On Review of a Report and Recommendation of the Board on Professional Responsibility.
Rogers, Chief Judge, Terry and Schwelb, Associate Judges.
The opinion of the court was delivered by: Schwelb
This case is before us for the second time. Following our decision in In re Shillaire, 549 A.2d 336 (D.C. 1988) (Shillaire I), the Board on Professional Responsibility (the Board) has recommended once again that reciprocal discipline be imposed and that Shillaire be suspended for one year commencing October 31, 1986. The Board has further suggested that Shillaire be required to furnish proof of rehabilitation as a condition of reinstatement. We adopt the Board's recommendation.
The prior history of this unfortunate case is described in detail in Shillaire I. Briefly, Shillaire was an attorney admitted to practice in Michigan and in the District when he engaged in the offensive and criminal conduct which has resulted in discipline in both jurisdictions. On March 13, 1986, he entered a plea of guilty in the United States District Court for the Eastern District of Michigan to misdemeanor violations of 18 U.S.C. § 701 (unlawful possession of Federal insignia) and 18 U.S.C. § 1512 (b) (harassment of a Federal witness). More serious felony charges against him were dismissed as part of a plea agreement.
The harassment charge arose out of an incident in which Shillaire made threatening remarks in the federal courthouse to one Daniel Adler, a former client who has an extensive criminal record, and who provided information to the Department of Justice which led to Shillaire's indictment. The prosecution also proffered an affidavit by Special Agent Justin G. Fox of the FBI alleging that Shillaire had made remarks to third parties indicating his hatred for Adler and his Disposition to do him harm or even to kill him. According to the Fox affidavit, some of the conversations in which Shillaire made these contents were secretly tape-recorded by the third parties who, unbeknownst to Shillaire, were providing information to the FBI. During the plea proceedings, Shillaire did not respond specifically to the Fox affidavit. He acknowledged to the Judge, however, that he had made statements to a third party which "could have been construed" as suggesting that Shillaire intended to inflict bodily harm upon Adler.
Following his plea and a psychiatric examination, Shillaire was placed on probation and ordered to pay restitution. As a result of his conviction, disciplinary proceedings were instituted against him in Michigan, and he was suspended from practice in that State for one year. Under the terms of the Michigan disciplinary order, Shillaire was required to reapply for admission before being permitted to practice again.
Disciplinary proceedings were also instituted against Shillaire in the District of Columbia. Following his conviction, this court suspended him from practice pending further investigation, and the matter was referred to the Board in conformity with In re Colson, 412 A.2d 1160 (D.C. 1979) (en banc), for a determination whether Shillaire's crimes involved moral turpitude. The Board, in turn, referred the matter to a Hearing Committee.
Before the Committee, the case was presented on stipulated facts. Bar Counsel did not present the Fox affidavit, and Shillaire did not testify. Both Bar Counsel and Shillaire recommended the imposition of reciprocal discipline, and Bar Counsel made no claim that the harassment offense involved moral turpitude. The Hearing Committee nevertheless concluded, in what we described as a "thoughtful and comprehensive opinion," Shillaire I, supra, 549 A.2d at 341, that the harassment offense involved moral turpitude. If that finding had been upheld, it would of course have required disbarment. Colson, supra, 412 A.2d at 1164. On review of the Committee's determination, the Board concluded that the limited record before it
does not support a finding, by clear and convincing evidence, that Respondent possessed either the intent to prevent Mr. Adler from testifying or the intent that his remarks to third parties be communicated to Mr. Adler.
The Board therefore recommended that reciprocal discipline be imposed, and that Shillaire be suspended from practice for one year on terms similar to those ordered in Michigan.
Neither Bar Counsel nor Shillaire submitted any opposition to the Board's original Report and Recommendation. This court, however, remanded the case for further proceedings. We held, inter alia, that it was error for the Board not to consider the contents of the Fox affidavit. Shillaire I, supra, 549 A.2d at 343-45. We also expressed the view that on the limited record before the Board, the evidence of moral turpitude was "formidable." Id. at 346. We concluded as follows:
Although it is frankly difficult for us to discern how, on the basis of the record as a whole as it now stands, a finding of no moral turpitude could be sustained, we nevertheless think it appropriate to give the Board another opportunity to assess the evidence in conformity with the legal principles which we have expounded here. Accordingly, we remand the case to ...