 754, 758 (D.C.1988), and may recommend a different sanction when it believes an exception applies. See, e.g., In re Berger, 737 A.2d 1033, 1040 (D.C. 1999)

. Such instances, however, should be rare. Underlying our strict standard in reciprocal bar discipline cases is not only the notion that another jurisdiction has already afforded the attorney a full disciplinary proceeding, but also the idea that there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority. In re Velasquez, 507 A.2d 145, 147 (D.C.1986). See also In re Childress, 811 A.2d 805, 807 (D.C.2002). Our standard in reciprocal bar discipline proceedings comports with constitutional due process requirements because the attorney either has had an evidentiary hearing or had the right to one. In re Richardson, 692 A.2d 427, 434 (D.C.1997). It also is firmly established that principles of collateral estoppel apply in reciprocal discipline cases. See, e.g., In re Shearin, 764 A.2d 774, 777 (D.C.2000); In re Benjamin, 698 A.2d 434, 440 (D.C. 1997). Put simply, reciprocal discipline proceedings are not a forum to reargue the foreign discipline.

Here, Zdravkovich responded to the show cause order by filing a brief in which he argued both that he was denied due process in Maryland because he was unable to testify and that the Maryland decision suffers from an infirmity of proof. The Board quite rightly rejected these arguments. Pursuant to the principles set forth above relating to a hearing already afforded in the other jurisdiction, Zdravkovich is not entitled to relitigate or collaterally attack the findings or judgment of the Maryland Court of Appeals. See In re Shearin, 764 A.2d at 777

. See also In re Bridges, 805 A.2d 233, 235 (D.C.2002) (holding that the infirmity of proof "exception is not an invitation to the attorney to relitigate in the District of Columbia the adverse findings of another court in a procedurally fair setting"). The record shows that Zdravkovich was afforded a full hearing before a trial judge in Maryland, and obtained review of the trial judge's findings of fact and conclusions of law from the Maryland Court of Appeals.⁷ Furthermore, the Board properly relied on those findings and conclusions in rendering its...