WASHINGTON STATE BAR ASSOCIATION
ELC DRAFTING TASK FORCE
Meeting Agenda
November 5, 2009
10:00 a.m. to noon
Washington State Bar Association
1325 Fourth Avenue – Suite 600
Seattle, Washington 98101
1.
Call to Order/Preliminary Matters (10:00 a.m.)
•
Approval of September 10, 2009 meeting minutes [pp. 548–551]
•
Note: Materials pp. 552–591 are proposals for discussion in Subcommittee
and have been forwarded to the appropriate Subcommittees [pp. 552–590]
2.
Presentation by Community Watch re: ELC 7.1
3.
New Business
•
4.
Consent Calendar
•
5.
Task Force A Request for Guidance on Diversity Language [p. 592–593]
Task Force A [p. 594]
Future meeting schedule
Thursday, January 14, 2010, 10:00 a.m. to noon
Materials Deadline: Tuesday, January 5, 2010
Thursday, February 11, 2010, 10:00 a.m. to noon
6.
Materials Deadline: Tuesday, February 2, 2010
Adjourn (noon)
- 547 -
ELC Drafting Task Force Minutes – DRAFT
September 10, 2009
Minutes – September 10, 2009 - DRAFT
ELC Drafting Task Force
Present: Geoff Gibbs, Chair, Erika Balazs (phone), Randy Beitel, Kim Boyce,
James Danielson, Seth Fine, Bruce Johnson, Patrick Sheldon, David Summers,
Norma Linda Ureña, Charlie Wiggins, Matt Williams (phone), and Scott Busby,
Reporter
Call to Order/Approval of Minutes
The Chair called the meeting to order at 10:00 a.m. and called for amendments
or additions to the draft minutes from the July 22, 2009 meeting. Hearing none,
the Chair deemed the minutes approved.
Subcommittee Reports
Subcommittee C:
Mr. Wiggins reported for Subcommittee C. Mr. Wiggins related that the
subcommittee found the BOG approved items more controversial than
anticipated and characterized the report as a request by the subcommittee for
guidance. He began by reviewing ABA Recommendation 4, which encompassed
Disciplinary Board review of disbarment and suspension recommendations.
While rejecting the ABA’s suggestion to eliminate mandatory Board review of
suspension and disbarment recommendations, the BOG accepted the idea of
streamlined review. Currently, hearing officer recommendations of suspension or
disbarment trigger the production of the entire record for Board review. Under
the process endorsed by the BOG, only the hearing officer’s findings and
recommendation would be disseminated to the Board, from which the Board
could initiate sua sponte review. The subcommittee was in favor, but not
unanimously. Mr. Wiggins invited Mr. Sheldon and Mr. Beitel to comment.
Mr. Sheldon his view that if neither party wishes to appeal, then the hearing
officer’s recommendation should move forward. Sua sponte review by the Board
in such cases would be a burden to both parties, and particularly burdensome for
respondents. Mr. Fine suggested that if costs are the problem, a rule could be
instituted that costs related to Board review would not be assessed against a
respondent when the Board institutes sua sponte review. Mr. Sheldon remarked
that the issue is not simply “costs” imposed by rule, but attorney fees incurred by
the respondent as well as time and stress.
Mr. Beitel noted that ODC would agree, not seeing any particular utility in Board
sua sponte review. However, ODC views sua sponte Board review as a
hypothetical rather than practical issue since it rarely, if ever, occurs.
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ELC Drafting Task Force Minutes – DRAFT
September 10, 2009
Mr. Danielson said that while he is generally in favor of no automatic Board
review in cases where neither party wishes to appeal, he is concerned about the
Board “cherry-picking” cases for review.
Mr. Danielson also felt that
proportionality ought to be addressed at the Board level and felt that the rule
would benefit from some reporting requirement.
Mr. Fine reminded the group of the unique role of the Board as the only body that
reviews the entire range of cases, and the only point in the process that includes
the community at large. Though expressing little desire to tamper with matters
on which ODC and a respondent are in agreement, Mr. Fine endorsed the idea
that the Board would see reports of all cases and have the right of sua sponte
review.
Mr. Wiggins observed that the Board already reviews everything and can
recommend sua sponte review at every level of discipline. In his experience, sua
sponte review rarely happens. He reminded the group that this proposal was
meant to ameliorate the expense involved in automatic review.
Ms. Boyce noted that the disciplinary process is adversarial and the community
conscience factor is always a part of the adversarial process. In other parts of
our justice system, individual judges make decisions that are not reviewed. Ms.
Boyce shared Mr. Danielson’s concern for cherry-picking of cases and issues by
the Board under a system of sua sponte review. Mr. Beitel noted that
proportionality would not be affected because hearing officer decisions have no
precedential; only Supreme Court decisions come into proportionality review. Mr.
Danielson shared his concern that a hearing officer decision that is affirmed by
the court without appeal becomes a precedent.
The Chair articulated the consensus that the group does not favor automatic
review. The Chair also shared the BOG’s discussion of the issue. He polled the
group on the issue of a system of sua sponte rather than automatic Board review
of suspension and disbarment recommendations. He acknowledged that the
result, 7 in favor and 5 opposed, demonstrated the controversial nature of the
issue. The Chair then directed Subcommittee C to develop and submit draft
language to the task force as a whole reflecting the BOG’s recommendation for a
system of sua sponte Board review of suspension and disbarment
recommendations.
Mr. Wiggins moved on to the BOG recommendation that the right of appeal in
suspension and disbarment recommendations be extended to ODC. The ABA
recommendation was to eliminate any right of appeal and to make all review
discretionary.
The BOG Discipline Committee disagreed, and the BOG
eventually approved the Discipline Committee’s recommendation to add a right of
appeal for ODC to the rule. Mr. Wiggins reported that Subcommittee C favored
the recommendation but not unanimously.
The Chair opened the floor for
comment.
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ELC Drafting Task Force Minutes – DRAFT
September 10, 2009
Mr. Sheldon shared his dissenting opinion that allowing ODC the right of appeal
would burden respondents who chose not to exercise their right of appeal without
any benefit to the public, because the Court reviews all suspension and
disbarment recommendations anyway. Mr. Fine agreed; he did not see the
asymmetry as a problem. Mr. Beitel said that ODC sees the asymmetry as an
issue of public perception of fairness. The current asymmetrical system is
perceived by the public as a justice system by lawyers for lawyers and
represents a serious credibility gap between the profession’s view and the
public’s view of the regulation of lawyers. ODC supports a symmetrical system
of review, either discretionary or by right of both parties.
The Chair polled the group on confirming a right of appeal in ODC: 6 were in
favor; 4 were opposed. The Chair shared the BOG’s strong position that the right
of appeal should be equal in respondents and ODC and directed Subcommittee
C to develop and submit draft language to the task force as a whole.
Mr. Wiggins moved on to the issue of who should administer reprimands. The
ABA suggested that the Chief Justice of the Supreme Court should sign
reprimands. Subcommittee C recommends that the WSBA President should
continue to sign reprimands. After some discussion, the group recognized that
one benefit to changing the current practice would be to move direct involvement
with the disciplinary system away from the BOG. The Chair polled the group on
recommending that the WSBA President continue to sign reprimands. 9 were in
favor; 2 opposed. The Chair will address the issue with incoming WSBA
President Sal Mungia.
Mr. Wiggins moved on to the BOG-approved proposal that ELC 14.2 be
amended to provide that a lawyer who has been disbarred, suspended, or placed
on disability status may not work in a law office or as a paralegal. The
subcommittee’s poll was 4 to 1 in favor, reflecting its concern for the danger that
working as a paralegal becomes a subterfuge for the continued practice of law.
The Chair called for comment.
Mr. Danielson supported the change, but suggested broader language. He
shared the concern in his area that certain disbarred lawyers were working for
law offices as investigators but still practicing law. Mr. Sheldon expressed the
minority view that the proposal is too harsh because it would deprive a
respondent in this situation of the ability to earn a living. Mr. Beitel pointed out
that the onus is already on other lawyers, under RPC 5.8(b)(2), to refrain from
“maintaining an office for the practice of law in a room or office used in whole or
in part” by a disbarred or suspended lawyer. The proposed amendment to ELC
14.2 would extend a corresponding responsibility to the suspended or disbarred
lawyer. Ms. Ureña opined that the rule assumes that all disbarred lawyers are
evil, when in fact they may have simply made a mistake.
The Chair noted a question that had not yet been put forward: whether there
should be any process by which a disbarred lawyer could apply for permission to
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ELC Drafting Task Force Minutes – DRAFT
September 10, 2009
work in a law office. The Chair then polled the group on the proposed addition to
ELC 14.2 that a suspended or disbarred lawyer may not work in a law office or as
a paralegal. 6 were in favor; 4 opposed. In light of the close vote, the Chair
directed Subcommittee C to continue work on draft language comporting with the
BOG’s recommendation, but noted that the subcommittee may submit a minority
report.
Subcommittee A:
Mr. Johnson reported that Subcommittee A had identified 34 proposals for that
were ready for discussion and approval by the task force as a whole. Discussion
of these items was postponed to the task force’s November consent calendar.
Subcommittee B:
Mr. Fine reported that Subcommittee B had identified 13 proposals with draft
language that are ready for the consent calendar. He will submit the text of the
proposals for the task force’s January consent calendar.
Next Meetings
Thursday, November 5, 2009, 10:00 a.m. to 12:00 noon
Consent Calendar: entries from Subcommittee A
Deadline for materials: Tuesday, October 27, 2010
Thursday, January 14, 2010, 10:00 a.m. to 12:00 noon
Consent Calendar: entries from Subcommittee B
Deadline for materials: Tuesday, January 5, 2010
Thursday, February 11, 2010, 10:00 a.m. to 12:00 noon
Consent Calendar: entries from Subcommittee C
Deadline for materials: Tuesday, February 2, 2010
Adjournment
The Chair adjourned the meeting at 11:25 a.m.
Minutes Respectfully Submitted by
Scott Busby
Disciplinary Counsel
ELC Task Force Reporter
- 551 -
Memo to: ELC Drafting Task Force
From: Chief Hearing Officer
Date: September 9, 2009
Re: Amendment to ELC 10.3(c)
It is proposed that ELC 10.3(c) be amended to grant the hearing officer to whom a case has been
assigned, or the chief hearing officer if no hearing officer has been assigned, authority to sever or
partially sever charges when the benefits of consolidated charges are outweighed by the burdens
of an unduly long proceeding.
Rationale:
1. It is commonplace for a disciplinary review committee to consolidate all charges
against a respondent lawyer into a single complaint, even if the charges arise out of unrelated
grievances and involve quite different acts of misconduct. In most cases, consolidation creates
no problems and instead is an economical way to resolve all the charges. At the very least, it
makes it unnecessary to open two or more separate case files. Depending on how closely related
the charges are, consolidation may also eliminate duplicative testimony.
However, consolidation occasionally creates problems for hearing officers that are severe
enough to outweigh any benefits. In one recent instance, charges arising out of numerous
grievances were consolidated, resulting in a 32-count complaint, over 50 witnesses and
thousands of pages of exhibits. The hearing will last at least three weeks, which would create a
very substantial burden on any hearing officer. The burden will include not only the time
consumed by the hearing itself, but also the time required to review the testimony and exhibits,
and to prepare findings and conclusions of law that address all 32 counts.
The example just provided is not an isolated instance. Other cases imposing an undue
burden on hearing officers have arisen in the past, and others are on the horizon.
2. There may be instances in which very long hearings are unavoidable. However, if a
hearing is expected to be unusually long because multiple charges involving different grievants
have been consolidated into a single complaint, it seems fair to ask whether any of the charges
are so different from the others that they reasonably could be severed, and made the subject of a
separate complaint. If so, the burden of an unduly long hearing might be avoided.
Unfortunately, the rules do not expressly authorize a hearing officer to consider whether
severance would be appropriate. There is no provision for severing charges, even if doing so
would avoid an undue burden on our hearing officers with little sacrifice of economy.
3. All of our hearing officers are volunteers who have other obligations. It is quite
difficult to find a hearing officer who will take a case when the hearing is expected to be
unusually long; e.g., three weeks or more. If our rules provided for the possibility of severing
- 552 -
charges when it is reasonable to do so, hearing officers would probably be more willing to accept
cases of this kind than they are now.
4. It might be argued that consolidation is always the best policy, and that severance of
charges should not be permitted under any circumstance. Severance, it might be said, could
prevent the hearing officer from seeing a pattern of misconduct or the presence of multiple
offenses, both of which are aggravating factors to be considered when deciding whether to depart
from the presumptive sanction.
It is possible a pattern of misconduct or multiple offenses would not be apparent to a
hearing officer who presides over the first proceeding after severance occurs. However, the
hearing officer who presides over the second proceeding to hear the remaining charges would be
entitled to use violations previously found when determining the presence of one or more
aggravating factors. The matter was decided by our Court in the case of In re Anschell, 149
Wn.2d 484, 69 P.3rd 844 (2003).
In Anschell, the respondent attorney was the subject of two successive disciplinary
proceedings. In the second proceeding, he argued that his prior offenses should be disregarded
because all the charges against him should have been considered at the same time. The court
stated: “We disagree. Whether as prior offenses, or as additional offenses considered with the
present charges, the additional violations constitute an aggravating factor either as prior
discipline or as additional current multiple offenses.”
In short, severance would not provide a “cover” for an attorney whose pattern of
misconduct or whose multiple offenses constitute an aggravating factor.
The proposed amendment is shown below.
************
ELC 10.3 COMMENCEMENT OF PROCEEDINGS
****
(c) Joinder. The body ordering a hearing on alleged misconduct or the hearing officer or panel
may in its discretion consolidate for hearing two or more charges against the same respondent, or
may join charges against two or more respondents in one formal complaint, provided that: the
hearing officer to whom the case is assigned, or the chief hearing officer, if no hearing officer
has been assigned, may on his or her own motion or on the motion of either party, sever any or
all of the charges so consolidated or joined, and order that they be the subject of separate formal
complaints upon a showing that the benefits of consolidation or joinder are outweighed by the
burdens of an unduly long proceeding.
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September 4, 2009
To: Geoff Gibbs, Chair
ELC Drafting Task Force
From: Seth Fine
Re: Proposal for Amendment to ELC 5.3, 5.5, and 7.2
Attached is a proposal for consideration by the Task Force. It was drafted by me
in conjunction with some attorneys who are involved in representing lawyers in
disciplinary matters.
This lawyer deals with a perceived area of unfairness in the existing rules. ODC
is authorized to demand information from a lawyer. There is no procedure for reviewing
such demands. If a lawyer receives a demand that he or she consider improper or
excessive, the lawyer has essentially two alternatives. The lawyer can provide the
demanded information notwithstanding that objection. Or the lawyer can refuse to
provide the information, thereby subjecting himself or herself to possible interim
suspension or additional disciplinary charges.
Under the proposed rule, the lawyer could seek review of the demand by a
hearing officer. ODC could respond to the lawyer’s objection. The hearing officer
would then rule on the objection. That ruling would be final. While the request for
review is pending, ODC could not seek interim suspension.
This proposal contains two safeguards against abuse. First, the objection would
have to be submitted prior to due date for the requested information. The resulting delay
would thus be limited to the time necessary for the hearing officer to rule on it. If the
objection is meritless, the hearing officer should be able to dispose of it quickly. The
decision of the hearing officer would not be subject to review. The delay resulting from
an objection should ordinarily be minimal.
Second, if an objection lacks a substantial basis, the hearing officer would be
authorized to award expenses and attorney fees. Filing meritless objections could thus
result in a substantial financial penalty. This would also reinforce the ability of ODC to
add charges or aggravating factors based on obstruction of the investigation. An accused
lawyer would start a hearing with one strike against him or her, if a hearing officer had
already ruled that the lawyer had raised an objection with no substantial basis.
The proposed procedure adds an important protection for attorneys under
investigation. The safeguards reduce the likelihood that this could be delay, and they
create substantial penalties for such abuse.
- 554 -
AMENDMENT TO ELC 5.3:
(a) – (f) [no change].
(g) Objections. A lawyer who receives an inquiry or request for information
pursuant to this rule may object as provided in rule 5.5(d).
AMENDMENT TO ELC 5.5
(a) – (c) [no change]
(d) Objections.
(1) A lawyer may object to a discovery demand made pursuant to this rule or an
inquiry or request for information made pursuant to RPC 5.3
(2) Any objection must be made prior to the due date for the requested
information or discovery. The objection must clearly and specifically set out the
challenged demand or request and the basis for the objection.
(3) The objection shall be submitted to the chief hearing officer, who may rule on
it or assign it to another hearing officer. The ruling by the hearing officer shall be final.
(4) The hearing officer shall determine whether the objection and disciplinary
counsel’s response have a substantial basis. If the position of either party lacks a
substantial basis, that party may be required to pay reasonable expenses and attorney fees
resulting from the objection.
(5) On request of either party, a decision to impose costs and attorney fees shall
be reviewed by the chair of the disciplinary board. If the chair determines that the
request for review lacks a substantial basis, the chair may require payment of reasonable
expenses and attorney fees resulting from the request for review. The decision of the
chair shall not be subject to further review.
AMENDMENT TO ELC 7.2:
(a)(1) – (a)(2) [no change]
(3) Failure To Cooperate with Investigation. When any lawyer fails without
good cause to comply with a request under rule 5.3(f) for information or documents, or
with a subpoena issued under rule 5.3(f), or fails to comply with disability proceedings as
specified in rule 8.2(d), disciplinary counsel may petition the Court for an order
suspending the lawyer pending compliance with the request or subpoena. A petition may
not be filed if the request or subpoena is the subject of a timely objection under rule
5.5(d) and the hearing officer has not yet ruled on that objection. If ((the)) a lawyer has
been suspended for failure to cooperate and thereafter complies with the request or
subpoena, the lawyer may petition the Court to terminate the suspension on terms the
Court deems appropriate.
(b) [no change]
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(360) 357-2043
CHAMBERS
FAX (360) 357-2104
E-MA L J-T.cHAMBERS@coU RTS.wA.GOV
JUSTICE
TEMFLE oF JusrtcE
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PosT OFFtcE Box 40929
oLYMPtA, WASHINGToN
94504-O929
September 2,2009
Justice Charles W. Johnson
Washington State Supreme Cour.t
Temple of Justice
P. O. Box 40929
Olympia, WA 98504
Reciprocal Discipline Rules
Dear Justice Johnson:
For some time I have been concerned about the way reciprocal discipline is
irnposed in Washington State. The concern is the built in lag period between the
original discipline in another state and the reciprocal discipline imposed by
Washington. A potential problem, discussed in more detail below, is
Washington's reliance on iawyers self-reporting discipline in other states. But
often lawyers don't realize that they need to report the discipline because they have
stopped practicing in WashinBton, stopped paying dues, or stopped satisfying
continuing legal education requirements, and they are surprised when reciprocal
discipline hits them one, two, or three years after the originai discipline. Part of
the problern is even if a lawyer promptly self-reports, there is a built in system of
notice, opportunify to object, and referral to this court, all of which is likely to take
six months even if the lawyer is begging for immediate and concunent discipline.
ELC 14.1 requires every lawyer suspended to notify all ciients. A lawyer
practicing law in Oregon who is suspended for 60 days in 2007 may find himself
having to send out notices to all of his clients in2009 that he has now been
55S
Justice Charles W. Johnson
Re: Reciprocal Discipline Rules
1
suspended in Washington. It may be this is not reciprocal discipline but additional
punishment.
Forfunately, the ABA has established a data bank, which, although
voluntary, all states now seem to be contributing to and now all state bar
associations are able to know almost immediately if discipline has been imposed in
any other state. To take advantage of this new technology and to streamline
Washington's reciprocal discipline process will require some rule changes. I had
an extern work with rne to come up with some potential rule changes for the
purpose of discussion only.
Some of the problems that can arise are illustrated by the case of In re
Disciplinary Proceeding Against Luke, Supreme Court No. 200,673'6. The
attomey in that case, Luke, was admitted to practice in Washington in 7997 and
suspended in 2003 for non-payment of annual licensing fees. Luke was also
reciprocally admitted to practice in the state of Idaho, but was placed on inactive
status in2002 because he could not show that he had completed a required CLE
seminar, Five years went by, during which Luke did not practice law at all. In
2007, he applied to change his status in Idaho to active. As part of Luke's
reactivation, he stipulated to a public reprimand for his attempt in2002 to show he
had completed a CLE which in fact he had not attended. The reprimand from
Idaho was issued in January 2008. The WSBA learned about the reprimand one
year Iater, after a routine check of the ABA's National Lawyer Regulatory Data
Bank (Data Bank). The WSBA notified the Supreme Court, and the court issued a
show cause order giving Luke 30 days to respond. See ELC 9.2(b), (c).
Luke's response highlights two potential problems with the curent
reciprocai discipline rules. First, he points out he had not practiced in Washington
since 20A2, and suspended from practice here since 2003; the thought never
crossed his mind that he would have to report his Idaho reprimand. Second, he
claims that the imposition of a public reprimand in Washington is not truly
reciprocal discipline, because he has national clients who monitor discipline
notices and who will not allow a lawyer to represent them for three years following
any public discipline. Since the discipline in Washington would issue over a year
after the Idaho leprimand, the period Lulce would be prevented from representing
certain of his clients would be extended by a year, amounting to more severe,
rather than identical, disciphne. See ELC 9.2(e)(1).
55?
Justice Charles W. Johnson
Re: Reciprocal Discipline Rules
Arguably, one difficulty is with the self-reporting requirement in ELC
9.2(a), which gives a lawyer 30 days to report being disciplined in another
jurisdiction. Lawyers don't always know the rules, especially if they have been
inactive in Washington for a long time, and an old suspension or other discipline
can come back to haunt them years later. In fact, some jurisdictions, like Oregon,
have no self-reporting requirement. See Oregon State Bar Rule of Procedure (BR)
3.5. Lawyers practicing in such jurisdictions, who have not practiced in
Washington for sorne time, are even less likeiy to be awarethat a foreign sanction
must be reported in Washington. Moreover, discipline can be independently
imposed for failure to notify the WSBA within 30 days. SeeELC 1.5. The
potential imposition of such discipline is troubling in cases where, like Luke,
attorneys have not practiced in Washington in years and simply don't know of the
requirement.
Another arguable problem, tied to the first, is delay. When an old discipline
does come back to haunt, the delay in time between the imposition of the original
discipline and the reciprocal discipline can create serious hardship for attorneys.
Even a reciprocal reprimand tlat comes at a much later date than the original
reprirnand has the potential to drive away clients, but an old suspension is even
worse. An attorney suspended for three months in a foreign jurisdiction and then
reciprocally suspended a year or two later in Washington must notify clients under
HLC I4.1, and as the rules are now, such a suspension would run at a much later
time than the original suspension. An attorney's practice could suffer severely as a
result; clients would also be affected, having suddenly to find a new lawyer to
handle their affairs. In sum, a iawyer subject to two different suspensions at two
different times for the same infraction can hardly be said to have been identically
disciplined. See ELC 9.2(e)(1).
The ABA Data Bank is one promising avenue for addressing these issues.
The extern spoke with representatives of both the ABA Center for Frofessional
Responsibility, where the Data Bank is located, and the WSBA. According to the
ABA, every state now reports its disciplinary orders to the ABA for publication in
the Data Bank. Sq do many, though not all, federal jurisdictions and agencies. The
time between issuance of the discipline and posting can yar\, because submission
to the Data Bank is voluntary, and different jurisdictions use different procedures,
but posting on the Data Bank often occurs within a few weeks or a month. For
example,'the ABA representative spoken with on July 1A,2009, was checking and
posting notices fi'om the end of June. Electronic submissions to the ABA are even
558
Justice Charles W. Johnson
Re: Reciprocal Discipline Rules
faster (Washington uses this method), and are certain to becorne the standard
before long. The Data Bank went online about ayear ago, and,according to the
WSRA representative, the WSBA has free and full access to all its information,
Currently the WSBA checks the Data Bank disciplinary notices against all lawyers
admitted to practice in Washington every three months. The check is run with a
software program and takes little time to complete. Hits are scored on a scale of
one to ten, based on how likeiy the match is given the available information. The
DataBank is constantly becoming faster, more extensive, and easier to use; this
trend will doubtless continue.
Since Washington already uses the Data Bank, there is no reason not to
reflect this new ease of access to information in the rules governing reciprocal
discipline. As a procedural matter, it should be easy to increase the number of
routine checks of the Data Bank performed by the WSBA. A monthly or even
weekly check should present no difficulfy if it can be done simply by running a
program. Moreover, a substantive change in the rules so that the date of
publication on the Data Bank is considered the date of constructive notice to the
WSBA would help prevent lawyers from inadvertently missing the 30 day selfreporting window, Self-reporting could still be encouraged, however, by inserting
a provision that a lawyer who self-reports prior to the date of actual notice of
foreign discipline to the WSBA from any other source would have the option of
expediting the disciplinary process by choosing not to contest the discipline.
Instead of waiting for the Supreme Court to issue a show cause order and then
waiting another 30 days before the Court imposes identical discipline, a lawyer
who self-reports could just get the process over with. There is a necess 4ry caveat
to such a provision: if the court or the WSBA seeks a more severe sanction than
that imposed in the other jurisdiction, the lawyer would have to be notified and
given 30 days to respond before such discipline could be imposed. In conjunction
with constructive notice from the Data Bank, these changes could eliminate many
of the difficulties lawyers face from both the self'reporting requirernent and the
delay in imposition of sanctions.
Under ELC 9,2(eX1), the Supreme Court must impose "the identical
discipline" to that imposed in the other jurisdiction. While the delay in time
between imposition of the original sanction and imposition of a reciprocal sanction
would be partially cured in many cases by the measures outlined above, lhe
problem remains that anon-concurent sanction "is not identical punishment, but
additional punishment." C, Stephen Lawrence,In re Goldburg: Standards for
4'
559
Justice Charles W. Johnson
Re: Reciprocal Discipline Rules
Imposing Concurrent Reciprocal Bar Discipline, 33 Ceru. U. L. Rev. 1 165, 1 181
(1984) (Lawrence). This is especially true in the case of suspensions, where nonconcurent disciplineoowould force a lawyer once again to call clients with
confidence-shattering news, to reschedule cases, and to affange for coverage of
ciients' needs by other lawyers." Id. at 1 180-81 . Even where the sanction is an
admonishment or reprimand, the repercussions can be serious. The lawyer might
not be required to call clients, but can lose them nonetheless if a new sanction is
imposed, In the latter case, the solution is simple. A reprimand or admonishment
can be applied retroactively easily enough;just back-date it to the date of the
original sanction. Suspension presents more of a conundrum, but it too has been
applied retroactively in the context of reciprocal discipline. In re Goldberg, a
District of Columbia Court of Appeals case, held that reciprocal suspension must
be retroactiveiy applied because two non-concurrent suspensions "would tend to
increase the punishment far beyond that intended by the original state and far
beyond the degree of discipline warranted." In re Goldberg,460 A.2d982,985
(1983). The court recognized that concurrent suspension would be impossible
where the attorney "engage[d] in the practice of law in the District of Colombia
while suspended elsewhere," but held that if the atlorney voluntarily refrained from
practicing in D.C. while suspended in the original jurisdiction, then reciprocal
suspension could be applied retroactively.t Id. Thus imposition of retroactive
reciprocal discipline can work even in cases of suspension, as long as the attomey
did not practice in Washington for the duration of the original suspension. Even if
the attomey practiced in Washington at some point during the original foreign
suspension, retroactive credit could be given for whatever time the attorney did
refrain from practice during the original suspension. Retroactive concurrent
discipline is as close as we can get to truly identical discipline, and it avoids
placing undue burdens on attorneys while still "maintain[ing] public confidence in
the legal system by virtue of the court's imposition of punishment for
wrongdoing." Lawrence, supra, at 1778.
I
The court also held that an attorney seeking retroactive discipline must promptly report the
original suspension to the bar. Goldberg,46A A.zd at 985. This is not a logical requiretnent,
like refraining from practice in the jurisdiction in which one is seeking retroactive reciprocal
suspension, but could be another way to encourage self-reporting.
5
580
Justice Charles W. Johnson
Re: Reciprocal Discipline Rules
The attached Washington Reciprocal Discipline Ruies with suggested
redline changes are offered not as proposed rule changes but intended to stimulate
discussion that will lead to proposed rule changes.
Tom Chambers
TJC:smg
Enclosures:
- ELC 9.2 redline
- In re the Matter of Goldberg,460 A,zd982
Catholic University Law Review article, In re Goldberg
-
6
56i.
EIrC
9.2
RECIPROCAL DISCIPLINE A}iD
TO
DISABILITY INACTTW STATUS;
SEIJF-REPORT
(a) Etltsf+e-9elF-Reporting Diecipline or Transfer to Disability
fnactive Status. I{ithin 30 days of being disciplined or
transferred to disability inactive status in another
jurisdiction, a lawyer admittsed to practice in this state
must inform disciplinary counsel of the diselpllne or
transfer. The da!,e gf publication of the_ discipLinslor t{ansfgr
on the American Bar Associat,ion NaLiongl Lawyer Regulatory Data
ive notice Eo disciPli44ry
counsel. If !! Lawyer adni-tted to pracEice in this state selfreports a discipLin_e-or transfer_in another jurisdiction prior
to actual notice to disciplinary counsel from any souree, the
lawyer may notify disciplinary coug.seL that, t,he lawyer does not
wish to contest the imposit,ion of identical discipline or
_)
(b) obtaining Order. Upon not,ification from any source that,
a l-awyer admitted to practice in.this state was disciplined
or transferred to disability inactive status in another
jurisdiction, diseiplinary counseL must obtain a certifj-ed
copy of the order and file it with the Supreme Court.
(c) Supreme eourt Action. Upon receipt of a certified copy
of an order demonst,rating that a J.awyer admitted to practice
in this state has been diseiplined or transferred to
disability inactive status in another jurisdiction, the
Supreme Court orders the respondent lawyer to show cause
within 30 days of service why it shouLd nots impose the
j.dentical discipline or disability inact,ive statusa_gglggg_jib
lawver notifj.ed disciplinary'counseL under sect,ion (a) that the
lawye-r doee noE. wi-sh lo contest, t.he imposj-tion of identical
dj-scipline or transfer. The
Association must personally serve this order, and a copy of
the order frorn the other jurisdiction, on the respondenL
under rule 4.L(b) (3),
(d) Deferral. If the other jurisdiction has stayed the
discipline or transfer, aDy reciprocal- discipllne or
transfer in this state is deferred until Ehe stay expires,
(e) Discipline or Transfer To Be
Imposed.
(1) Thlrty days after service of the order under
secLion (c), or upon receipt of the certified copy of t,he
discipline or transfer order from the other jurisdiction under
section (c) if the lawyer notified disciplinary counsel under
section (a) that tbe lawyer does not wish to contest the
imposit.ion of identical discipline or transfer, the Supreme
Court imposes the identical
discipline or disabiliEy inactive stabus unless
disciplinary counsel or the J-awyer demonetrates, or t,he
Court finds, that it clearly appears on the face of the
record on whiclr the discipline or di.sability transfer
562
is based, that:
(A) the procedure Eo lacked notice or opportunity to
heard that it denied due process;
be
(B) the proof of misconduct or disabiJ.ity was so infirm
that the court is clearly convinced that it cannot.,
consi-stent rrit,h its duty, accepts the finding of
misconduct or d!.sability;
(C) the imposition of the same discipline would reEult
in grave injust,ice;
(D) the estabLished misconduct warrants substantially
differenL discipline in this state;
(E) Ehe reason for t,he original transfer to disability
inactive status no longer exists; or
(F) appropriate diecipline hae already been imposed in
this jurisdiction for the mieconduct.
(2) If the Court determines that any of the facEors in
subsectj-on (1) exist, it enters an appropriate order.
The burden is on the party seeking different discipline
in thj-s jurisdiction t'o demonetrate that imposing the
same discj-pline is not appropriate.
(3) Different diseipline may not be imposed unless the lawyer to
be disciplined has been nolifj-ed by personal service under rule
4.1(b) (3) and given 30 days to show cause why different
discipline shou1d not be imposed.
(4) IdenEicaL discipline is limited to:
(A)
disbarment, effect_iJe on the date established
ELC
(B)
13
bv
.2;
effective on the dat,e established by
lawyer has voluntarily
refrained from practice j.n this state for any period
of time during the suspension from E,he other
jurisdiction. If the suspended lawyer has
voluntarily refrained from practice in this state for
any period of time during the suspension from tbe
other jurisdiction, then the reciprocal- snspension is
made ::etroactive to run concurrently with the
suspension faom the o-ther jurisdictign for such
period of Lime, and the remainder of the time of.the
reg_iprocal suspension, if any, shall run from the
suspension,
ELC 13.2 unLess t.he suspended
date established by ELC 13.2.
(C)
;
reprimand, effective rstroactlvely on lhe date of
the reprimand frorn the other jurisdiction; or
l
(D)
adFonishment, effective retroactivelv on the date
of the admonishment frorn the ot,her jnrisdiction.
563
I
(f ) Concl-usive Effect. Except as this ruJ.e otherwise
provi.des, a final adjudication i-n another jurisdictlon that
a lawyer has been guilty of misconduct or should be
transferred t,o disabiLity inactive etatus conclusively
establiehes the misconduct or the disability for purposes of
a disciplinary or disability proceeding in this state.
.t
564
PageZ
460
A.Zd982
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460 A.zd982
(Cite as: 460 A.2d 982)
P
45k59,18
District of Columbia Court of Appeals.
ln the Matter of Ronald S. GOLDBERG, Respondent.
No. M-l17-82
Argued Dec,7, 1982,
Decided March 30, 1983.
In attomey disciplinary proceeding, Court of Ap(l) bar rule providing that order im-
k. Reciprocal Discipline; Ef-
fect of Other Discipline. Most Cited Cases
(Formerly 45k60)
Bar rule providing that orders imposing disbarment
or suspension shall be effective 30 days after entry
does not apply to reciprocal suspensions, and thus
Court of Appeals has discretion to order that reciprocal suspension be made retroactive to run concurrently with suspension in another jurisdiction on
which it is based. Bar Rule I l, S$ 18, l9(3).
peals held that:
posing disbarment or suspension shall be effective
30 days after entry does not apply to reciprocal suspensions, and thus Court of Appeals has discretion
to order reciprocal suspension be made to run concunently with suspension in another jurisdiction on
which it is based; Q) bar rule governing reciprocal
discipline required Court of Appeals to impose
identical discipline upon attorney that was ordered
in Maryland; (3) where attorney represented to
couft that he voluntarily refrained from practicing
in District of Columbia during period of his Maryland suspension, but there was no evidence on such
point before Board on Professional Responsibility,
case would be remanded to Board.for factual findings on such question; and (4) on remand, Board
would be allowed to consider any other evidence
bearing on question of whether suspension should
be concunent or consecutive, within guidelines set
)
F59.18
l2l Attorney and Client 45
45 Attorney and Client
451 The Office of Attorney
451(C) Discipline
45k59.1 Punishment; Disposition
45k59,18
k. Reciprocal Discipline; Ef-
fect of Other Discipline. Most Cited Cases
(Formerly 45k60)
Bar rule governing reciprocal discipline required
Court of Appeals to impose discipline upon attorney identical to that ordered in Maryland. Bar Rule
r
r, $$ 18, 18(5).
[3] Courts 106
q;"85(2)
106 Courts
10611 Establishment Organization, and Proced-
forth by Court of Appeals.
ure
Record remanded.
Business
I06II(F) Rules of Court and Conduct of
106k85 Operation and Effect of Rules
Kelly, J., concurred in part, dissented in part
106k85(2) k, Construction and Applic-
and
ation of Rules in General. Most Cited Cases
filed opinion.
General principles
West Headnotes
I
I Attorney and Client 45 C;?59.18
45 Attomey and Client
451 The Office of Attorney
45I(C) Discipline
45k59.
I
of
statutory construction
are
commonly used in interpreting court rules.
[4] Attorney and Client 45
€F60
45 Aftomey and Client
451The Office of Attomey
451(C) Discipline
45k60
Punishment; Disposition
k.
Operation and Effect. Most
Cited Cases
,)
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A.2d982
A.2d982
(Cite as: 460 A.Zd 982-)
Page2
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460
460
Under bar rule governing leciprocal
discipline,
Court of Appeals does not consider imposing reciprocal discipline upon attorney until another jurisdiction has issued disciplinary order; such is not to say
that reciprocal suspension must always be concurrent, but that concurrency will be the norm. Bar
Rule ll, $ l8(l),
of7
to be remanded, since Court of Appeals
could not base its decisions on factual representations of counsel which were unsuppofied by record
case had
evidence. Bar Rule I l, $
l8(l).
l7l Attorney and Client
45
Qa57
45 Attorney and Client
[5[ Attorney and Client 45
Ca60
451 The Office of Attomey
451(C) Discipline
45k47 Proceedings
45k57 k. Review, Most Cited Cases
45 Attorney and Client
451The Ofiice of Attomey
451(C) Discipline
45k60
k,
Operation and Effect, Most
Cited Cases
Under bar rule goveming reciprocal discipline,
whether particular suspension should be concurrent
will depend to considerable extent on actions of attomey involved; if attomey promptly notifies bar
counsel of disciplinary action in another jurisdiction, and voluntarily refrains from practicing law in
Disfict of Columbia during period of suspension in
original jurisdiction, then there would be no reason
to make District of Columbia suspension wholly or
partially consecutive to that imposed elsewhere, but
if attorney unreasonably delays in notif,ing bar
counsel, or engages in practice of law in District of
Columbia while suspended elsewhere, then more
severe sanction might be justified; these and other
pertinent circumstances should be taken into account by Board on Professional Responsibility in
any reciprocal suspension proceeding. Bar Rule ll,
$ l8(l), (5Xc, d).
suspension should be conculrent or consecutive
suspension, within guidelines set
forth by Court of Appeals. Bar Rule I 1, $ l8(l).
*983 Edwin Yourman, Deputy Bar Counsel, Wash-
with Maryland
ington, D.C,, with whom Fred Grabowsky, Bar
Counsel, Washiagton, D.C., was on the brief, for
the Board on Professional Responsibility,
Neil Edward Axel, Rockville, Md., for respondent.
Before NEWMAN, Chief Judge, and KELLY and
TERRY, Associate Judges.
Opinion PER CURIAM.
PER CURIAM:
f6l Attorney and Client 45
€F57
45 Attorney and Client
45I The Office of Attomey
45k57 k. Review. Most Cit€d Cases
Where attomey represented to Court of Appeals
that he voluntarily refrained from practicing in Dis-
trict of Colurnbia during period of his Maryland
suspension, but there was no evidence on such
point before Board on Professional Responsibility,
@ 2009
[] We are called upon in this case to resolve an apparent ambiguity between two provisions of our
Rules Governing the Bar. Rule
in part:
451(C) Discipline
45k47 Proceedings
I,
On remand of attorney discipline case, Board on
Professional Responsibility would be allowed to
consider any evidenee bearing on question whether
Xl, $ l9(3) provides
Except as provided in $$ 15 and 18 of this Rule,
orders imposing disbarment or suspension shall
be effective 30 days after entry,
Rule
Xl, $
18 deals generally
with the subject of re'
ciprocal discipline, but it says nothing aboul an effective date for reciprocal disciplinary sanctions.
Applying accepted principles of statutory consffuc-
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464 4.2d982
460 A.zd982
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tion, we hold that section l9(3) does not apply to
rcciprocal suspensions, and that this court therefore
has discretion to order that a reciprocal suspension
be made to run concurrently with the suspension in
another jurisdiction on which it is based.
The Maryland Court of Appeals reversed the trial
courtrs conclusion that respondent had not violated
the Maryland Code of Professional Responsibilify.
The court held that respondent had violated DR
6-101(AX3) by failing to supervise his employees
adequately and suspended him tom the practice of
law in Maryland for thirty days, beginning March
25, 1982, *984Atlorney
I
Goldberg, 292
Md
Grievqnce Comm'n
v.
650, 441 A,2d 338 (1982).
Maryland Bar Counsel charged respondent with
sixteen violations of Disciplinary
Rules
6-101(AX3) (neglect of an entrusted legal matter),
7-l0l(AXl)-(3) (failure to represent a client zealously), and 9-102(BX3)-(4) (failure to maintain
identiry of funds and properfy of a client).rNt The
Maryland trial court concluded that respondent had
not knowingly violated the Code of Professional
Responsibility but that the improper activities
which had occuned in his law office had been athibutable to his former secretary, Sandra Of.
terdinger. The court further found that respondent
had not been aware of any
of Mrs.
Ofterdinger's
activities until after she left his employ.
Following a telephone conversation on'March 25,
1982, with Deputy Bar Counsel, respondent's attorney wrote to the Executive Attorney of the Board
on Professional Responsibility on March 29, In his
letter the attorney set forth some of the background
deails of the Maryland proceeding and requested
that they be brought to the attention of the Board,
"with the hope that they will consider these factors
as well as the other information which they have in
their possessis11." FN2 On April 12 the Board recommended that respondent be suspended from the
practice of law in the District of Columbia for thi*y
days. Respondent timely filed exceptions to the
Board's report and recommendation.
FNl, DR 9-102 has been recodified in
the
FN2. The Board had already received, on
March 11, a copy of the Maryland Court of
District of Columbia as DR 9-103.
Mrs. Ofterdinger's responsibilities had included the
preparation of pleadings from respondent's dicta'
tion, the calendaring and filing of cases, the maintenance of financial records, and the disbursement
of funds fi'om both the office bank account and the
clients' trust account. The court found that when
Mrs. Ofterdinger had fallen behind in her work, she
took steps to cover her backlog such as removing
files, not calendering matters that required attention, and intercepting telephone calls, letters, and
messages to respondent which refened to the work
that had not been done. The court also noted that
Mrs. Ofterdinger had apparently drawn unauthorized checks and had deposited some checks from
clients in the wrong bank accounts. As a result, respondent failed to file several suits that he had been
retained to file, and also failed to remedy the overdrawn status of his clients' accounts
months.
for
several
Appeals decision, and on March 17 this
court had requested that the Board recommend whether reciprocal discipline should
be imposed on respondent in the District of
Columbia.
II
[2] The imposition of reciprocal discipline is govby Rule XI, $ 18 of this cout't's Rules Governing the Bar, Subsection 5 ofsection 18 provides
erned
in pertinent part:
[T]his court shall impose the identical discipline
unless Bar Counsel or the attorney demonstrates,
or the Court finds upon the face of the record
upon which the discipline is predicated, that
clearly:
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.
(a) The procedure elsewhel'e was so lacking in
notice or opportunity to be heard as to constitute a deprivation ofdue process; or
(b) There was such infirmity of proof establishing
the misconduct as to give rise to the clear con-
sel, however, argues that the exception in section
l9(3) refers only to certain language in section 18
which provides for an automatic *985 stay of a disciplinary order in the District of Columbia when
there has been a stay in the original jurisdiction. We
cannot agree with such a limited reading of the rule.
viction that the Court could not, consistent with
its duty, accept as final the conclusion on that
FN3. We have found one other case in
which a reciprocal suspension was ordered
to run concunently with a suspension in
subject; or
another jurisdiction.
3-49-77 (D.C. Sept.
(c) The imposition of the same discipline by the
(d) The misconduct
In re
Leventhal, No,
22, 1977). That case,
however, did not arise under the present
rule and did not require us to consider the
effect of the 1978 amendment to section
Court would result in grave injustice; or
established warrants substan-
tially different discipline in this jurisdiction; or
re(3).
(e) The misconduct elsewhere does not constitute
with attorneys wlro
of felonies and certain other "serious crimes," It has no apFN4, Section 15 deals
have been found guilty
misconduct in the District of Columbia.
If
this coult determines that any of those
ele-
ments exists, the Court shall enter such order as it
deems appropriate, including refenal of the mat-
ter to the Board for its further consideration
and
recommendation. [Emphasis added.]
]
Neither respondent nor Bar Counsel contends that
any ofthe exceptions listed in section l8(5) apply
here, and we do not find any of these elements upon
the face of the record of the Maryland proceedings.
Thus section l8(5) requires us to impose the
"identical" discipline upon respondent that was
ordered in Maryland, Le., a thirfy-day suspension.
II
The principal issue in this case, a matter of first impression in the Distict of Columbia,FNs is whether
respondent's suspension may be made retroactive so
as to run concurrently with that imposed by the
Maryland court. Rule XI, $ l9(3) was amended in
1978 so as to require that disbarment and suspension orders take effect thirfy days after entry
"[e]xcept as provided in $$ 15 and 18 of this
Rule.,.." FN'r On its face this exception seems to
suggest that section I 9(3) is not applicable at all to
plication to this case.
t3lt4li5l This court
has repeatedly
held that it has
a
"dufy to make 'every effort' to reconcile allegedly
conflicting statutes and to give effect to the language and intent of both, as long as doing so does
not deprive one of the statutes of its essential meanmg." District of Columbia v. Smith, 329 A.2d 128,
130 (D.C.1974) (citation omitted); accord, e.g',
United States v. Hamilton, 390 A,zd 449, 452
(D.C.1978); see ln re T.L.J., 413 A.2d 154, 158
(D,C,1980); Wilderness Society v. Morton, 156
U.S,App.D.C. 121, 76A, 479 F.zd 842, 887,cert.
denied, 411 U.S. 917,93 S.Ct. 1550, 36 L.Ed'Zd
309 (1973);2A SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION S 46.06 (4th ed.
1973).nNs Although there is not, strictly speaking,
a conflict between sections 18 and l9(3) of Rule
XI, we would be creating one if we accepted Bar
Counsel's argument, for we would be making
it im-
to
impose tlre "identical" discipline that
section l8(5) requires. We do not consider imposing reciprocal discipline upon an attorney until after
another jurisdiction has issued a disciplinary order,
SeeRule XI, $ l8(l) of our Rules Governing the
Bar, Thus, if our reciprocal disciplinary order be-
possible
reciprocal suspensions under section 18. Bar Coun-
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came effective thirfy days after entry, we could
never order that it run during the same time period
as in the state where the misconduct occun'ed unless the court in that jurisdiction stayed its own order, lndeed, in many cases, especially those involving short suspensions, the suspension periods
in the two jurisdictions would never even intersect.
Such a result would tend to increase the punishment
fal beyond that intended by the original state and
far beyond the de$ee of discipline warranted,
FN5. Although we are here dealing with a
rule of coufi rather than a statute, general
principles of statutory construction are
"commonly used" in interpleting court
rules, ,See 3 SUTHERLAND, STATUTES
AND STATUTORY CONSTRUCTTON $
67,10 (4th ed. 1974); cf, Tenants Council
of Tiber Island-Carrollsburg SEtare v.
Dislricl of Coluntbia Rental Accomffioda-
tions Conm'n, 426 A.zd 868,
874
(D.C.l98l) (constluing administrative regulations).
This is not to say, of course, that reciprocal suspensions must always be concurrent. There may be
situations, for example, in which a concurrent suspension "would result in grave injustice," Rule XI,
g l8(5)(c), or the circumstances ofthe case call for
"substantially different discipline in this jurisdiction,"Rule XI, $ 18(5)(d). Nevertheless, we anticipate that concurrency will be the norm. Whether a
particular suspension should be concurrent will depend to a considerable extent on the actions of the
attorney involved. If the attomey "promptly" notifies Bar Counsel of any professional disciplinary
action in another jurisdiction, as he or she is required to do under Rule XI, $ 18(l), and if the attomey voluntarily refrains from practicing law in
the District of Columbia during the period of suspension in the original jurisdiction, then there will
probably be no reason to aggravate the discipline
by making the Dishict of Columbia suspension
wholly or partially consecutive to that
elsewhere, On the otlrer hand,
@ 2009
if
imposed
the attorney un-
reasonably delays in notifting Bar Counsel that he
or she has been disciplined in another state, or if the
attorney engages in the practice of law in the District of Columbia while suspendod elsewhere, then
a more severe sanction may be justified. These and
other pertinent circumstances should be taken into
account by the Board on hofessional Responsibility in making its recommendation to this court in
any reciprocal suspension proceeding.
IV
[6][7] There remains the question of the sanction to
be imposed in this particular case. Respondent met
his obligation under Rule XI, $ l8(l), of notifring
Bar Counsel "promptly" of the Maryland proceed-
ings. He has also represented to this couft in his
brief that he voluntarily refrained from practicing in
the District of Columbia during the period of his
Maryland suspension; *986 however, there was no
evidence on this point before the Board on Professional Responsibility, Since we cannot base our decision on factual representations of counsel which
are unsuppofted by record ovidence, Cobh v. Stanclard Drug Co,, 453 A.2d I10, I I l-l 12 (D.C'1982),
we remand the record to the Board for factrral findings on this question. We retain jurisdiction of the
case. On remand the Board may also consider any
other evidence bearing on the question of whether
the suspension should be concurrent or consecutive,
keeping in mind the guidelines we have set forth in
this opinion, When the remand proceedings have
been concluded, ttre record shall be returned to this
court for the entry of a final order.
Record remanded.
KELLY, Associate Judge, concun'ing in part
and
dissenting in part:
I concur
in all but Part IV of the majority opinion'
read the record, there is no dispute that respondent did not practice law.in ihe District of
Columbia during the period of his suspension' To
have done so, he says, citing Md.Ann.Code Art, 10,
$ l (1957) and 61 Op.Atty.Gen. 43 (1976), would
have been a violation of the Maryland order. Bar
As
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counsel argues only that since respondent's name
remained on the active roll of our Bar during the
suspension, he was "eligible for all privileges and
subject to all liabiljties attendant to that status," and
that a "voluntary withdrawal from practice cannol
be equated with the imposition of professional dis'
cipline," These arguments are unpersuasive. I see
no reason to remand, It is appropriate under these
circumstances to suspend respondent from the prac-
tice of law in the District of Columbia for a thirtyday period nunc pro tunc to run concurrently with
his Maryland suspension.rNl
FNI. I note in passing that as a result of
show cause orders, the United States District Courl for the District of Maryland declined to impose additional discipline, and
the United States Coult of Appeals for the
Fourth Circuit ordered a concurrent thirtyday suspension nunc pro tunc.
Matter of Goldberg
46Q
4,2d982
END OFDOCUMENT
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33 CATHULR I 165
33 Cath, U. L, Rev, I 165
Catholic University Law Review
Summer, 1984
Distriqt of Columbia Survey
*l165 IN RI GOLDBERG: STANDARDS FOR IMPOSING CONCURRENT RECIPROCAL BAR DISCIPLINE
C, Stephen Lawrence
Copyright 1984 by the Catholic University of America; C, Stephen , Lawrence
When an attomey is sanctioned for violating a bar's disciplinary rules, other jurisdictions where that afiomey
is admitted must conduct separate adjudicationi in order to invoke disciplinary sanctions for the same violation.
[FNl] Receiving jurisdictions generally feat the initial finding of wrongdoing as conclusive evidence that the
violation occuned. [FN2] Where the receiving court finds that a sanction in its jurisdiction is applopriate, it
then must independently decide the proper sanction. [FN3] The rule in many jurisdictions is that the second
sanction must be identical to the first unless extenuating circumstances render identical discipline clearly inap'
propriate in the receiving jurisdiction, [FN4] This view is endorsed by both the American *1166 Bar Association
(ABA) [FN5] and the District of Columbia, [FN6]
The Rules of the District of Columbia Court of Appeals Goveming the Bar of the District of Columbia (D,C.
Bar Rules) require a member of the District's bar who has been the subject of professional discipline elsewhere
to disclose this information to the District's Bar Counsel. [FN7] Under the D.C, Bar Rules, final adjudication of
wrongdoing in another jurisdiction conclusively establishes the misconduct in the District of Columbia. [FN8]
The exceptions to this rule encompass situations where due process was lacking in the original jurisdiction
[FN9] or where there was a clear infirmity of proof presented in the original proceeding. [.FNl0] Once the mis'
conduct is established, the D.C, Bar Rules require the imposition of discipline identical to that imposed by the
foreign jurisdiction [FN11] unless imposition of identical discipline would result in a grave injustice [FNl2] or
the District Rules wanant substantially different disciplinary measures. [FN13] Additionally, the D.C. Bar Rules
would except from penalty an activity sanctioned elsewhere which did not constitute misconduct in the District
of Columbia, IFNl4]
Application of the same sanction in the reciprocal discipline situation *1167 would appear to be a simple
matter in theory, but it is not always so in practice, at revealed by the recent case /r re Goldberg. [FN15] ln
Goldberg, the District of Columbia Court of Appeals, faced for the first time with interpreting an ambiguity
between two provisions of the D.C, Bar Rules, [FNl6] found that determining which sanction to impose in reciprocal discipline cases involves diffrcult decisions regarding the purpose of attomey discipline and the meaning of the term'identisal discipline.' [FNl7] In resolving the ambiguity, [he coutt delineated an area of judicial
discretion by holding thal, under the D.C. Bar Rules, it possessed the power to decide whether a temporary suspension could be imposed as reciprocal discipline in the Dishict of Columbia concurrently with the suspension
in the original adjudicating jurisdiction, [FNl8] The Goldberg court decided that, absent additional aggravating
factors, [FNlg] where a member of the District of Columbia Bar is temporarily suspended from practice in an-
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other jurisdiction and identical discipline is indicated in the District of Columbia, the District of Columbia Coutt
of Appeals will impose the identical suspension retroactively, to run concunently with the suspension in the originalforum, [FN20]
This Note will discuss the manner in which the District of Columbia Coun of Appeals handled the question
reciprocal suspensions under the D,C. Bar Rules. It will describe how .the Goldberg couft defined
identical suspension and proposed a general framework for determining when courts should invoke identical
suspension. This Note will conclude with the suggestion that application of traditionally applied aggravating and
mitigating factors to reciprocal discipline can be rEad into the language of Goldberg to guide the imposition of
identical reciprocal suspensions.
of timing
I. RECIPROCAL SUSPENS]ONS: SHOULD THEY RUN CONCURRENTLY OR INDEPENDENTLY?
A. Did the D.C. Bar Rules Change Pasl Practice?
The question of the timing of reciprocal suspensions from legal practice has rarely been addressed by state
courts, Where a state suspends an attomey for violating its disciplinary code and a second state finds the impos'
ition*l168 ofthe same suspension appropriate, repoftad decisions have favored concunent suspensions. [FN2l]
The District of Columbia appears to have followed this practice before the D.C. Bar Rules were amended to
their present form. [FN22] The D.C. Bar Rules now require that suspension orders of the District of Columbia
Court of Appeals shall become effective thiry days after enb1t, with the exception of tlose orders imposing reciprocal discipline. tFN23l Until Goldberg, the District of Columbia Court of Appeals never considered the effect of this 1978 amendment on reciprocal disciplinary procedures. [fN24]
)
B. In Re Gotdberg: Creating an Interpretotion of ldentical Reciprocal Discipline Under the D,C. Bar Rules.
Ronald Goldberg was suspended from the practice of law fol thifly days by the Maryland Court of Appeals
[FN25] for violations of the Maryland Code of Professional Responsibility, Goldberg violated Maryland Disciplinary *1169 Rules 6-10l(AX3),7-101(A)(l-3), and 9-102(BX3-4), [FN26] as a result of his entrusting to a secretary work that would have been more properly performed by Goldberg. Specifically, Goldberg failed to supervise his secretary adequately, tFN27] neglected his clients, allowed his client esuow account *1170 to become
overdrawn, IFN2S] and failed to promptly correct violations of disciplinary rules once he became aware of them'
[FN29] Because of this conduct, at least two cases in his charge were compromised. [FN30] Goldberg was suspended from practice in Mayland for thirty days, [FN3 I ] from March 25 to April 24, 1982. [FN32]
On March 25, 1982, Goldberg's attorney properly informed the District of Columbia Bar Counsel of GoldBoard on
berg's Maryland suspension, [FN33] Acting according to the D.C. Bar Rules, the Dishict of Columbia
'less
than two
Professional Responsibility recommended disciplinary action [FN34] on April 72, 1982, with
weeks remaining in Goldberg's Maryland suspension. tFN35l The Board found that identical reciprocal discipline consisting of a thirty-day suspension in the District of Columbia should be imposed, [FN36]
*ll7l Respondent Goldberg filed exceptions with the District of Columbia Court of Appeals, [FN37] stating
that mitigating circumstances, especially the fact that he voluntarily had refrained from practicing in the District
of Columbia during his Maryland suspension, [FN3S] made application of the proposed suspension unjust.
tFN39l In considering Goldberg's arguments, the District of Columbia Court of Appeals initially noted that sec-
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Rule Xl requires that identical discipline be imposed baring certain exceptions [FN40]
ai oisetprine tn it-ris case 'itas a
nor presenl rn
by
Maryland.
thirly day suspension-one of equal length to that administered
[FN42]
tion l8(5) of D.C, Bar
The court then turned to the question of when the suspension should commence, Bar counsel argued that the
D,C, Bar Rules required every suspension to start thirty days after the order of the District of Columbia Court of
Appeals is entered, [FN43] while Goldberg argued that, if a suspension were to be imposed, it should be imposed nunc pro tunc to run concunently with his Maryland susponsion. [FN44] Goldberg based his.argument on
the fact that the United States Court of Appeals for the Fourth Circuit had imposed a retroactive suspension to
run concurrently with his Maryland suspension and that the United States District Court for the District of Maryland had not imposed any additional discipline , [FN45]
The Goldberg court examined the D,C, Bar Rules to determine whether they required the suspension to be
imposed prospectively. Section l9(3), [FN46] which requires a thirfy day delay before an order of suspension
may become effective, excepts section 18, [FN47] the reciprocal discipline provision, from its action. Bar Counsel asserted that this exception was limited to a *1172 single provision of section i8 which requires that recip'
rocal discipline in the District of Columbia be defened until the expiration of any stay of discipline that might
have been imposed by the original court. tFN48l The court heid that the thiay day delay in effecting discipline
did not apply to reciprocal discipline, tFN49] reasoning that the plain meaning of section l9(3) excluded section
18 from its action. [FN50] Furthermore, the Goldberg court applied the principles of statutory construction
[FN51] which dictate that, in resolving alleged conflicts of statutory language, each provision is to be given its
maximum effect so long as doing so does not perpetuate an obvious mistake, [FN52] The court thus held that
interpreting the thi$y day delay requirement as applicable to the reciprocal discipline section would limit unnecessarily the operation ofsection 18. [FN53]
Additionally, the District of Columbia Court of Appeals found that the Bar Counsel's reading of the D,C. Bar
Rules created an unnecessary conflist. tFN54l The court held that identical discipline constituted discipline
concurrent in time as well as duration, stating that any other result would increase the punishment beyond that
contemplated by the original court. [FN55] Therefore, the Goldberg court reasoned, interpreting the D'C. Bar
Rules to require a thirry day delay before a reciprocal suspension becomes effective would result in punishment
greater than that imposed by the original forum. tFN56l This necessarily would conflict with the rule requiring
that discipline*lt73 be identical, tFN57] Consequently, preservation of internal consistency in the D,C. Bar
)
Rules demanded that no delay be irnposed in the reciprocal discipline situation. [FN58]
The effect of *re court's unwillingness to apply the thirty day-dfter-order date to reciprocal discipline cases
is to render the D,C. Bar Rules silent as to the effective date of sanctions, The Goldberg court held tlrat, when
the rules are silent, it has discretion to decide the effective date of the sanction. [FN59] The court's decision that
only concurrent discipline was truly identical discipline in the Goldberg situation prompted the court to exercise
its discretion in favor of a retroactive sanction. tFN60] Moreover, the court indicated that consurrent identical
discipline is the prefened sanction in reciprocal discipline cases. [FN5l]
*1174 In concluding, the Goldberg court attempted to decide whether Goldberg's case warranted imposing
identical discipline under Rule XI, section lS(5) of the D.C. Bar Rules. [FN62] The court considered factors
arising from Goldberg's conduct subsequent to the Maryland suspension order which might mitigate or aggravate the quantum of harm done to th€ interests which the District of Columbia seeks to further when it administers bar discipline. tfN63l The court stat€d that Goldberg's alleged voluntary withdrawal from the practice of
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law in the District of Columbia constituted an important mitigating factor militating in favor of retroactive discipline. Conversely, his continued practice during that period would have been an aggravating factor, favoring
the application of a stronger sanction, [FN64] The court determined that it could not make a decision regarding
the propriety of identical discipline because the record of the proceeding before the District of Columbia Board
on Professional Responsibility tFN65l oontained no finding of fact conceming whether Goldberg had actually
refrained from practice in the District of Columbia during his Maryland suspension, [FN66] Therefore, the case
was remanded to the Board for further fact finding. [FN67]
.
*I I75 II, IS CONCURRENT RECIPROCAL DISCIPLINE THE MOST IDENTICAL ALTERNATIVE?
The Goldberg court, in deciding that concunent suspension constituted the most nearly identical form of re'
ciprocai discipline, considered only two of at least four possible sanctions which arguably were identical to the
Maryland discipline. The courf limited its considerations to concurent sqspensions [FN68] and a suspension to
become effective thirty days after the District of Columbia coufi order, [FN69] Two other possible disciplinary
measures not considered by the court are discipline to become effective immediately upon court order, and no
additional discipline. To determine which of tlrese four possibilities most nearly constitutes identical discipline,
the yardsticks by which they may be measured-the goals of lawyer discipline-must first be examined.
A. Evaulating the Purpose of Bm Discipline
The District of Columbia Code of Professional Responsibility (D.C, Code) [FN70] hints at the purposes of
attorney discipline only in its preamble, where it states that ' I awyers, as guardians of the law, play a vital role
in the preservation of socie{,' [FN7l] The preamble shesses that lawyers have a responsibility both to the legal
system and to the society within which they function, [FN72] The D,C. Code also states that the disciplinary
rules and ethical considerations embodied in its text express expected standards goveming lawyers' relationships
with the public, the legal ;ystem, and the legal profession. [FN73] Lawyer discipline in the District of Columbia,
therefore, must be imposed primarily to protect these stated interests.
District of Columbia case law regarding bar discipline reveals an effort to protect the same interests mentioned in the preamble of the D,C. Code. Essentially, these interests are to protect the public, [FN74] and to
maintain the *1176 integrity of the legal profession, tFN75l The case law also adds goals which are not specific'
ally mentioned in the D.C. Code, such as deterrence of proscribed behavior, [FN76] rehabilitation of the offending lawyer, [FN77] restitution to harmed clients, [FN78] and penalizing of the attorney, tFN79l Legal commont'
ators and the authors of model codes agree wittr the D.C. Code and the District of Columbia's case law regarding
the purpose of professional discipline except to the extent that the latter condones punishment as. a purpose of
the bar disciplinary system. [FN80]
Distilling the teachings of the commentators, the District of Columbia's *1177 case law, and the
the goals of bar discipline in the District of Columbia may be summarized as follows:
l.
D'C'
Code,
To protect the public from unfit lawyers;
2. To protect thejudicial system from con'uption by unfit lawyers;
3, To rnaintain appropriate standards for the profession;
)
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4. To maintain public confidence in the profession;
5. To deter lawyers from comrnifting breaches of professional ethics; and
6. To punish offending lawyers. [FN8l]
B, Evafuating the Effect of the Alternative Forms of Reciprocal Discipline
A comparison of the four alternative methods of apptying arguably identical sanctjons reveals which one
would besi effectuate the purposes of the disciplinary' iystem in a case such as Goldberg. The District of
Columbia Courl of Appeals'could conceivably apply any of the four methods of imposing discipline identical to
a suspension originaliy ordered by another jurisdiction. These alternatives are: no additional discipline in the
District of Columbia; i suspension of equal length to be applied retroactively so as to run concurently with the
foreign suspension; a suspension to become effective immediately upon order of the District of Colurnbia court;
and suspension to become effective thirly days after order of the coutt. [FN82]
1. No
Further Discipline Constitutes Lighter than ldentical Discipline
The United States District Court for the Dishict of Maryland considered Goldberg's case and decided not to
impose any discipline in addition to that already meted out by tlre Maryland Court of Appeals' [FN83] Goldberg
I
clalmed not to have practiced law in any federal or state court while suspended*ll78 by the Ivlaryland Bar'
sys[FNS4] If the District of Columbia adopted the Maryland district court's approach, the public a1d the legal
iem would have been protected from a continuation of Goldberg's unprofessional activities if, in fact, Goldberg
had not practiced in the District of Columbia during his Maryland suspensibn. However, a decision of record in
which the District of Columbia Court of Appeals refrained fiom imposing discipline would undermine the standards of the legal profession as well as puLiic confidence in the profession, It would also fail to deter lawyers
from committing hrture breaches of the disciplinary rules. The decision could be interpreted by the public and
the bar as condoning the behavior, or at the very least, as not condemning it.
The Dishict of Columbia's failure to impose its own discipline would not constitute identical discipline' Its
discipline would be lighter ttran that imposed by the Maryland court. The Maryland suspension amounted to
public recognition of the wrongfulness of Goldbetg's action. If the District of Columbia declined to impose furiher discipline, there would bJno recognition of Goldberg's wrongdoing in the District, The seriousness of acknowledging an attorney's,wrongdoing cannot be over emphasized. [FN85] Thus, at least a pro forma suspension
by the District of Columbih is neiessary for ensuring that its discipline is equal to that imposed by Maryland.
The concurrent reciprocal suspension suggested by the Goldberg covrt, involving public recognition of the
attomey's wrongdoing through an order suspending the offender, would result in the most nearly identical form
of discipline tirat ttrJ District of Columbia could apply. By issuing such a disciplinary order, the District of
Columbia would add the necessary publicity to the n6-iirrthlr-disciptine approach, Concurrent reciprocal discipline maintains public confidence in the legai system by virtue of the court's imposition of punishment for wrongdoing. Additionally, imposition of discipline lielps to deter other lawyem from unprofessional activities, thereby
aiding in the maintenarce ofthe standards ofthe legal profession.
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ln Goldberg, District of Columbia Bar Counsel argued that concurrent suspension was not a sufficient pun*1179 bia
ishment because the respondent enjoyed all the rights and privileges of an afiorney in the District of
during his Maryland suspension, tFN86l Additionally, Bar Counsel argued that Goldberg's suspension of pragtice was not a form of discipline because the withdrawal was voluntary, [FN87] It is difficult to understand,
however, what privileges Goldberg could have enjoyed, Indeed, under Maryland law, he could not have practiced in the District of Columbia as long as his office was located in Maryland, IFN88I lt is true that Goldberg
could have exercised the privilege of holding himself out as an attontey in good standing in the District of
Columbia during his Maryland suspension, This privilege, however, would have been meaningless since Goldberg could not have astually practiced without violating Maryland's rules. Fufther, whatever status Goldberg enjoyed frorn knowing that he was an attomey in good standing in the District of Columbia would be dashed by
imposin g retroactive discipline,
Admittedly, an order for retroactive discipline would not obviate the fact that Goldberg was allowed to claim
membership, albeit without practicing, in the District of Columbia bar after his Maryland discipline, but the benefit of this temporarily unblemished standing is ephemeral at best, It is also a benefit which cannot be removed
by either prospective or retroactive action, since it was enjoyed before the District of Columbia Court of Appeals could hear the case, Additionally, imposition of a prospective suspension in an attempt to compensate for
ihe period of time in which Goldberg was a titular member of the District of Columbia bar after his Maryland
suspension would have a primarily punitive effect from which neither the public nor the bar would benefit. Goldberg's inactivity served to protect the public and the court system from potential unprofessional conduct
even though his withdrawal was voluntary.
3.
Su.snension
l*"nro.d Afr* Ordo, trrho
D
es
ryll@
District of Columbia Bar Counsel's brief for the case In Re Berger. [FN89] which was filed after the Goldbergbrief, [FN90] departs from the position taken *1180 by Bar Counsel in.Goldberg, tFNgll ln the Berger
brief, Bar Counsel argued that reciprocal discipline cases were exempted from the rule requiring suspension to
become effective thirty days after the court's order. [FN92] Bar Counsel urged that this exception was meant to
allow suspensions to become effective immediately upon the court's order, [FN93] This argument implied that
the thirfy-day provision, which specifically contemplated use of the period between the issuance of the order and
its effective date as an opportunity to wind down business, [FN94] was unnecessary in reciprocal discipline
cases because the process already contained a
built-in delay of approximately sixty days. [FN95]
The Berger argument also leaves imposition of discipline to the court's discretion because, like the Goldberg
decision, it stands for the proposition tlat reciprocal discipline cases are exempted from the thirry-day delay
rule. It simply gives the court a rationale for imposing immediate disoipline. In practice, it makes little difference whether the reciprocal suspension begins immediately upon the forum coutt's order or thirty days thereafter, Either an immediate or a thirfy-day delay of the District of Columbia suspension would, as the court pointed out, [FN96] increase the total discipline imposed. Nonconcunent discipline is especially punitive in a situation like Goldberg's, in which the suspension in the original jurisdiction has run its course. Nonconcurrent discipiine would force a lawyer once again to call clients with confidence-shattering news, [FN97] to reschedule
*1181 cases, and to arrange for coverage ofclients'needs by other lawyers. Ifthe'possible loss of. . . respect
and confidence is the ultimate sanction,' tFN98l the lawyer would have been sanctioned twice. That is not
identical punishment, but additional punishment.
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III. CONSIDERATIONS REGARDING THE APPROPRIATENESS OF APPLYING IDENTICAL RECIP.
ROCAL DISCIPLINE IN A SPECIFIC CASE: MITIGATING AND AGGRAVATING FACTORS
As discussed earlier, [FN99] the District of Columbia Court of Appeals in Goldberg based its analysis of
identica! discipline on section 18(5) of the D.C. Bar Rules, which requires application of identical discipline except in five specified situations. [FN I 00] These exceptions arc as follows:
a. When there has been lack
of due process in the originalforum; [FN10l]
b, When there has been a slear infirmify of proof in the original forum; IFN I 02]
c. When imposing identical discipline in the District of Columbia would constitute grave injustice; IFN 1 03]
d, When the misconduct elsewhere wanants substantially different discipline in the District of Columbia;
[FNl04]and,
e, When the misconduct elsewhere does not constitute misconduct in the District
of Columbia. IFN 105]
Assume a situation in which the original forum accorded the defendant due process and made its findings of
fact based on adequate proof. Further assume that the original forum has disciplinary rules which proscribe the
same sort of conduct proscribed in the Disbict of Columbia. [FNl06] Given these assurnptions, the only exceptions under D,C, Bar Rule Xl that could result in the imposition of a different degree of discipline are situations
in which identical discipline in the District of Columbia would constitute a *1182 grave injustice, or in which
the misconduct in the original forum would wanant substantially different discipline in the District of Columbia.
[FNl07] Such situations would arise either when the District of Columbia attaches substantially different punishment to the same violation, or when the offending attorney has done something after the original adjudication
which calls for the imposition of different punishment at the time that the District of Columbia passes judgment.
The Goldberg court found none of the situations contemplated in the rule XI exceptions to be present regarding the Maryland decision, [FNl08] However, the court was unwilling to apply the same discipline without remanding to determine whether developments occurring between the time of the Maryland decision and the time
of the District of Columbia order had changed the appropriateness of applying identical discipline. [FNl09] ln
remanding the case, the court was concemed that circumstances occurring in the interim might have warranted
different discipline in the District [FNl I0] or given rise to some situation which would result in a grave injustice
if the court imposed identical discipline. IFN11l]
The District of Columbia Court of Appeals identified two factors which could aggravate [FNl12] the situ-.
ation and cause imposition of a harsher discipline, [FNl13] These aggravating factors were a lawyer's unreasonable delay in notifling the District of Columbia Bar Counsel of his having been disciplined in another jurisdic.
tion, and a lawyer's practicing law in the District * I I 83 of Columbia while being suspended elsewhere, IFN I I 4J
The converse of these behaviors was viewed by the court as mitigating factors. IFNl15]
Both the District of Columbia case law and legal commentators haditionally have held that aggravating and
mitigating factors should be taken into account in dispensing disciplinary sanctions. [FNl16] In identif,ing two
mitigating factors which are cinsistent with those haditionally recognized, [FNl17] the Goldberg court revealed
a willingness to examine aggravating and mitigating circumstances before deciding whether discipline identical
to that imposed on'an attomey by a foreign jurisdiction is appropriate. Application of this reasoning to all recip-
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rocal discipline cases would make uniform the standards to be applied in determining the proper sanctions for a
given violition of the disciplinary rules, whether the violation occuned in the District of Columbia or elsewhere.
Such a result would promote truly fair application of reciprocal discipline. IFN I 1 8]
*1184IV, CONCLUSION
The Goldberg court conectly decided that the only way to impose truly identical discipline upon
a lawyer
suspended in another jurisdiction who has voluntarily refrained from practice in the District of Columbia during
thai suspension is to impose a retroactive concurrent suspension. In this way both jurisdictions equally serve the
disciplinary goals of bar sanctions. Moreover, the public is protected from the lawyer's unprofessional practice
through his ibsence from practice in each jurisdiction for an equal amount of time. The confidence of the public
in each bar is maintained in equal measurl by public announcements of suspensions of equal terms. Essentially
all of the goals of lawyer disiiplinary proceedings are achieved by the Wo disciplinary steps taken together.
tFNllgl Additionally, retroactivi coniurrent discipline is the least punitive, and.therefore the fairest method of
accomplishing these goals.
Goldberg also gave guidance as to when identical discipline should and should not be imposed. The court
itthe absence of aggravating or.mitigating factors, concunent suspension will be wananted. In
suggesting how to determine whethei-such faitors exiit, the court hinted that the Disfict of Columbia, in order
to drtr*jne whether identical discipline is appropriate in any given case, may apply those aggravating or mitiqating factors it has used in the past to decide ihe severity of sanctions to be imposed, If the District of Columbia
Court of Appeals follows this tl185 guidance, the result will be a fair determination of the appropriate reciproc-
wisely heldlhat,
al bar discipline,
l
re Van Bever,
[FN l ]. The action of a state court in a disciplinary proceeding has no extratenitorial effect. See In
3S eiir.368, l0l P,2d7g0 (1940). A disciplinary action is an in rem action which binds the world. Full faith
and credit, however, requires only that every other jurisdiction recognizs that a disbaned attomey may not practice in the state rendering the disciplinary judgment, See, e.g., Kentucky Bar Ass'n v. Signer, 533 S,W'2d 534
(l(y, 19?6). Even though attomeys are ad;itbd to federal courts by way of state courts, they do not lose their
right to practice in federal court when they have lost their right to practice in the underlying state court, Each
federal court must decide for itself whethei to discipline the attorney, See Theard v. United States, 354 U.S. 278
(f 9-57); 7A C.i.S. Athrney & Client $ l2l (1930 & Supp. 1983). See also In re Mackay,298 F. Supp' 170,171
(D, Alaska 1969) (attorney suspended by Alaska bar does not automatically lose his right to practice in the
United States District Court for the District of Alaska).
(1977)' Federal
[FN2],,Seq e.g., In re Weaver, 272lnd,4gl,3gg N.E,2d 748 (1980);Annot,,8l A,L,R,3d 1281
courts, howevir, accept the results of state disciplinary proceedings merely as competent evidence, not as conclusive proof, of the wrongdoing, Nevertheless, itate findings are given great deference. See Wrighten v. United
States,550 F.2d99O (4th Cir. 1977); In re Abrams, 52lF.2d 1094 (3d Cir.), cert. denied,4z3 U,S' 1038 (1975).
[FN3]. Even when the forum court accepts the original court's determination of the wrongdoing as conclusive,
,See, e.g,, In re Yan
seven years between
(lawyer
in
the
himself
(1940)
may have rehabilitated
Bever, 55 Ar.iz, 368, l0l P.2d 790
California disbarment and Arizona disciplinary proceeding for the same activity), Furthermore, the violation in
the original jurisdiction may not be a wrong'to which the same (or any) punishment is attached in the forum
mitig;ting factors may make different disciplinary action appropriate in the forurn state,
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state. See, e.g., In re Weiner,530 S.W.2d ?22 (Mo. l9?5); Florida Bar v. Wilkes, 179 So.
Annot.,8l A.L,R,2d l28l (1977).
2d
193 (Fla. 1965);
see also
[FN4]. Sea e.g., In re l(aufman, 8l N.J. 300,406 A.2d 9'12,973 (1979): JOINT COMM. OF PROF. DISCIPLINE OF THE APP. ruDGES' CONFERENCE AND THE ABA STANDING COMM. ON PROF, DISCP.
LINE, STANDARDS FOR LAWYERS'DISCPLINE AND DISABILITY PROCEEDTNGS, at StAndATd 10.2
commentary (approved draft 1979) (citing state cases) [hereinafter cited as ABA DISCPLINARY STAND-
ARDS], The United States Supreme Court has found that disbarment by a state bar should lead to disbarment
fi'om practice before the Court with three exceptions: l) where there was lack of due process in the state procedure; 2) where there was a clear infirmity of proof at the state hearing; or 3) where disbaning the attomey because of the state court's findings would otherwise constitute.a grave injustice, Selling v, Radford' 243 U,5.46,
5l (1916). Additionally, misconduct in one state may not constitute wrongdoing in another, ,See Florida Bar v'
Wilkes, f 79 So, 2d at 197, Moreover, misconduct in one state may warant substantially less discipline in anoth'
er state. In re Cook, 67 Ill.2d 26, 364 N.E.2d 86, 87 (1977). See infra notes 9-14 (discussing D.C. BAR RULES
and the exceptions set fofih above); see also infra notes 109-18 and accompanying text for discussion of mitigating factors that may result in the imposition of different discipline by the District of Columbia Court of Appeals
in a reciprocal discipline situation,
[FN5],SeeABADISCIPLINARYSTANDARDS,supranote.4,atStandard
l0,2commentary.
[FN6].See, e.g.,D.C. APP. RULES GOVERNING THEBAR, RuleXI $ 18(5) [hereinaftercited as D"C. BAR
RULESI.
lFN7l.1d $ r8(r).
lFN8l. /d. $ r8(6),
[FN9]. /d. g 18(5)(a) ('The procedure elsewhere was so tacking in notice or opportunity to be heard as to constitute a deprivation of due process.'). See supra note 4 and accompanying text,
note 5, at $ 18(5)(b) ('There was such infirmity of proof establishing the misgive
rise to the clear conviction that the Court could not, consistent with its dufy, accept as final
conduct as to
the conclusion on that subject .'). See supra note 4 and accompanying text,
[FNl0], D,C. BAR RULES, supra
IFN I I ]. D.C. BAR RULES, sapra note 6, at $ I 8(5).
tFNl2l, /d, $ l8(5)(c), 'The imposition of the
See supra note 4 and accompanying
same discipline by the Court would result
in grave injustice,'/d'
text,
[FNl3]. D.C. BAR RULES, suprq note 6, at $ l8(5Xd), 'The misconduct established warrants substantially
ferent discipline in this jurisdiction.' ld, See supra note 4 and accompanying text.
dif'
tFNl4l. D,C, BAR RULES, supranote 6, at $ l8(5Xe), 'The rnisconduct elsewhere does not constitute misconduct in the District of Columbia,' Id. See supra note 4 and accompanying text,
lFNrsl.
460 A.zd e82 (D,C, r983).
IFNl6]. D,C, BAR RULES, saplqnote 6, at $ 18(5),
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[FN l7J, Goldberg,460 A.2d at 983, See infra notes 46-58 and accompanying text.
IFNl8], Goldberg,460 A.zd at 983, See lnfranotes 59-60
[FN'I9].
See
and accompanyingtext.
infra notes 62-67 and accompanying text,
lFN20l. Goldberg,460 A.2d
ar 985.
[FN2l], See, e,g,, /n re Kessler, 89 lll.2d 151,433 N.E.2d 643 (1982) (sister state's imposition of sanction persuasive of sanction's propriety, but not binding on Illinois; concunent suspension imposed in absence of aggrav-
ating factors and preienie of some mitigating factors); In re Kauffnan, 8l N.J. 300, 406 A.zd 972 (1979) (in
seeking to impose identical discipline, New Jersey court held that suspension was to run concurrently with indefinite New York suspension; tius, attomey would be allowed to apply for reinstatement in New Jersey only
aftel New York court had reinstated him); Copren v. State Bar, 64 Nev, 364, I83 P.2d 833 (1947) (attorney sus'
pended in Nevada for the remainder of the time left in his California suspension; nonconcurrent suspension of
ihe same length was expressly rejected); In reBrown,60 S.D. 628,245 N,W. 824 (1932) (principles of comity
dictated that attorney suspended from practice in Wyoming be suspended for same period of time in South Dakota)'
[FN22]. The only pre-1978 District of Columbia case noted was the unpublished case In re Levanthal, No,
S-qg-ll (O.C. Sdpt. 22, lg77). See Gcttdberg, 460 A.zd at 984 n.3. ln Levanthal, a reciprocal suspension was
ordered to run concurrently with that in another state. Id. The Maryland Court of Appeals suspended Levanthal
for six months, from March 9, to September 9, 1977. The District of Columbia Court of Appeals originally suspended Levanthal for six months nonconcunently, the suspension to become effective immediately. The court's
order was issued on july 14, 1977, and the suspension was to have run until January 14, 1978, In re Levanthal,
No. 5-49-77 (D.C, July 14, 1977), 105 DAILY WASH, L, REP, 1328-29 (July 26, 1977) (order imposing immediate suspension of six months duration), The suspension was subsequently changed so as to run concurrently
with the Maryland suspension. In re Levanthal, No, 77-0169 (D.C. Oct, 5, 1977), 105 DAILY WASH' L. REP,
l85l (Oct, 13, 1977) (altering suspension so as to run fiom Mar. 9, 1977 to Sept, 9, 1977). See Goldberg,460
A,2dat984n.3; InreDwyer,399 A.Zd I, l1(D.C. 1979).
tFN23l. D,C, BAR RULES, supranote 6, at $ l9(3) ('Exoept as provided in secs. 15 and 18 of this rule, orders
imposing disbarment or suspenlion shall be cffective 30 days after entry.' /d), Seotion 19(3) was added to the
D.C. Bar Rules in 1978. Goldberg,460 A.2d at984.
tFN24l, The sourt characterized the issue as a matter of first impres sion. Goldberg, 460 A.Zd at 984.
tFNzsl. Ld. at983,,See Attornoy Grievance Comtn'n v, Goldberg,292Md.650,44l A.zd338 (1982).
tFN26l. The disciplinary rules in question provide in part:
DR 6-l0l Failingto Act Competently.
(A), A lawyer shall not:
(3) Neglect a legal matter entrusted to him,
DR
)
7-l0l
Representing a Client Zealously.
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(A) A lawyer shall not intentionally:
iij'nuif to seek the lawful objectives of his client through reasonably available means permitted by law
and the Disciplinary Rules . , ., A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
(2) Fail to carry out a contraet of employment entered into with a client for professional services, but
he may withdraw as permitted. , ,,
(3) Prejudice or damage his ctient during the course ofthe professional relationship , , ..
DR 9- I 02 Preserving ldentity of Funds and Property of a Client.
(B) A lawyer shall:
i:1'Uaintain complete records of all funds, securities, and other properties of a client coming into the
possession of a lawyer and render appropriate aocounts to his client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other proper'
ties in the possession of the lawyer which the client is entitled to receive.
MD. ANN. CODE, appendix F (MARYLAND CODE OF PROFESSIONAL RESPONSIBILITY), See MD.
ANN, CODE RULE 1230 (MARYLAND RULES OF PROCEDURE, ch, 1200, Court Administration) (Rule
1230 adopted the American Bar Association Model Code of Professional Responsibility as the MARYLAND
CODE OF PROFESSIONAL RSSPONSIBILITY).
The perrinent sections 0f the DISTRICT oF CoLUMBIA CODE OF PROFESSIONAL RESPONSIBILITY
are identical to those of the MARYLAND CODE OF PROFESSIONAL RESPONSIBILITY. See NATIONAL
CENTER FOR PROFESSIONAL RESPONSIBILITY, AMERICAN BAR ASSOCIATION, CODE OF PROFESSIONAL RESPONSIBILITY BY STATE (M. Proctor, director) (1980) at table I [hereinafter cited as CODE
oF PROFESSIONAL RESPONSIBILITY BY STATEI,
[FN27]. Goldberg, 441 A.zd at 339-42. A particularly telling portion of Goldberg's testimony describes the extent of his failure to supervise his secretary:
Then when I came in one day unexpectedly and I found the shades were drawn in the office and the
TV set was on Ms, Hecknefs desk and the phones were all lit up and no one was on the phones. I asked,
'What the hell was going on?' It was a work day, She said, 'Well, I was trying to get caught up, I was too
busy, I put all the phones on hold so no one could call in.' I said, 'Let me tell you something. Don't ever
do that again,'
Id. at34l.
[FN28]. Goldberg's secretary failed to deposit money into the clients' escrow account. Goldberg continued to
pay out of the account, causing an overdraft. He was unaware of the overdraft because he did not check his bank
statements. When informed of the overdraft by the bank manager, Goldberg did not restore the funds for more
than a week. The bank eventually stopped paying the checks. 1d
lFN29l..r/,
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./d.
tFN30l. Goldberg failed to file a client's suit, even though he received a fee for supposedly having done so'
Id'
client.
Goldberg's
against
be
entered
to
decree
filed,
causing
a
answer
in
case
not
An
a
second
was
atZq-qZ,
In each case, it was suspected that Goldberg left the work to his secretary, who failed to do it. Id.
costs were paid in con'
[FN3 l], The suspepsion was to continue after the stated 30 days unless and until all court
nection with the Maryland Court of Appeals proceeding. Id, at342-43.
[fN32], Brief forRespondent atl,Goldherg,460 A.Zd 982 (D,C, 1983)'
to inform
lFN33l. Goldberg,460 A,2d at 984. Attorneys admitted to the District of Columbia Bar are required
ihe Oistrict of Columbia Bar Counsel upon being subjected to disciplinary action in another jurisdiction. Bat
Counsel is then to obtain a copy of the order frorn the other jurisdiction and file the foreign order with the clerk
of the District of Columbia Court of Appeals and with the District of Columbia Board on Professional Responsibif ify. D.C, BAR RULES, supta note 6, at $ l8(1), The Maryland Court of Appeals had sent a copy of their order to the District of Columbla Board on Prbfessional Responsibility. The copy was received on Mar. ll, 1982.
Goldberg,460 A.zd at 984 n.2,
professional discipline
[FN34], The District of Columbia Board on Professional Responsibility is charged in
cases with recommending appropriate action to the court of appeals, D.C, BAR RULES, supra note 6, at $ 4.
The Board tnay t rome-nO'ejttrir dismissal, adoption of a disciplinary sanction, or a de novo review by the District of Columbia Court of Appeals. D.C, BAR RULES, supra note 6, at $ 7'
case
lFN35l, The District of Columbia Court of Appeals made its final decision on disposition of the Goldberg
on Mar. 30, 1983, nearly a year after the Maryland suspension had ended, Goldberg, 460 A.Zd at 982.
lFN36l. Id, at 984. Section l9(3) of Rule
XI of the
D.C. Bar Rules requires that an order of the District of
botum-bia Court of Appeals impoiing a suspension shall be effective 30 days after enfiy, except as_provided in _$
15 (conceming attorneys conviited Jf serious crimes, which was not a faetor in Goldberg) and $ 18. D.C' BAR
RUiES, suprinote 6, at g l9(3). Section 18 is the reciprocal discipline section, A major issue in Goldbergwas
the determination of whetier the g 19(3) 30 day delay was applicable to reciprocal discipline, Goldberg' 460
A.Zd a1984, If so, the rule would necessitate prospective application of the suspension.
must review
[FN37], 460 A,2d ar 985. Under the D.C. BAR RULES, the District of Columbia Court of Appeals
are
exceptions
if
timely
Responsibility
Professional
on
Columbia
Board
of
the
Distrist
of
recommendation
a
filed by the attorney who is the subject of the action. D.C. BAR RULES, supranote 6, at $ 7(3).
1FN381.460 A.Zdat984.
tFN39l. Brief forRespondent at6,Goklberg,460 A.2d982 (D.C. |983)'
[FN40], See supranotes 9-14 and accompanying text.
[FN4l ].
G
oldberg, 460 A,2d at 984.
[FN42].1d.
tFN43l, Brief for Bar Counsel at 9,
I
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oldberg, 460 A.zd 982 (D.C. I 983). See supr a note 36,
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I
[FN44]. Brief forRespondent at6,Ooldberg,460 A,2d 982 (D.C, 1983),
tFN45l. td. Goldberg,460 A,2d at 986 n.t (Kelly, J., dissenting in part); See also Eupranotes2-3 and accomPanying text.
[FN46]. D.C, BAR RULES, supra note 5, at $ I9(3); see supra note 36.
[FN47]. D.C, BAR RULES, supra note 6, at $ l8; see supranote 36,
iFN4Sl, D.C. BAR RULES, supra note 6, at $ 18(4); see Brief of Bar Counsel at 9 n,2, Goldberg, 460 A.zd 982
(D.C. re83).
[FN49]. Goldberg,460 A.2d
at 985,
lFN5Ol, Id. at984. Section l9(3) of Rule XI of the D.C. BAR RULES reads in part: 'Except as provided in $ 18
of this rule, orders imposing disbarment or suspension shall be effective 30 days after entry,' D,C. BAR RULES,
suprc note 6, at Rule XI $ l9(3),
and not statutes, However, it stated that rules of
construction
rules. Id. at 985 n,5 (quoting 3 C. SANDS,
in
interpreting
court
statutory
are 'commonly used'
SUTHERLAND STATUTORY CONSTRUCTION $ 67,10 (4rh ed. 1974)).
tFNs]l. The court recognized that it was interpreting court rules
lFN52l, Goldberg, 460 A.zd at 985, See 2A C. SANDS, SUTHERLAND STATUTORY CONSTRUCTION
46.04 (4th ed.1973 & Supp. 1983).
$
tFN53l. Goldberg,460 A,zd at 985, If the thirty-day delay provision ($ l9(3) the D.C. Bar Rules) applies to re'
ciprocal discipline, then the reciprocal discipline section (g l8) must be read reshictively. If $ l9(3) does not apply to $ 18, then $ l8 may be read more expansively, so as to allow both retroactive and prospective application.
Conversely, interpreting $ I9(3) as exempting only the portion of $ l8 regarding stays of discipline in another
court ($ l8(4)) resficts the effect of $ l9(3), while reading $ l9(3) so as to exempt all of $ l8 gives the exemp'
tion clause its fullest possible effect.
[FN54]. Goldberg, 460 A.zd ag 985.
[FN55]. Id, The punishment is increased in part because the total time of suspension from practice is increased
from thal contemplated by the original court. Id.
IFN56],Id
[FNs7]. D.C. BAR RULES, supranote 6, at $ l8(5).
lFN58l. Goldberg, 460 A.2d
ar
See
supra note
ll
and accompanying text.
985.
[FN59], Id. atgS3.Exercise of the power to decide the timing of the suspension is consistent with the District of
Columbia Courl of Appeals' broad power to regulate bar admission and conduct, The court's power was recognized as early as 1823 in Ex parte Burr,2 D,C, (l Cranch) 379 (1823) (applyingthe laws of Maryland as District
of Columbia local law), ln Burr, it was held that the court had tle power to scrutinize, suspend, or summarily
disbar an attomey. In 1939, the Court of Appeals, in Mullen v. Canfield, 105 F.2d 47,48 (D.C. Cir' 1939), held
that the court which admits an attorney to a bar may also suspend him unless there exists apparent conh'ary le-
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gislative intent. At the time of Mullen, the authority to' discipline members of the District of Columbia Bar was
vested in the United States District Coult for the District of Columbia. In re Keiler,380 A,2d 119, 123'25 (D.C.
1977), The district court was 'guided by, but not limited to' the ABA Code of Professional Responsibiliflr 9.nd
operated under no specific standards as to what conduct should be sanctioned. Id, at 123, The present disciplinary system became effective on April 1, 1972. The Court Reform and Criminal Procedure Act of 1970, passed
by the United States Congress, gave the power to .discipline the District of Columbia Bar to the Districf of
Columbia Court of Appeals, and required the court of appeals to make rules goveming bar discipline. ld. at 124'
The plenary authority to discipline lawyers described in Burr and Mullen, however, also has been held to have
passed to the District of Columbia Court of Appeals by virtue of the 1970 Aet, Id. See D.C, CODE AI'IN' $
1l-2502 (1973); 7 C.J.S, Attorney & Client $ 60 (1980) (the legislature may confer the power to suspend or disbar on any court).
Some courls have held that the power of the state's highest court is independent of bar rules. In that regard,
statutory provisions have been found to aid the inherent power ofthe court ratherthan to give the cout't only that
power which is confined to the limits of the statute. See, e.g., In re Feingold, 296 A.Zd 491 (Me. 1972); 7 C'J.5.
Attorney & Client $ 60 (1930), In Goldberg, the court of appeals did not have to reach the question of whether
pursuani to the Court Reform and Criminal Procedure Ast of 1970, were
the D.C. Bar Rules, promulgated
'court
found itself to be operating in an interstitial space between provisions of the D.C'
merely advisory, The
Bar Rules, Therefore, its inherent power was declared to be unfettered. Galdberg,460 A,zd at 983.
[FN60]. Coldberg,460 A.zdaI985. See supranotes 40, 55 and accompanyingtext,
tFN6ll. Goldberg,460 A,zd at 985. Ths court found that its discretionary power to impose identical discipline
was guided by g l8(5) of Rule XI of the D,C. Bar Rules, See supranote 1l and accompanying text. The exceptions fisted in g I 8(5) were suggested as the circumstances under which greater or lesser sanctions (including,
presumably, no reciprocal discipline or nonconcurrent discipline) would be imposed, Goldberg, 460 A.2d at 985.
See infra notes I0l-05 and accompanying text.
[FN62]. See supra notes I 1-14 and accompanying text,
lFN63l. The court treated $ l8(5)(c) of Rule XI of the D,C. Bar Rules as the provision which allowed for the
ionsideration of aggravating and mitigating factors, Section l8(5Xc) allows for the application of different discipline when imposition of identical discipline 'would result in grave injustice,' Goldberg, 460 A.zd at 985
(quoting D.C, BAR RULES, supranote 6 at Rule XI $ lS(sXc)). See infra note 103 and accompanyingtext;see
atso infra note 8l and accompanying text (listing the interests of the District of Columbia in imposing bar discipline),
[FN64]. The court also mentioned as a mitigating factor an attomey's prompt notification to the District of
Columbia Bar counsel upon being disciplined in another jurisdiction. Failure to notif, bar counsel was expressed
as an a1gravating factor. Goldbeig, 460 A,zd at 985. Goldberg was found to have promptly notified the District
of Columbia Bar Counsel of his Maryland suspension, Id, See also ifranotes I 12-15 and accompanying text'
[FN65], See supra note 34 and accompanying text,
lFN66l. Goldberg,460 A,zd at 985-86,
tFN67l, /d On remand the gourt also allowed the Board to 'consider any other evidence bearing on the question
of whettrer the suspension should be concunent or consecutive.' Id. The coufi retained jurisdiction, however, de-
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...._.)
manding that the case be returned for entry of a final order, ld, at 985-86, Judge Kelly conculred with the court's
reasoning, but found the facts to be sufficient t0 impose a concurrent reciprocal suspension without remand. /d.
at 986 (Kelly, J,, dissenting),
On rernand, the Board on Professional Responsibility recommended to the District of Columbia Court of
Appeals a 30-day suspension to run concurently with Goldberg's long since expired Maryland suspension, The
court so ordered. In re Goldberg, No, M-l 17-82 @.C, Mar, 30, 1983), I I I DAILY WASH. L, REP. 1159 (July
16, 1983) (order imposing a 30-day suspension in the District of Columbia, to run from Mar.25, 1982 to Apr.
24,1982).
IFN68]. 460 A.2dat984,
lFN69l. Id. at98s.
tFN70l, D.C, BAR RULES, supra note 6, at appendix A, For the purposes of this Note, the DISTRICT OF
CoLUMBIA CODE OF PROFESSIONAL RESPONSIBILITY [hereinafter cited as D.c. coDE] is identical in
all respects to the ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1981), except that the D.C.
CODE does not incorporate the footnoted material appearing in the ABA MODEL CODE OF PROFESSIONAL
RESPONSIBILITY, See CODE OF PROFESSIONAL RESPONSIBILITY BY STATE,
szIpTA NOIE26.
[FN7l]. D,C, CODE, supronote 70, atPreamble.
[FN72], 1d. at Preamble and Preliminary Statement
ld
at Preliminary Statement, Of importance for Mr, Goldberg, the Preliminary Statement also says tttat
should ultirnately be responsible for the conduct of his employees and associates in the course of t]e
professi onal representati on of the cl ient.' Id
lFN73l,
'[a] lawyer
I
IFN74I. InreHaupt,422 A.zd768,771(D.C. 1980);/nreSmith,403 A.2d296,300 (D.C, 1979); InreWild,
361 A.zd 182, 183 (D,C. 1976); District of Columbia Bar v. Kleindienst, 345 A.2d 146,'147 (D.C. 1975) (the
purpose of discipline is protection of the public, not the punishment of the offending lawyer).
[FN75], Haupt,422 A.Zd at 771 and Snlith,4O3 A.2d at 300 (protection of the courts an additional purpose of
bar discipline); Wild,36l A.2d at 183 and K-leindienst,345 A.2d at 150 (need to maintain integrity of profession
is a factor in detennining rigor of discipline imposed). The latter case cites the record of Kleindienst's hearing
before the District of Columbia Board of Professional Responsibility. See generally supra note 34. Kleindiensl
excerpts a portion of the Board's reoord in which the Board identifies the traditional considerations of District of
Columbia bar discipline as: protecting the public from incompetent or unethical lawyers; deterring other lawyers
from unprofessional conduct; maintaining public confidence in the profession; and balancing the three above listed considerations against the seriousness of the impact that disciplinary action will have on the life of the punished lawyer.
[FN76], Wild,36l A.2d at 183-84 (implies that punishment is also a consideration in imposing discipline);
Kleindienst,34S A.zd at 147 (cites as a purpose of discipline deterrence by making an example of the sanctioned
lawyef.
[FN77]. Kleindienst,34S A,zd at 148.
[FN78]. Haupt,422 A,2d at 771; Smith,403 A.2d at 303.
)
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(punishment is an un[FN79]. Smtth, 403 A2d at 303: Kteindienst, 345 A.zd at 149-52 (Kelly, J,, dissenting)
is not objectionabte when not the primary purpose). ,See Char'lton v' ITC, 543 F.2d 903
(D,C. 1976) (idisbarment [is] designed to protect the public [and] is [a] punishment or penalty imposed on the
avoida-Ute purpose and
lawyer').
See, e.g., R, ARONSON & D. WECKSTEIN, PROFESSIONAL RESPONSIBILITY IN A NUTSHELL
(tSgO)
+Z
lthe purpose ofprofessional sanctions is to protect the public, not to punish the lawyer); id, at 44-45
(a purpose of tie ABA tvtodet Code of Professional Responsibility is to maintain public confidence; discipline
should be designed to prevent ftture violations rather than to punish vindictively); ld at 50-51 (discipline may
be increased in the interest of detenence of other lawyers from engaging in the same conduct; protection of the
public and of the administration of justice should determine the degree of the sanction imposed); Steele & Nimmer, Lawltsys, Clients andProfessionat Regulation,1916 AM. B, FOUND. RESEARCH J.917,999-1014 (The
current goals of bar discipline include: cleinsing the bar of unethical lawyers, detening unethical conduct, and
preserviig the profession'i public image. The authors' suggested goals of bar discipline include: setting norms
ior ptop"i ethical behavior;'managing attorney-client dispuies by setting standards, and supervising the bar administratively to shape behavior.),
The ABA'S DISCIPLINARY STANDARDS , supra note 4, although not specifically adopted by the ?itsi.t
of Columbia, are atso helpful in assessing the propei purpose of sanctions. The ABA DISCPLINARY STAND'
ARDS state that discipline should be deJigned to maintain appropriate professional conduct, .Id. at Standard I l.
Maintenance of appropriate conduct would serve the function of protecting both the public and the judicial system, The ABA D]SCPLINARY STANDARDS also srate that punishment is not a purpose of professional discipline. /d, at Standard l.l and commentary.
A slightly differenq but still valid, airn of professional sanctions was expressed by the 1908 ABA Canons of
Professional Ethics. The Canons referred to the maintenance of public confidence in the legal profession, CANONS OF PROFESSIONAL ETHICS (1908) at Preamble. See Kleindienst,345 A'2d at 150
(maintenance of the public confidence is a relevant consideration for determining bar discipline in the District of
Columbia),
[FNS0],
*J
[FN8l]. Punishment was included as a goal because it seemed impossible to remove it as a motive. See, e'g',
Wild,36l A.2d at 183-84; but see, e,g.,kleindi"nst,345 A.zd at 147 (disbarment should not be considered punishment); ABA DISCIPLINARY STANDARDS, supra note 4, at Standard 1.1 and commentary'
IFNS2],
See
supra notes 68-59 and accompanying text. This Note considers the last two alternatives together
since their practical effect is the same.
practice in federal
[FN83]. Goldberg,460 A.zd at 986 n.1, An attomey does not automatically lose his right to
supranoteT.
courtevenwhendisbanedbythehighestcourtofthestateinwhichthefederalcourtsits.See
[FN84]. See Goldberg,460 A.2d at 985,
contFN85l. The Preamble to the D,C. CODE, sulranote 70, states that the prospect of losing the respect and
fidence of fellow lawyers and society as a whole is the 'ultimate.sanction' for a lawyer,
lFN86l. Goldberg,460 A.2d
at 986.
vol[FN87]. ./d. In reality, Goldberg's withdrawal from practice in the District of Columbia was not essentially
untary, since he waiunderthe impression that such withdrawal was mandated by Maryland law. Id. MD. ANN.
I
o
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,
33 CATHULR. I165
Rev. l 165
33 Cath ll.
I
Page 17
l
lili:;:.
;ii"1 iil,
ii'"i"i8lll,.Yee
6l
$|
(1q?6);
Op.
Atl!
ili.i:3t] 3ar Counsel's
6l O;. Afl'y fi;':
,
,'
;, r *7fii.
Gen,43 (Md. 197{1
Response
to Sugge;ilr,, il':,,i Rcciproqal Disi::],1;ll, l*'Suspension be Imprsed
i,,'ely, /n re Berger, No. M- 125-82 (D.C. l9S;
l,
r
B,etroast' r:,
Arg, 10, i982,'l'hr.di:tger brief was liled.on.\ov, 8' i98i'
frrl'l1iuj. riai'Clounsel's G*ldberg brief was fiic;j
b;,r Counsel's Spppleme*al Memorandum,.fr re 5erger,No. M-125.i; (D.C, 1982). Berger had been lusp9nrie*j frcrn the practlc* of lsw in Arizona f(,t st:, ,:r',r tis, ftorn Dec. .' iv$l i.hrcrlgh June 7, 1982, far charging
r, ?ci 209, 210 r r' ,\r,j: Div..1982). An identical.concurr:cess:ve fres In re Berger, 87 A.D.2d 92,.':,'
,t
:.
1'l .lghi, Id, rii j,:i.,i:-iii, The District of Columbia eourt of
ii;rri-:;iirlernion was inipised by New Yo"k;,,r
.,rrp1r iliri rpeciiically foilOwed Gptdberg il: im;r*t;: ,E uiior- Berger an r..rrrrl.i,.;al concun€nt suspension. In re Ber'
-ltsprniion hc., ilre District of {lr:lumbia Bar from treu,
i,ii, l.,i:, tii-;:S-3Z'P.C.Apr. I, i98:I{iu,-rer'ir;r;,.,.iir,;,
,.,ri
i,
lilll
[rN9
ll.
through June 7, 1982).
Se.e
wganote 4]i and accompanyine ttvr
58?
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33 CATHULR I I65
33 Cath. U, L. Rev. 1 I65
(punishment is an untFN7gl. Smith, 403 Azd at 303; Kteindienst, 345 A.Zd at 149-52 (Kelly, J., dissenting)
FTC, 543 F'2d 903
v.
Charltorr
purpose).
See
avoida-ble purpose and is not objectionable when not the primary
(D.C. 1976) (idisbarment [is] designed to protect the public [and] is [a] punishment or penalty imposed on the
Iawyer').
IN A NUTSHELL
tFNSOl, See, e.g., R. ARONSON & D, WECKSTEIN, PROFESSIONAL RESPONSIBILITY
qZ Odgq (the purpose ofprofessional sanctions is to protectrthe public, not to punish the lawyer); id' at 44'45
(a purpoie of tire ABA Uodel CoAe of Professional Responsibility is to maintain public confidence; discipline
iloulA be designed to prevent future violations rather than to punish vindictively); id, at 50-51 (discipline may
be increased in the interest of detenence of other lawyers fiom engaging in the same conduct; protection of the
public and of the adminishation of justice should determine the degree of the sanction imposed); Steele & Nimmer, Law)ters, Clienrs andProfessiznal Regulation, 1976 AM. B, FOUND. RESEARCH J.917,999-10.l4 (The
current goals of bar discipline include: cleinsing the bar of unethical lawyers, detening unethical conduct, and
preserving the profession'i public image. The authors' suggested goals of bar discipline include: setting norms
ior ptopi ethical behavior,'managing-attorney-client dispuies by setting standards, and supervlsing the bar administratively to shape behavior.).
The ABA'S DISOPLINARY STANDARDS, supra note 4, although not specifically adopted by the Piqict
of Columbia, are atso helpful in assessing the propei purpose of sanctions. The ABA DISCPLINARY STAND'
ARDS state ihat disciplini should be designed to-mainta-in appropriate professional conduct. 1d' at Standard I I'
Maintenance of appropriate conduct would serve the function of protecting both the public and the judicial sysrem, The ABA DISCIPLINARY STANDARDS also state that punishment is not a purpose of professional discipline. /d, at Standard l.l and commentary,
A slightly different, but still valid, airn of professionalsanctions was expressed by the 1908. ABA Canons of
Professional Ethics. The Canons referred to the maintenance of public confidence in the legal profession, CANONS OF PROFESSIONAL ETHICS (1908) at Preamble. See Kleindienst,345 A'2d at 150
(maintenance of the public confidence is a relevant consideration for determining bar discipline in the District of
Columbia).
'
,-)
e.g"
tFNSl]. Punishment was included as a goal 'beoause it seemed impossible to remove it as a motive. See,
punbe
considered
not
(disbarment
should
Wild,l6t A2dar 183-84; but see, e.g.,kleindi"nst,345 A.zd at 147
ishment); ABA DISCIPLINARY STANDARDS, supra note 4, at Standard 1,1 and commentary'
lFN82].
See
supra notes 68.59 and accompanying text, This Note considers the last two alternatives together
since their practical effect is the same.
to practice in federal
[FN83], Goldberg,460 A,Zd at 986 n.l. An attomey does not automatically lose his right
court wen when disbaned by the highest court of the itate in which the federal court sits, See supra note l.
[FN84]. See Aodberg,460 A,2d at 985,
losing the respect and conIFNS51. The Preamble to the D.C. CODE, ,u)ro note 70, states that the prospect of
fidence of fellow lawyers and society as a whole is the 'ultimate.sanction' for a lawyer'
lFN86l. Coldherg,460 A,2d at986.
not essentially vollFN$7l. /d. In reality, Goldb,erg's withdrawal fi'om practice in the District of Columbia was
Id. MD. ANN'
law'
by
Maryland
mandated
was
such
withdrawal
that
he
waiunderthe''lmpression
,ntury, since
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coDE, art. t0, $ | (1976);61 op, Art'y Gen,43 (Md,
lFN88l,
,9ee
6l
of20
1976).
Op. Att'y Gen, 43 (Md.1976),
tFN89], Bar Counsel's Response to Suggestion that Reciprocal Discipline of Suspension be Imposed Retroact-
ively,ln reBerger,No,
M-125-82 (D.C. 1982).
8,1982.
tFN90l, Bar Counsel's Goldberg brief was filed on Aug, 10, 1982. The Berger brief was filed.on-Nov.
Supplemental Mimorandum,ln reBerg.er, No. M-125-82 (D.C. 1982). Berger had been suspended from the practice of law in Arizona for six months, from Dec, 7, l98l through June 7, 1982, for charging
excessive fees. /r re Berger, 87 A.D.2d92,450 N,Y.S.2d 209,210 0{.Y.App.Div. 1982). An identical concur'
rent suspension was imp6sed by New York on May 17,1982. Id, at2}9-rc, The District of Columbia Court of
bar Counsel's
Appeafs specifically fotiowed &aldberg in irnposing upon Berger an identical concurrent suspension. In re Bergdt, Uo. N -IZS-SZ-(O.C, Apr. l, 1983I(order'impoiing suspension fiom the District of Columbia Bar from Dec,
'1,1971 through june 7, 1982).
[FN9 | ]. See ntpra note 43 and accompanying text.
RetroacttFN92]. Bar Counsel's Response to Suggestion that Reciprocal Discipline of Suspension be Imposed
ively, supra note 89, at
8.
lFNe3l. /d.
,[D]uring the period between the entry date of tJre order and its effective date [the disciplined attorney]
ruy *ln,i up una complete, on behalf of any client, all matters which were pending on the enfiry date.' D.C.
BAR RULES , supra norc 6,' at g l9(3). See 7A C.LS. Attorney & Client $ 120 nn,85, 87 and accompanying text
(1 9S0 & Supp. 1983) (disciplined attorney must make arrangements to have clients' work continued).
[FN94].
Retroact[FN95]. Bar Counsel's Response to Suggestion that Reciprocal Discipline of Suspension be Imposed
ively , supra note 89, at 2.
[FN96]. Coldberg,460 A,zd at 985;
See
supra notes 55-55 and accompanying text,
a great
lFN97]. Jurisdictions such as Maryland and the District of Columbia are economically interdependent to
and
volunMaryland
in
jurisdictions.
suspended
An attomey who is
i.gtee, Many lawyers have clienti in both
notito
required
be
period
time
would
of
same
for
the
practice
of
Columbia
frbm
in
the
Districi
tarily withdraws
suspension
Maryland
If,
after
the
94.
note
See
sup'a
his
withdrawal.
of
his
clients
in
the
District
of
Colurnbia
fi
had run its course, the attorney were forced to call the clients again because a second suspension had been imposed upon the lawyer nonretroactively in the District of Columbia, they might believe that the attomey had
committed additional disciplinary violations,
[FN98]. SeeD.C. CODE, supranole 70 atpreamble.
[FN99], See ntpra notes 40-42, 63 and accompanying text,
IFN I 00], See supra notes 9-14, 63 and accompanying text.
IFNl0l], D.C. BAR RULES, suprqnote
6, at
$ l8(5Xa), Ses text of rule, ntpranote9'
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33 CATHULR II65
33 Cath. U, L. Rev, I 165
IFNl02], /d, at $ l8(5Xb), Seetext ofrule, supranote 10.
[FNl 03],
/d
at $ 1 8(5)(c). See text ofrule, supra note 72.
[FN I 04]. /d, at $ 1 8(5)(d).
[fNl05]. /d.
,See
text ofrule, supr"a nots
13
at $ 18(5)(e). Seetext ofrule, supranote 14
tFNl06l. As previously noted, for practical purposes, the MARYLAND CODE OF PROFESSIONAL RESPONS]BILITY iS idENtiCAI tO thc DISTRICT OF COLUMBIA CODE OF PROFESSIONAL RESPONSIBILITY, See supra note26.
IFNf 0?], Section lS(sXc) excepts identical reciprocal. discipline which would result in a grave injustice, See
supra note 12 and accompanying text. Section l8(5Xd) excepts identical reciprocal discipline when the misconduct elsewhere wanants a substantially different sanction in the District of Columbia. See supra note l3 and accompanying text. In Goldberg, the court applied $$ l8(5Xc) and (d) of Rule XI of the D,C. BAR RULES to determine whether the circumstances surrounding Goldberg's suspension in Maryland and his averred withdrawal
fiom practice for the same period of time in the Dishict of Columbia warranted the application of identical discipline in the District, 46A A,Zd at 985.
IFN I 081. Gotdherg, 460 A.Zd at 984.
[FNl09]. Ootdberg,460 A.zd at 985-86. The court noted there were no findings by the District of Columbia
Board on Professional Responsibility as to whether Goldberg voluntarily refrained from practice in the Dishict
of Columbia during his Maryland suspension, and remanded for such a finding in order that the appropriate
sanction be imposed, Id. The court also indicated that harsher discipline would be appropriate if Goldberg had
not promptly notified the District of Columbia Bar Counsel of his Maryland discipline. Id, at985.
IFNI l0l. Id. aL985-86, SeeD.C.BAR RULES, supranote6, at $ 18(5)(d),
IFN I I l], Goldberg, 460 A2d at 985-86. See D,C, BAR RULES , supra note 6, at $ 18(5Xc). The court also cited
g l8(5xd) to hold open the possibility of applying different discipline in ftture cases in which the original jurisdiction considers appropriate substantially different discipline than does the Dishict of Columbia. 460 A.2d at985.
[FNl l2]. Goldberg,460 A.}dal985.
lFNil3l.1d.
fFNr r4l. /d.
lFNr r5l, /d.
See, e.g., In reHaupt,522 A,zd768,771(D.C. l9S0) (disregard for clients was an aggravating factor);
In re Dedrnan, 17 Cal. 3d 229, 550 P,2d 1040, 1042-43, l30 Cal. Rptr. 504, (1976) (effotts to ensure
IFNll6].
see also
that violations would cease, good behavior before and since disciplinary action, and the seeking of psychiatric
treatment were mitigating factors); ln re Kaufn'ran, 81 N,J. 300, 406 A.2d 9'12,9'i3 (1979) (failure to settle accounts ofneglected clients, even after suspension in the original jurisdiction, was an aggt"vatingfactor); In re
)
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33 CATHULR I165
33 Cath. U. L, Rev. 1165
Page 19
.._")
Ritger, 80 N,J. 1,401 A.2d 1094,1095 (1979) (lack of contrition and failure to reimburse wronged parties were
aggravating factors; prior unblemished record, making' full restitution and agrcement to future employment only
with proper supervision were mitigating factors); In re Miller,68 A.D.2d 544,418 N,Y.S.2d 69 (N.Y, App, Div.
1979) (74 years of age, long blameless service record, complete restitution, and aftorney's already serving a suspension to which time was added were mitigating factors); see also 7 AM, JUR, 2D AttornEts at Law $ 52 ( 1980
& Supp, 1983) (mitigating factors are to be considered in deciding the severity of the sanction to be imposed);
7A C.J.S. Attorney & Client $$ ll6(a) n.79-91,116(b) (1980 & Supp. 1983); Annot.,95 A.L.R.3d 724 (1979 &.
Supp. 1983) (restitution to client of misappropriated funds is a mitigating factor); Annot,, 93 A.L.R,3d 1061,
l09l (1979 & Supp. 1983) (delay in prosecution of disciplinary proceeding is a mitigating factor); Annot., 96
A.L,R.2d 739 (1964) (mental disturbance at the time of lawyer's unethical conduct is mitigating factor).
IFN I l7]. See supra noles 6l-64, 109 and accompanying text:, see also
Wa
note 118.
IFNl l8]. The traditionally recognized mitigating and aggravating factors considered in imposing bar discipline
are listed in the ABA DISCIPLINARY STANDARDS, supra note 4, at Standard 7.1 and commentary, The
Standards state that:
The respondent's lack of remorse, his failure to cooperate with the . , . investigation, his failure to
voluntarily make [sic] restitution to those injured by his misconduct, his failure to acknowledge and recognize the seriousness of his violation . . , and his record of prior discipline, are factors which have been
viewed as'aggravating' . .
..
, . . A willingness to rectiry the damage caused by the misconduct, contrition, inexperience, temporary mental abenations for which the respondent has sought treatrnent, and restitution prior to the filing of
a grievance, have been relied upon by courts as mitigating factors wananting lesser discipline.
/d Prior to the District of Columbia court hearing, Goldberg had allegedly replaced his secretary, restored
the funds to the escrow account, and otherwise attempted to rectifl his dealings with slients. Maryland v. Goldberg,44l A.2d at 339,341,342. Goldberg had fully cooperated with the District of Columbia authorities and
had refrained voluntarily from practice in the District, Goldberg, 460 A,2d at 984,986, He had acknowledged
his violation and shown contrition, Id * 984; Maryland v, Goldberg, 441 A.zd ai 339,342, He was found to
have been unawafe of his secretary's activities until he caught and fired her. His past record was good in that he
had always been considered competent prior to this proceeding, and Maryland Bar Counsel had recommended
that his punishment be limited to a reprimand, Maryland v. Goldberg, 441 A,zdat339,342, Nothing appeared in
the record which reasonably could have been considered to be an aggravating factor, Therefore, it appears that
the Cistrict of Columbia Court of Appeals would not be justified in imposing a second suspension in the District,
a sanction too harsh to be called identical discipline. See Golclberg,460 A.Zd at985.
On remand, the District of Columbia Board on Professional Responsibility recornmended a concurrent reciprocal suspension, The District of Columbia Court of Appeals ordered the suspension recommended by the
Board. 1n re Goldberg, No, M-l l7-S2 (D.C, Mar. 30, 1983) (order suspending Goldberg fi'om practice for 30
days nunc pro tunc to run concurrently with suspension in Maryland, March2l to April 24, 1982),
IFN I f9]. See supranote 8l and accompanying text,
L. Rev, I165
33 Cath. U.
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7/212009
Memo
To:
ELC Drafting Task Force
From: Randy Beitel
Date: October 26, 2009
RE:
Diversity Language in Title 2
Subcommittee A has asked that I draft this memo to explain the issues that have arisen
related to proposed changes in the diversity language in Title 2 of the ELC.
Since 1997, first the RLD and then the ELC have included the following language related to the appointment of hearing officers:
In making appointments, the Board of Governors should consider diversity
in gender, ethnicity, geography, and practice experience.
RLD 2.5(a); ELC 2.5(d). In a similar fashion, virtually identical language has been in effect since 1997 for Adjunct Investigative Counsel, formerly known as Special District
Counsel. RLD 2.7(a); ELC 2.9(a). This particular language was proposed to the Joint
Task Force on Lawyer Discipline in 1994 by Justice C. Z. Smith.
In ODC’s proposed changes we have proposed changing the ELC 3.5(d) language regarding hearing officers as follows:
In making appointments, the Board of Governors should consider diversity
Diversity in gender, ethnicity, geography, and practice experience should
be considered in making appointments.
Task Force Materials 297.1 We have proposed changing the ELC 2.9(a) language regarding Adjunct Investigative Counsel in a similar fashion:
In appointing adjunct investigativedisciplinary counsel, the Board of Governors should consider diversity in gender, ethnicity, geography, and practice experience should be considered.
Task Force Materials 300. These changes are not intended to make substantive
changes to the diversity statement, but merely to disconnect the language about who
makes the appointments from the substantive diversity language, which is needed to
1
The ODC proposal at 297 contains a typo to this particular language. An inadvertent “Executive Director” appears after the words “Board of Governors.”
- 592 -
Memo re: Diversity Language in Title 2
October 26, 2009
Page 593
implement the directive of the Board of Governors to have the Supreme Court appoint
hearing officers based on the recommendation of the Board of Governors, rather than
having the Board of Governors make the appointments. See BOG Minutes at Task
Force Materials 472, and further discussion of the ODC proposal at Task Force Materials 292.
Subcommittee A has discussed changing the substantive diversity language to:
Diversity in gender, ethnicity, including geography, and practice experience, should be considered in making appointments.
ODC recommends against this change. While we believe that the concept of diversity
always includes gender and ethnicity, deleting the words “gender” and “ethnicity” from
the diversity statement may be seen as a diminished commitment to such diversity.
Given the WSBA’s strong commitment to diversity, ODC believes that before any
change is proposed to the diversity statements in the ELC, we should consult with the
Board of Governors as the Bylaws [Sec. I(A)(6)] currently state that the WSBA “strives
to . . . Promote diversity and equality in the courts, the legal profession, and the bar.”
Unless there is a clear organizational consensus for a specific change, we recommend
leaving the substantive diversity language alone, or at most, proposing a nonsubstantive restructuring of the language to:
Diversity, including diversity in gender, ethnicity, geography, and practice
experience, should be considered in making appointments.
The Subcommittee discussed that if we continue the specific listing of diversity characteristics, we may want to include a number of others such as sexual orientation. The
Subcommittee also discussed that perhaps just using the term “diversity” is more inclusive than language that specifically lists the diversity characteristics. The Subcommittee
also discussed that we should look at whether the current efforts to revise the WSBA
Bylaws are proposing any change to diversity the language, to make sure that the language is consistent. Having come to no conclusion on this issue, the Subcommittee determined that we should seek guidance from the Task Force on this issue.
- 593 -
Recommended for Consent Calendar Treatment from Subcommittee A
ELC
Page in the Materials
1.2
pp. 285–286
2.2(a)
p. 286A
2.2(b)
pp. 535–536
2.2(c)
pp. 537–538
2.2(d) [new]
p. 539
2.5(c) [deleted]
p. 539
2.7(b)
p. 539–540
2.3 & 2.7(a)
pp. 292–294
2.3(k)
p. 290
2.6
p. 298
2.8
p. 541
2.9(c)
p. 301
3.1(b)(8)
p. 303
3.2(a)
p. 305 (but not the 3.4 proposal)
3.2(f)
p. 304 (but not the 3.4(a) proposal)
3.3(b)
p. 309
3.3(c)
p. 308, 310, 374 (but not as to the Title 6 proposal)
3.5(b)(3)
p. 322
3.6(b)
p. 323
4.1(b)(1)(B)
p. 326
4.1(b)(3)(B)(ii)
p. 542–543
4.8
p. 329
4.9
pp. 330–331
8.2(c)(6), 8.3(d)(7),
8.4, & 8.8(g)
pp. 491–493
8.2(c)(1) & 8.3(d)(1) p. 494
8.7
p. 497
8.8(f)
p. 500
8.9(d)
p. 351 (not as to ELC 5.1(c)(3)(A) or 5.4(b))
10.8
p. 339
10.10
p. 340
10.11
pp. 544–545
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