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: : : MARY D. BRENNAN, : : Respondent. : D.C. App. No. 04-BG-148 : Bar Docket No A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This reciprocal discipline case is based on the January 22, 2004 order of the Court of Appeals of Maryland (the Maryland Court ) suspending Respondent Mary D. Brennan for 90 days by consent. The Board recommends that the District of Columbia Court of Appeals (the Court ) impose identical reciprocal discipline of a 90-day suspension, nunc pro tunc to March 9, 2004, the effective date of the filing of Respondent s D.C. Bar R. XI, 14(g) affidavit. I. Background Respondent was admitted to the District of Columbia Bar on December 7, She is also a member of the Maryland Bar, having been admitted on December 20, Bar Counsel filed a certified copy of the Maryland Court s order of suspension with the Court on February 27, By order of March 4, 2004, the Court, inter alia, suspended Respondent on an interim basis pursuant to D.C. Bar R. XI, 11(d), directed her to show cause why identical discipline should not be imposed and directed the Board either to: (i) recommend whether identical, greater or lesser discipline should be imposed

2 as reciprocal discipline, or (ii) determine whether the Board should proceed de novo. Order, In re Brennan, No. 04-BG-148 (D.C. Mar. 4, 2004). On November 3, 2004, and while this case was pending before the Board, Respondent filed a motion with the Court of Appeals seeking nunc pro tunc treatment of her notice of the Maryland discipline, which she claimed to have filed with the District of Columbia Bar on February 20, 2004, and of a D.C. Bar R. XI, 14(g) affidavit she claimed to have mailed to the Board and Bar Counsel on March 9, Respondent further moved the Court to vacate its March 4, 2004 interim order of suspension because her Maryland suspension had expired. Bar Counsel opposed nunc pro tunc treatment and the lifting of the Court s interim order of suspension on the grounds that Respondent s 14(g) affidavit failed to comply with the core notice requirements of the rule, was neither notarized nor contained the verification required by D.C. Ct. App. R. 1(b)(1), and was not filed with the Court. Respondent filed a notarized supplemental 14(g) affidavit with the Court on December 2, On December 1, 2004, the Board, through its Chair, issued an order deferring its consideration of reciprocal discipline, since Respondent s motion for nunc pro tunc treatment was pending before the Court and bore directly on the material question of 14(g) compliance and, specifically, whether Respondent should be given credit toward a reciprocal suspension for the time she has remained suspended on an interim basis pursuant to D.C. Bar R. XI, 11(d). 1 Respondent did not file the original affidavit with the Board, as required by 14(g), but instead served the Board with a copy of the affidavit. 2

3 By order dated December 14, 2004, the Court granted Respondent s motion for nunc pro tunc treatment and directed the Clerk of the Court to file Respondent s Bar notification of her Maryland suspension and her 14(g) affidavit nunc pro tunc to March 9, Order, In re Brennan, No. 04-BG-148 (D.C. Dec. 14, 2004). The Court also vacated its March 4, 2004 order of interim suspension, without prejudice to the authority of the Board to recommend, and the Court to impose, different discipline from, or more substantial than that ordered by the Maryland Court. Id. In a statement filed with the Board on April 5, 2004, Bar Counsel recommends the imposition of a 90-day suspension as identical reciprocal discipline. Respondent has not filed a response to Bar Counsel s statement or otherwise opposed the imposition of reciprocal discipline. II. The Maryland Proceedings The Attorney Grievance Commission of Maryland filed a Petition for Disciplinary or Remedial Action charging Respondent with the failure to file income tax returns, misconduct with respect to her attorney escrow account and the unauthorized practice of law during a period of decertification. On October 7, 2003, a hearing was held before the Circuit Court for Montgomery County, Maryland (the Circuit Court ). On November 25, 2003, the Circuit Court issued findings of fact and conclusions of law. It found that Respondent failed to file federal and state income tax returns for 1999, 2000 and 2001, that the failure to file was willful and that it violated 26 U.S.C and Md. Tax-General Code Ann (d). The Circuit Court concluded that Respondent violated Maryland Rule of Professional Conduct ( MRPC ) 8.4(b) (criminal 3

4 act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer), and MRPC 8.4(d) (conduct prejudicial to the administration of justice). The Circuit Court also found that Respondent committed the charged escrow account violations. It concluded that she violated Maryland Rule , when she opened an account for the deposit of client funds, which was improperly titled Mary D. Brennan, P.C., escrow account; 2 that she violated Maryland Rule (a), when she used the account to deposit personal funds and pay her personal expenses; 3 and that she violated Maryland Rule , when she drew checks on the escrow account payable to cash. 4 The Circuit Court found that Respondent did not commingle funds in the account or use the account to conceal assets from creditors. 2 Maryland Rule provides: An attorney or law firm shall maintain each attorney trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as Attorney Trust Account, Attorney Escrow Account, or Clients Funds Account on all checks and deposit slips. The title shall distinguish the account from any other fiduciary account that the attorney or law firm may maintain and from any personal or business account of the attorney or law firm. 3 Maryland Rule (a) provides: An attorney or law firm may deposit in an attorney trust account only those funds required to be deposited in that account by Rule or permitted to be so deposited by section (b) of this Rule. Maryland Rule provides, in pertinent part: Except as otherwise permitted by rule or other law, all funds, including cash, received and accepted by an attorney or law firm in this State from a client or third person to be delivered in whole or in part to a client or third person, unless received as payment of fees owed the attorney by the client or in reimbursement for expenses properly advanced on behalf of the client, shall be deposited in an attorney trust account in an approved financial institution. 4 Maryland Rule provides, in pertinent part: An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer. 4

5 Finally, the Circuit Court found that Respondent violated MRPC 5.5 (unauthorized practice of law), when she provided legal advice regarding a tax matter to her employer, an insurance broker, at a time she was decertified from practice by the Maryland Court. 5 Following issuance of the findings of the Circuit Court, Respondent, through counsel, and the Attorney Grievance Commission of Maryland filed an undated Joint Petition for Ninety-Day Suspension by Consent ( Joint Petition ) with the Maryland Court. The Joint Petition recites, inter alia, the violations findings of the Circuit Court, and sets forth Respondent s consent to a 90-day suspension. In an attached affidavit, Respondent states, inter alia, that her consent was freely and voluntarily given, that she was aware of the effects of the suspension and that she knew that a hearing on these matters has been held and that sufficient evidence has been produced to sustain the allegations of misconduct. Statement of Bar Counsel, Attachment C. On January 22, 2004, the Maryland Court suspended Respondent by consent for 90 days based on the Joint Petition. III. Reciprocal Discipline There is a presumption in favor of imposing identical reciprocal discipline that may be rebutted by the establishment, through clear and convincing evidence, of one or 5 Bar Counsel states that it was informed by an Assistant Bar Counsel in Maryland that the decertification in Maryland was based on Respondent s failure to pay an annual fee to the Maryland Clients Security Fund. Bar Counsel s Statement at 7 n.5. 5

6 more of the five exceptions set forth in D.C. Bar R. XI, 11(c). 6 D.C. Bar R. XI, 11(f); see In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). When, as here, a respondent does not contest reciprocal discipline, the Board s role is limited to reviewing the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline.... In re Childress, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)). The imposition of identical discipline when the respondent fails to object should be close to automatic, with minimum review by both the Board and this court. In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (per curiam). The rationale behind this summary review of uncontested reciprocal discipline is a general reluctance by the court to have the disciplinary law of the District of Columbia... developed in proceedings that are characterized by deference to another jurisdiction s judgment and also by the absence of... adversary argument. Childress, 811 A.2d at 807 (quoting In re Goldsborough, 654 A.2d 1285, 1287 n.5 (D.C. 1995)). In accordance with our limited role, we have examined the record and find nothing that rises to the level of an obvious miscarriage of justice. Accordingly, we recommend the imposition of identical reciprocal discipline. See Childress, 811 A.2d at The five exceptions under D.C. Bar R. XI, 11(c) are as follows: (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 an 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. 6

7 First, we find no evidence that Respondent was denied due process or that there was an infirmity of proof in the Maryland proceeding. Respondent voluntarily consented to the Maryland discipline. Her sworn acknowledgement that she was aware that a hearing had been held and that sufficient evidence had been produced to sustain the allegations of misconduct is an adequate basis for imposing reciprocal discipline. See, e.g., In re Hines, 867 A.2d 963 (D.C. 2005) (per curiam). The most serious aspects of Respondent s misconduct in Maryland also would constitute misconduct in this jurisdiction. See D.C. Bar R. XI, 11(c)(5). Willfully failing to file income tax returns violates our Rule 8.4(b) (criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness); see, e.g., In re Shorter, 570 A.2d 760 (D.C. 1990) (per curiam) (discipline based on criminal conviction for failure to file income tax returns); 7 In re Levitt, 724 A.2d 1206 (D.C. 1999) (per curiam) (same); see also In re O Toole, No. 04-BG-245 (D.C. June 23, 2005) (per curiam) (reciprocal discipline for failure to file tax returns; no conviction). 8 Respondent s unauthorized practice of law, which was found to violate MRPC 5.5, would violate this jurisdiction s identical provision, Rule 5.5. Respondent s escrow account violations, however, do not have direct counterparts in the District of Columbia and would not constitute misconduct in this jurisdiction. The requirements of Maryland Rule regarding how to title an escrow account are more 7 In Shorter, the Court concluded that the willful failure to file income tax returns does not violate Rule 8.4(d) (conduct that seriously interferes with the administration of justice). 570 A.2d at 769 (discussing DR 1-102(A)(5), the predecessor to Rule 8.4(d)). 8 There are several original cases in the District of Columbia where the Court has imposed discipline based on misdemeanor convictions for failure to file income tax returns in violation of 26 U.S.C See, e.g., Shorter, 570 A.2d at 771; Levitt, 724 A.2d at

8 specific than those set forth in the parallel District of Columbia provision, Rule We agree with Bar Counsel that the titling of Respondent s escrow account would not violate Rule And there is no counterpart in the District of Columbia to Maryland Rule , which prohibits writing a check payable to cash from an escrow account. Maryland Rule also is broader than the District of Columbia s prohibition against commingling under Rule 1.15(a). Under Maryland Rule , which specifically limits deposits into an escrow account to deposits of client or third party funds, the deposit of personal funds in an attorney trust account is deemed to be commingling; under our Rule 1.15(a), commingling occurs only where client or third party funds are commingled with non-entrusted funds. See In re Schwartz, BDN (BPR Apr. 11, 2002), aff d, 802 A.2d 339 (D.C. 2002) (per curiam). In this case, the Circuit Court found that Respondent did not commingle entrusted and personal funds in her escrow account. Thus, Respondent s violation of Maryland Rule would not constitute misconduct in the District of Columbia. 9 Our conclusion that not all of Respondent s misconduct constitutes misconduct in the District of Columbia does not alter our recommendation as to the appropriate reciprocal discipline in light of our findings that Respondent s failure to file income tax returns and her unauthorized practice of law constitute misconduct in this jurisdiction and support the imposition of an identical reciprocal discipline sanction. 9 To the extent that Bar Counsel maintains that the deposit of personal funds into a trust account is inconsistent with the policy underlying Rule 1.17 (but does not violate its terms), the Board rejected that position in Schwartz, BDN at

9 We also find that the imposition of identical reciprocal discipline would not constitute a grave injustice, nor does it warrant substantially different discipline in the District of Columbia. For criminal misdemeanor convictions involving the failure to file tax returns, the Court has imposed a six-month suspension. See, e.g., Levitt, 724 A.2d at The unauthorized practice of law while administratively suspended is likely to result in a sanction less than suspension. See In re Duvall, BDN (BPR Feb. 12, 1987) (reprimanding attorney for practicing while administratively suspended and other violations). Taking these violations together, we find that identical reciprocal discipline of a 90-day suspension for Respondent s misconduct is within the range of sanctions that would be imposed if this case were considered as an original matter. We therefore recommend that the Court impose identical reciprocal discipline of a 90-day suspension. IV. The Effective Date of Reciprocal Discipline In its December 14, 2004 order, the Court granted the nunc pro tunc filing of Respondent s 14(g) affidavit to March 9, 2004, and vacated its order of interim suspension. We understand the Court s order to mean that Respondent s original 14(g) affidavit, as supplemented by the second affidavit she filed with the Court on December 2, 2004, complies with the requirements of the rule and that she should be given credit toward a reciprocal suspension for the time she was suspended on an interim basis pursuant to D.C. Bar R. XI, 11(d). Accordingly, we recommend that Respondent s 90-day suspension run from March 9, 2004, and that because she has served that period of suspension, that no further suspension be imposed by the Court. 9

10 Conclusion Based upon the foregoing, we recommend that the Court impose identical reciprocal discipline of a 90-day suspension, nunc pro tunc, to March 9, BOARD ON PROFESSIONAL RESPONSIBILITY By: Martin R. Baach Chair Dated: July 28, 2005 All members of the Board concur in this Report and Recommendation except Dr. Payne and Ms. Helfrich, who did not participate. 10

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