DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : SUSAN M. ROBBINS, : : Bar Docket No Respondent. : : 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 matter arises from an order of the Supreme Court of Arizona ( Arizona Court ) censuring Respondent. The Board recommends that the District of Columbia Court of Appeals ( Court ) impose identical reciprocal discipline. A. District of Columbia Proceedings I. Procedural Background Respondent is a member of the Bar of the District of Columbia Court of Appeals having been admitted on April 10, Respondent has been administratively suspended for nonpayment of dues since She has been a member of the Arizona Bar since On February 27, 2006, the Arizona Court issued an order censuring Respondent. The record before us does not disclose whether Respondent self-reported the Arizona discipline as D.C. Bar R. XI, 11(b) requires. The Office of Bar Counsel reported the Arizona discipline to our Court which then issued an Order dated June 8, 2006, directing the Board to either: (i) recommend whether identical,

2 greater or lesser discipline should be imputed as reciprocal discipline; or (ii) determine whether the Board should proceed de novo. Order, In re Robbins, No. 06-BG-575 (D.C. June 8, 2006). Respondent lodged a letter with the Board dated June 12, 2006, stating: (i) I would hope that the Board would find that reciprocal discipline was not warranted.... and (ii) Please immediately terminate my membership in the District of Columbia Bar.... On July 6, 2006, Bar Counsel filed a statement with the Board recommending the imposition of identical reciprocal discipline. Respondent filed no reply to this statement. B. Arizona Proceedings The Arizona disciplinary proceedings arise from Respondent s representation of the plaintiff in a medical malpractice action. In Arizona, service of a complaint must be accomplished within 120 days of filing. In seeking an extension of this time from the Court, Respondent stated that the reason for an extension was that the parties have entered into correspondence.... and will require additional time to ascertain whether settlement can be reached.... Arizona Hearing Officer s Report at 3. Respondent had drafted an initial letter raising with the defendant the prospect of settlement which she intended to mail at the time the motion was filed. In fact, the letter was not mailed for nearly two weeks. Accordingly, Respondent s representation to the Court, which formed the basis for the relief she requested in her motion, was not true. Respondent entered into an Agreement for Discipline by Consent in Arizona. She admits that her conduct violated Arizona s Ethical Rules 3.3(a)(1) and 8.4(d). In the circumstances of this case, Arizona ER 3.3(a)(1) is the same as our Rule 3.3(a)(1). Notwithstanding the Office of Bar Counsel s contention to the contrary (Statement of Bar Counsel at p. 5, n.3), we find Arizona s Rule 8.4(d) to be broader than our Rule 8.4(d). In 2

3 Arizona, conduct prejudicial to the administration of justice violates the Rule. Here, conduct must seriously interfere with the administration of justice to constitute a violation. According to the Arizona record, Respondent s inaccurate representation to the Court that settlement discussions were underway became accurate shortly after Respondent filed the request for an extension. There is nothing in the Arizona record that would sustain a finding that Respondent s misrepresentation seriously interfered with the administration of justice. Respondent s conduct may have violated (as she conceded) the Arizona Rule, but on the limited record before us we decline to decide whether it violated the corresponding Rule here. Accordingly, we consider this reciprocal matter based solely on Respondent s Arizona Rule 3.3(a)(1) violation. II. Reciprocal Discipline In this jurisdiction, 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 more of the five exceptions set out in D.C. Bar R. XI, 11(c). See In re Demos, 875 A.2d 636, 642 (D.C. 2005); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). The five exceptions 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 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. 3

4 Respondent here objects to the imposition of reciprocal discipline and in a short letter to the Board tenders her resignation from the D.C. Bar. We address both matters in reverse order. D.C. Rule of Court II, 7 governs voluntary resignation from the Bar. To effect resignation it requires a member in good standing and not under investigation pursuant to D.C. Bar R. XI, 7 to file a written notice with the Secretary of the Bar and Bar Counsel. Due to the pendency of this reciprocal proceeding Respondent is not eligible to resign, nor did she follow the procedure required by 7 in the submission of her letter of resignation. Moreover, 7 clearly provides that resignation is not effective until a member of our Bar receives written acceptance of a properly submitted resignation. No such acceptance was issued here. See In re Phillips, 452 A.2d 345, (D.C. 1982) (per curium). Respondent s resignation letter has no effect here. Respondent urges us not to impose reciprocal discipline. She offers no reasons for her position. She does not cite to any of the five D.C. Bar R. XI, 11(c) considerations, nor does she refer to any of them in even the most general way. Coupled with her statement that she has never practiced here and does not intend to, we construe Respondent s position to be nearly equivalent to no objection at all. Nonetheless, we have considered the D.C. Bar R. XI, 11(c) exceptions and, while exception (4) must be considered, we conclude that none of them warrant a recommendation other than for identical reciprocal discipline. Respondent entered into an agreed disposition in Arizona. After consideration of the undisputed facts and aggravating and mitigating factors, the Arizona Hearing Officer recommended a court-issued censure which the Supreme Court of Arizona duly issued. Bar Counsel seeks identical reciprocal discipline of a public censure. The question is whether 4

5 Respondent s misconduct warrants substantially different discipline in the District of Columbia...." D.C. Bar R. XI, 11(c)(4). In another reciprocal case this one from New York our court had occasion to consider whether a public censure was within the range of sanctions for multiple violations of Rule 3.3. In In re Benjamin, 698 A.2d 434, 441 (D.C. 1997), the Court said: The sanction recommended here, a public censure, is within the range of sanctions that might be imposed in a non-reciprocal case in the District of Columbia involving two instances of misrepresentation. Accord, In re Zentz, 891 A.2d 277 (D.C. 2006) (per curiam). Another recent court decision involving a lawyer who committed a Rule 3.3 violation is In re Parshall, 878 A.2d 1253 (D.C. 2005) (per curium). Because neither the respondent nor the Office of Bar Counsel excepted to the Board s Report in Parshall (Bar Docket No ), the Court's decision accepted our recommendation for an 18-month suspension finding it within the range of sanctions imposed for similar misconduct. The misconduct in Parshall was far more grave than Respondent s misconduct. Parshall lied to the court repeatedly, lied to opposing counsel and fabricated documents to cover up his deception. Nevertheless our Report discussed the range of sanctions issued in this jurisdiction for Rule 3.3 violations at some length (Report at 20-34). In the final analysis, we do not consider the sanction imposed in Parshall to require us to impose a more severe sanction than the identical reciprocal discipline of a censure that Bar Counsel recommends. Parshall marks one point on the range of sanctions for Rule 3.3 violations, and Benjamin and Zentz the other. As we noted in our Parshall Report (at 35), citing In re Haupt, 422 A.2d 768, 771 (D.C. 1980) (per curiam): Within the limits of the mandate to 5

6 achieve consistency, each case must be decided on its particular facts." In reaching our conclusion, we also place substantial weight on the position of Bar Counsel Conclusion Based on the foregoing, the Board recommends that the Court impose identical reciprocal. discipline of a public censure of the Respondent. BOARD ON PROFESSIONAL RESPONSIBILITY All members of the Board concur in this Report and Recommendation except Ms. Williams and Ms. Kapp, who did not participate.