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: ) ) DUSHAN S. ZDRAVKOVICH, ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY Respondent is a member of the District of Columbia Bar, having been admitted by examination in Respondent was also a member of the Maryland Bar. On December 4, 2000, the Maryland Court of Appeals indefinitely suspended Respondent from the practice of law in Maryland, based on its determination that Respondent had violated several ethical rules in his representation of two clients in related litigation. Bar Counsel argues, and we agree, that Respondent should receive the reciprocal, but not identical, sanction here of nine months suspension, along with a requirement that Respondent show his fitness to practice law before being allowed to resume such practice here. I. The facts underlying Respondent s discipline are set forth in detail in the opinion accompanying the Maryland court s order. Respondent represented Val Weaver and James Impero in litigation against North American Technology Group ( NATG ). Weaver handled business development and government relations for NATG. Impero was

2 a biochemist employed by the company and was also an officer and a director of NATG. 1. The Texas state court and Maryland federal court actions. On January 23, 1995, NATG attached Impero s belongings and locked him out of his office. Impero executed a letter of resignation from NATG. After initially retaining a Texas law firm, Impero retained Respondent to assist him in matters arising out of his resignation and the recovery of his personal property. In April 1995, NATG initiated litigation against Weaver and Impero in Texas state court, alleging various causes of action. After Weaver was brought into the Texas lawsuit, he also retained Respondent as his attorney. On June 19, 1995, Respondent, on behalf of Impero, filed suit against NATG and others in the United States District Court for the District of Maryland. The Maryland federal court sent Respondent a letter advising him that the complaint appeared to be deficient in its allegations of subject matter jurisdiction, personal jurisdiction, and venue, and informed Respondent that he would have to address those deficiencies before the court would address the merits of the claims. Respondent took no action in response to the federal court s letter. Rather, on July 31, 1995, Respondent attempted to remove the Texas state court action into the federal district court in Maryland, in light of the fact that Impero and Weaver were residents of Maryland. On August 8, 1995, the federal -2-

3 district judge assigned to the case issued a written opinion in which she noted that Respondent appeared not to understand the bases for such a removal to federal court, and ordered a remand to the Texas state court. At the time that Respondent filed the notice of removal in the Texas state court, the parties had scheduled a hearing in the Texas state court action for August 11, 1995, on NATG s motion for a temporary injunction. Respondent did not send notice of the filing of the removal petition until August 9, and that notice was not received until the next day. At that point, it was too late for NATG to cancel its arrangements for witness travel to the Texas court. NATG filed a motion for sanctions against Respondent, Weaver, and Impero in the Maryland federal court, seeking recovery of its costs of preparation for the aborted injunction hearing. Respondent did not inform Weaver of the sanctions motion. After Weaver learned of the sanctions motion from Impero, he inspected the court file, where he discovered that a response to the motion was due. Weaver attempted to contact Respondent about the motion, without success. Respondent also informed Weaver, through his secretary, that Weaver could not inspect Respondent s copies of the case files. NATG eventually agreed not to pursue sanctions against Weaver and Impero individually, but it did proceed on its motion for sanctions against Respondent. -3-

4 On November 21, 1995, the Maryland district court sanctioned Respondent under Federal Rule of Civil Procedure 11, citing his failure to conduct elementary research into the issue of removal and his failure to explain his actions to the court. The district court ordered Respondent to pay $2500 to NATG. Eventually, Respondent dismissed the federal court action, pursuant to Impero s instructions. 2. The Maryland state court lawsuit. On July 22, 1995, Respondent filed a separate complaint against NATG on Weaver s behalf in the Circuit Court for Charles County, Maryland. On October 24, 1995, NATG moved to dismiss the Maryland state court litigation. Weaver by this point was desirous of settling matters between himself and NATG. On October 27, 1995, Weaver wrote to Respondent explaining that a dismissal of the Maryland action was necessary for a successful mediation of the Texas lawsuit, and directing that Respondent voluntarily dismiss the Maryland lawsuit without prejudice. Respondent, however, did not act on Weaver s instructions or respond to Weaver. On November 7, 1995, Weaver wrote to Respondent, dismissing Respondent from representing him in all litigation against NATG. On November 24, 1995, Respondent filed a motion to withdraw his appearance in the Maryland litigation. The court granted that motion on December 13, 1995, but rescinded its approval of his withdrawal on January 5, 1996, when the court learned that Weaver -4-

5 had not consented to Respondent s withdrawal because Weaver did not know that Respondent had never moved to dismiss the case. On April 16, 1996, NATG moved again to dismiss the Maryland case. Respondent did not answer that motion. The Maryland Court informed Weaver of the motion directly, and on June 11, 1996, Weaver filed pro se a motion for voluntary dismissal. The Maryland court granted that motion. 3. Accounting. The evidence in the Maryland disciplinary proceeding established that Respondent kept no time sheets, and that his accounting for time and expenses was chaotic and fanciful. Respondent told Weaver s wife, who worked for Respondent on occasion, to tell Impero that Impero owed him $7000 in fees and $500 in expenses. Impero demanded an accounting, which Respondent never provided. On October 5, 1995, Respondent wrote to Impero, requesting a payment of $7500, and further payments of $5000 per month to finance the litigation. In 1996, Respondent also told a private investigator hired by him that he wanted $150,000 in fees from the Weavers within 48 hours, and that if the Weavers did not pay, Respondent would ruin Weaver and his security clearance, and would bring criminal charges against him. The investigator relayed that information to Marilyn Weaver. The Maryland Circuit Court for Anne Arundel County held a full evidentiary hearing on disciplinary charges brought against -5-

6 Respondent by the Maryland Attorney Grievance Commission, after which it concluded that Respondent violated Maryland Rules of Professional Conduct 1.1 (failure to provide competent representation, by his failure to research the bases of removal from state court to federal court), 1.3 (failure to act with reasonable diligence and promptness in representing clients, by his failure to keep Weaver even minimally informed of developments in the litigation), 1.4 (failure to keep a client reasonably informed about the status of a matter, through the same conduct), 1.5(a) (charging an unreasonable fee, through his representation to Marilyn Weaver, through the private investigator, that he claimed $150,000 fees), 3.1 (assertion of frivolous contentions, through his baseless attempt to remove the Texas action to the federal court in Maryland), 8.4(a)(violating the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice, through the removal of the Texas lawsuit and his forcing NATG to incur expenses for the Texas hearing). On Respondent s appeal, the Maryland Court of Appeals affirmed the Circuit Court s findings of violations. The Maryland Court of Appeals also noted that Respondent had previously received an unpublished reprimand, as reciprocal discipline from a District of Columbia case. After surveying other, similar cases, the court concluded that Respondent should be suspended from the practice of law indefinitely, but should have the right to apply for -6-

7 readmission. The court did not, however, direct that Respondent would be eligible to apply for readmission only after he had served some minimum, definite period of suspension. II. Reciprocal discipline should presumptively be imposed on Respondent by this jurisdiction unless Respondent demonstrates, by clear and convincing evidence, that one of the exceptions in D.C. App. R. XI, 11(c) applies -- e.g., that he failed to receive due process, that his misconduct did not violate the ethical rules of the District of Columbia, or that the order finding him in violation of the Maryland rules was lacking in proof. See In re Gardner, 650 A.2d 693 (D.C. 1994). No such exception is applicable here. Respondent received due process. In particular, we reject Respondent s contention that the Anne Arundel Circuit Court deprived him of a fair opportunity to respond to the charges against him because he was seriously ill at the time of the evidentiary hearing on those charges. If Respondent was indeed seriously ill at the time, he might have had a basis to ask the Circuit Court for a continuance. But Respondent has not pointed to anything in the record to suggest that the Circuit Court unfairly denied him such a continuance or some other accommodation. We also find no infirmity of proof, and the bulk of Respondent s misconduct plainly violated the analogous District of Columbia Rules of Professional Conduct. Thus there is a strong presumption that -7-

8 discipline should be imposed here on a reciprocal basis. See In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). The disciplinary system of the District of Columbia does not have an exact equivalent in original cases to Maryland s sanction of indefinite suspension. Our Court of Appeals has dealt on several occasions with similar sanctions issuing from the Maryland courts. In In re Dietz, 675 A.2d 33 (D.C. 1996)(per curiam), the Court of Appeals accepted the Board s recommendation that, when the Maryland Court of Appeals indefinitely suspended a lawyer from the practice of law, but allowed him to apply for readmission immediately (without a minimum term of suspension), the appropriate course here was for the lawyer to receive a definite term of suspension from the practice of law, after which the attorney must apply for readmission here, showing his fitness to practice law. Accord In re Lilly, 765 A.2d 547, 548 (D.C. 2001)(per curiam); In re Perweiler, 761 A.2d 278, 278 (D.C. 2000)(per curiam). In addition, the Court of Appeals decision in In re Berger, 737 A.2d 1033 (D.C. 1999), requires modification of the fitness requirement where the reciprocal discipline is based on discipline imposed in a jurisdiction like Maryland, which permits the attorney to be reinstated without a full-fledged fitness hearing if Bar Counsel (or the equivalent) in the original jurisdiction does not oppose the attorney s application for readmission. If the original state s Bar Counsel raises no objection to the attorney s -8-

9 application for reinstatement, then reinstatement to the practice of law in that state may be summary, in which case the attorney may also apply here for vacatur of the reciprocal fitness requirement. See id. at ; see also Board Rule 8.7. On the other hand, if the original state s Bar Counsel does object to the Respondent s compliance, then the suspended attorney has the opportunity to prove his fitness to resume the practice of law at a plenary hearing, similar to the hearing contemplated in In re Roundtree, 503 A.2d 1215 (D.C. 1985). We therefore must determine what definite term of suspension is appropriate in Respondent s case. In so doing, we consider what sanction would be imposed in an original disciplinary proceeding in this jurisdiction with similar facts. See In re Kuhn, 764 A.2d 239, 240 (D.C. 2000)(per curiam). Respondent s case goes beyond one of simple neglect. In the first place, the neglect in this case was particularly aggravated, in that it exposed a client to a threat of substantial monetary liability. Respondent failed to inform Weaver that a motion for monetary sanctions was pending against him in his individual capacity in the Maryland federal court litigation. That misconduct by itself might well warrant a term of suspension. Respondent s failure to act on Weaver s instruction to dismiss the Maryland state litigation also threatened prejudice to Weaver s interests, -9-

10 because it may have impaired or prevented the possibility of settlement of the Texas litigation. Second, Respondent s frivolous and last-minute attempt to remove the Texas litigation to federal court in Maryland, which appears to have been undertaken solely to cause delay and to cause other parties to incur needless costs, indicates at least a reckless disregard of the attorney s most basic obligations to courts and litigants. Third, Respondent s outrageous attempt to secure a massive and utterly unearned attorney s fee from Weaver by threatening criminal prosecution against him casts grave doubt on his character and fitness to practice law. Fourth, Respondent has a history of prior discipline. In an original disciplinary matter in this jurisdiction, Respondent was found to have neglected legal matters and engaged in conduct prejudicial to the administration of justice in his representation of three vulnerable, mentally ill clients who had been involuntarily committed to St. Elizabeth s Hospital in the District of Columbia. The Court ordered a 60-day suspension, stayed the suspension for one year, and placed Respondent on probation for that year. See In re Zdravkovich, 671 A.2d 937 (D.C. 1996)(per curiam). This case shows a similar kind of misconduct -- in particular, a failure to keep clients informed of the most basic and important events that have a direct and substantial impact on -10-

11 their interests, and a blithe attitude towards the obligation to deal with courts and litigants in a prompt and above-board manner. No mitigating circumstances are present here. After surveying the pertinent case law, we conclude that Respondent should be suspended for nine months (as well as being subject to a fitness requirement for reinstatement). In cases involving neglect compounded by other serious violations, a considerable range of suspensory sanctions is available. Compare In re Robinson, 736 A.2d 983 (D.C. 1999) (two months suspension plus fitness where attorney s neglect, which may have been influenced by her emotional instability, led to unnecessary incarceration of her client, and where attorney failed to respond to Bar Counsel inquiries), with In re Tinsley, 582 A.2d 1192 (D.C. 1990) (one-year suspension plus fitness in case involving six consolidated matters, all showing carelessness and indifference to clients and courts). This case is plainly more serious than Robinson and less grave than Tinsley. Robinson involved an attorney who was emotionally fragile and who had not, as Respondent has done, purposely engaged in frivolous litigation conduct and abusive behavior towards a client (here, the attempt to secure the $150,000 fee from Weaver). See Robinson, 736 A.2d at 983. On the other hand, while Respondent s misconduct was serious, it was not so pervasive as that in Tinsley, where the misconduct occurred in several unrelated matters. See Tinsley, 582 A.2d at The -11-

12 misconduct in this case, although involving several different pieces of litigation, all occurred in essentially one related representation. In original cases of roughly similar gravity, where the respondent neglects a legal matter and also commits other serious violations in the course of the representation (including, as here, conduct seriously interfering with the administration of justice), the sanctions tend to cluster at around six months suspension. See In re Lyles, 680 A.2d 408 (D.C. 1996)(per curiam); In re Jones, 534 A.2d 336 (D.C. 1987) (per curiam); In re Whitlock, 441 A.2d 989 (D.C. 1982); In re Russell, 424 A.2d 1087 (D.C. 1980); see also In re Ryan, 670 A.2d 375 (D.C. 1996) (four months suspension plus fitness and restitution). The misconduct in this case seems to us somewhat more serious than the misconduct in Lyles and Jones. Jones involved an attorney who failed to file accountings in the probate court in guardianship matters and failed to respond to inquiries from Bar Counsel. See Jones, 534 A.2d at 336. The Respondent in Jones also had a long record of prior discipline. Id. at 341. The misconduct in Jones did not, however, involve frivolous legal assertions or abusive behavior towards clients. Lyles involved an attorney who neglected filing deadlines in four separate bankruptcy matters and who had failed to appear at court hearings, but the attorney in that case had no history of prior discipline. Lyles, 680 A.2d at 908. The willfulness of -12-

13 Respondent s conduct and his prior discipline (at least some of which occurred after the Court of Appeals placed him on probation in the earlier disciplinary case) also make this case more grave than Whitlock, Russell, and Ryan. In light of the seriousness of Respondent s neglect of the legal matters entrusted to him, his disregard of his obligations to courts and litigants, and his history of prior discipline, we concluded that nine months suspension, coupled with a fitness requirement, is appropriate. The misconduct in this case is at least of the same order as that in In re Drury, 683 A.2d 465 (D.C. 1996), a reciprocal case from Virginia. In Drury, Virginia imposed a public reprimand with terms on an attorney who had failed to preserve his client s right to appeal in a criminal case and who had practiced law during a period of suspension, without informing his client or the court of the fact of his suspension. The respondent in Drury, like Respondent here, had a history of prior discipline in the District of Columbia and indeed, like Respondent here, committed his misconduct even after he was aware that he was under investigation for ethical violations in the District of Columbia. See In re Drury, Bar Docket No (BPR Feb. 16, 1993) at 7-8. In Drury, the Board initially recommended nine months suspension and proof of fitness in light of the gravity of the misconduct. The Board concluded, in particular, that the case was -13-

14 more serious than other cases in which six months suspension had been ordered for neglect and dishonesty; in those other, less serious cases, the attorney had no prior discipline and mitigating factors were present. See Drury, Board Report at 9. Here, Respondent does have prior discipline, and mitigating factors are not present. In Drury, the Board and the Court subsequently determined that the suspension and the fitness requirement should be stayed in favor of two years probation, in light of evidence linking Drury s misconduct to his clinical depression. See Drury, 683 A.2d at 469. No evidence is present in this case that might warrant such a stay of the suspension or the fitness requirement. We therefore recommend to the Court of Appeals that Respondent be suspended from the practice of law for nine months, and that, after that nine-month period, Respondent should be required to demonstrate his fitness to practice law before being permitted to resume that practice here. Respondent should be allowed to apply to the Board for vacatur of that fitness requirement if he is summarily reinstated in Maryland. See Board Rule 8.7. We remind Respondent that the nine-month period, from which his eligibility to apply for reinstatement is measured, cannot begin until he files the affidavit required by D.C. App. R. XI, 14(g). See In re Slosberg, 650 A.2d 1329 (D.C. 1994). THE BOARD ON PROFESSIONAL RESPONSIBILITY -14-

15 By: Paul R.Q. Wolfson Dated: March 11, 2002 All members of the Board concur in this Report and Recommendation, except Ms. Taylor and Mr. Baach, who did not participate. Elizabeth J. Branda, the Board s Executive Attorney, is recused from participation in this matter. -15-

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