DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) MICHAEL A. CEBALLOS ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter is before the Board for a recommendation whether identical, greater or lesser discipline should be imposed on Respondent as the result of discipline imposed by the Supreme Court of Florida. Respondent is a member of both the Florida and the District of Columbia Bars. He was admitted here on December 18, 1981 and in Florida on November 5, On August 17, 2000, the Supreme Court of Florida ordered Respondent suspended from the practice of law for 30 days, and then placed on probation for two years with the condition that he continue under the terms of a contract with a corporation affiliated with the Florida Bar (FLA, Inc.) which provides a rehabilitation program for alcoholics. Respondent was also ordered to pay $5,000 in restitution to one of his former clients for whom he failed to perform meaningful services and assessed $3, in costs. On November 2, 2000, when Respondent's discipline in Florida was brought to the attention of the Court, an order was entered suspending Respondent pursuant to D.C. App. R. XI, 11(d) and directing the Board to recommend whether reciprocal discipline should be imposed. In re Ceballos, No. 00-BG-1374.

2 The Florida Proceedings Respondent was charged in five separate matters. In three of these matters, which involved clients charged with criminal offenses, he failed to make court appearances and failed adequately to advise these three clients of the status of their cases. In a fourth case, Respondent represented a plaintiff in an employment matter where the case was dismissed for lack of prosecution. Respondent also failed to keep this client appropriately advised as to the status of her case. In the final matter, Respondent failed to file necessary pleadings and failed to adequately communicate with his client. The Supreme Court of Florida appointed a circuit court judge to serve as a referee in Respondent's consolidated matters. On May 22, 2000, Respondent entered into a Conditional Guilty Plea For Consent Judgment in which he admitted violating Rules (Diligence) and (a) and (b) (Communication) of the Florida Rules of Professional Conduct with regard to all five matters. This conditional guilty plea recommended the sanction that was ultimately imposed. On June 22, 2000, the referee recommended to the Supreme Court of Florida that the consent judgment be accepted. The referee found that during the time period when Respondent's misconduct occurred, he was suffering from the effects of severe alcohol addiction. He further found that Respondent had voluntarily submitted himself to treatment, had been sober and alcohol-free since January 1998, and that the rehabilitative process was continuing "with great success." The referee concluded by noting that Respondent's successful efforts at treatment and rehabilitation are well documented and there is substantial evidence that his professional competence and responsibility have been restored. 2

3 On August 17, 2000, the Supreme Court of Florida adopted the referee's report by accepting the consent judgment and imposed the recommended sanction of a 30-day suspension from the practice of law, followed by probation for two years with specific alcohol rehabilitation treatment, and restitution in the amount of $5,000. Reciprocal Discipline Reciprocal discipline should be imposed unless there is clear and convincing evidence that one of the enumerated exceptions of D.C. App. R. XI, 11(c) applies. In re Berger, 737 A.2d 1033, (D.C. 1999); In re Gardner, 650 A.2d 693, 695 (D.C. 1994). There is a rebuttable presumption under 11(c) that the discipline will be the same in the District of Columbia as it was in the original jurisdiction. In re Berger, 737 A.2d at 1040; In re Jones, 686 A.2d 560, 561 (D.C. 1996) (per curiam); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). In this matter, Respondent acknowledged in his Conditional Guilty Plea for Consent Judgment that he had been afforded full procedural and substantive due process. He had the opportunity to respond and did respond to the charges in Florida. His Florida misconduct would have also been a violation of the ethical rules of the District of Columbia and there was no infirmity of proof. Thus, Respondent's misconduct warrants reciprocal discipline in this jurisdiction. The range of sanctions for an attorney who has engaged in a pattern of serious neglect and gross inattention to the affairs of his clients generally runs from a suspension of three months to a suspension of a year or longer. Such suspensions are often accompanied with the requirement that the attorney prove fitness to practice law. See, e.g., In re Grimes, 687 A.2d 198 (D.C. 1996)(per curiam) (serious neglect of five client 3

4 matters warranted one-year suspension with fitness); In re Lyles, 680 A.2d 408 (D.C. 1996) (six-month suspension with fitness for a pattern of neglect in four matters); In re Ryan, 670 A.2d 375 (D.C. 1996) (four-month suspension with fitness for pattern of neglect and intentional failure to seek client objectives); In re Delate, 579 A.2d 1177 (D.C. 1990) (sixmonth suspension with fitness for pattern of neglect). Given these cases, it is likely that Respondent would have received a sanction of at least a 30-day suspension had this been an original matter here. The Supreme Court of Florida, however, appears to have accorded substantial mitigation to the fact that Respondent's misconduct was directly related to a severe alcohol addiction, that Respondent had achieved significant rehabilitation from that condition, and the fact that Respondent's professional competence and responsibility had been restored. This Court has accorded similar mitigation to alcohol impaired attorneys who subsequently recovered from their impairment and regained their competency. See In re Reid, 540 A.2d 754 (D.C. 1988)(per curiam) (reciprocal probation in lieu of disbarment for multiple acts of misconduct where attorney demonstrated that alcohol caused the misconduct and that he had achieved substantial rehabilitation and his ability to practice law); In re Kersey, 520 A.2d 321 (D.C. 1987) (same); see also In re Miller, 553 A.2d 201 (D.C. 1989) (30-day suspension appropriate in light of mitigating factors including alcoholism). The Supreme Court of Florida also considered the fact that Respondent had no prior discipline. The two years probation imposed on Respondent by the Supreme Court of Florida follows his 30-day suspension. This Court has previously imposed suspensions followed by probation in reciprocal cases, particularly, but not necessarily, where the misconduct is related to a disability. See, e.g., In re George, 726 A.2d 1237 (D.C. 1999); In re Mizel, 703 4

5 A.2d 1249 (D.C. 1997)(per curiam); In re Hirschberg, 565 A.2d 610 (D.C. 1989)(per curiam) (probation following a public censure in a reciprocal discipline matter with attorney required to file quarterly alcohol rehabilitation reports); see also, In re Banks, 709 A.2d 1181 (D.C. 1998). Based on a review of the caselaw and the underlying facts of this matter, we concur with Bar Counsel's recommendation that the Court impose identical reciprocal discipline of a 30-day suspension followed by a two-year probationary period, with all the terms and conditions of probation imposed by the Supreme Court of Florida to serve as terms and conditions of probation in the District of Columbia. See In re Chadwick, 585 A.2d 798, 801 (D.C. 1991). The probation here should be unsupervised. See In re Klein, 723 A.2d 864, 867 (D.C. 1999). This sanction falls within the range of sanctions that might be imposed in the District of Columbia. During this period of probation, Respondent should be required to participate in the Florida Bar's rehabilitation program for at least until such time as he is no longer required to participate under the terms of his Florida probation. Recommendation We recommend the imposition of identical reciprocal discipline, namely that Respondent be suspended in this jurisdiction for 30 days, followed by two years of unsupervised probation with the condition that he file quarterly reports with the Board and Bar Counsel demonstrating his continued successful participation in the Florida Bar's alcoholism rehabilitation program. Respondent shall also certify to the Board and Bar Counsel his successful completion of his Florida probation when that event occurs. Respondent should also be required to provide the Board and Bar Counsel with proof that he has paid the $5,000 in restitution as ordered by the Supreme Court of Florida. 5

6 This 30-day suspension should be deemed to commence for reinstatement purposes when Respondent files an affidavit complying with the requirements of D.C. App. R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, 1333 (D.C. 1994). Respondent has not filed this affidavit to date. BOARD ON PROFESSIONAL RESPONSIBILITY By: Paul L. Knight Dated: April 30, 2001 All members of the Board on Professional Responsibility concur in this Report and Recommendation, except Ms. Ossolinski, who did not participate. 6

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