A Member of the Bar of the District of Columbia Court of Appeals. On Report and Recommendation of the Board on Professional Responsibility.
Before Wagner And King, Associate Judges, and Reilly, Senior Judge. Opinion for the court by Associate Judge King. Concurring opinion by Senior Judge Reilly
The opinion of the court was delivered by: King
KING, Associate Judge: Respondent, a member of the bars of New Jersey and the District of Columbia, was issued a public reprimand by the Supreme Court of New Jersey, and ordered to be subject to a one-year proctorship on July 20, 1990, for his neglect of four separate clients during his representation of them in real estate matters over a two year period. The proceeding comes before this court from the Board of Professional Responsibility (the Board) as a reciprocal discipline case. The Board concluded that the violations found by the Supreme Court of New Jersey are equivalent to or substantially similar to violations of DR 6-101(A)(3) (neglect), DR 9-103 (B) (inappropriate maintaining of a trust account), DR 1-102 (A) (4) (dishonesty, fraud, deceit, or misrepresentation), and DR 7-101 (intentional failure to seek lawful objectives of client). With the exception of one member who did not participate, the Board recommends a four-month suspension, a substantially different discipline from that imposed by the Supreme Court of New Jersey. The Board report is attached as an appendix. Respondent has filed no objection to this recommendation.
In his statement to the Board, Bar Counsel noted that a suspension of at least three months would normally be the sanction in a case such as this, however, he concluded that certain mitigating factors considered by the New Jersey Supreme Court justified imposition of reciprocal discipline, i.e., reprimand subject to one year proctorship (which is equivalent of probation under our system). Bar Counsel has filed no further pleadings in this matter in this court.
We are in general agreement *fn1 with the Board's analysis of the conduct that constituted the violations and its determination of the corresponding rule violations in this jurisdiction. In reciprocal discipline cases the Bar rules provide that the court shall impose identical discipline unless it clearly finds that any one of five factors *fn2 has been demonstrated. Four of the factors are not applicable, however, the Board concluded that the fifth was, i.e., that the misconduct warranted substantially different discipline in this court. We agree with that Conclusion.
This court has on several occasions imposed different and more severe discipline from that imposed by the other jurisdictions when we have concluded that the misconduct warranted the more severe sanction. In In re Brickle, 521 A.2d 271 (D.C. 1987), respondent was appointed to administer an estate in Virginia. After it was found that he had forged the co-administrator's signature on checks, resulting in the misappropriation of funds, respondent's resignation from the Bar was accepted by the Supreme Court of Virginia. We concluded that the conduct warranted disbarrment and since that sanction was substantially different from that imposed in Virginia, reciprocal discipline was not imposed. Id. at 273. Similarly, in In re Larsen, 589 A.2d 400 (D.C. 1991), we declined to impose reciprocal discipline when respondent was found to have misappropriated client funds. Id. Maryland imposed an indefinite suspension. Our authorities, however, call for disbarrment for such conduct, and we agreed with the Board's recommendation that that sanction be imposed. *fn3 Id. at 401; accord, In re Reid, 540 A.2d 754 (D.C. 1988).
In In re Garner, 576 A.2d 1356 (D.C. 1990), we set forth the standards applicable to recommendations of substantially different discipline. Garner requires that the Board consider whether the discipline of the foreign jurisdiction is within the range of sanctions that would be imposed for the same misconduct in the District of Columbia. Id. at 1357. Applying Garner, the Board determined that the discipline ordinarily imposed in this jurisdiction for respondent's misconduct is a suspension of from two to six months. In re Santana, 583 A.2d 1011 (D.C. 1990) (two-month suspension for neglecting matters for two clients); In re Rebach, 513 A.2d (D.C. 1986) (en banc) (six-month suspension for neglect of a matter and subsequent filing of complaint with forged, notarized signature). Bar Counsel agrees, noting that a suspension of at least three months would ordinarily be the sanction under these circumstances.
Respondent's misconduct reflected a pattern of behavior involving four separate clients. In some instances the neglect continued for as long as two years, and in two cases was compounded by deceit and misrepresentation. Therefore, we agree that the misconduct in question called for a suspension of the duration found by the Board. *fn4 The question then becomes: Is a suspension for a period of between two and six months a substantially different sanction than a reprimand with some period of probation? We hold that it is.
Although we have never previously addressed this issue, we conclude that suspension is a different level of punishment and a significantly more severe sanction than a reprimand with probation. Cf. Brickle, supra at 273 (disbarment substantially different from voluntary resignation); Larsen, supra, 589 A.2d at 400 (disbarment substantially different from indefinite suspension). Our rules provide that a reprimand is the fourth most severe sanction after disbarment, suspension, and censure by the court. D.C. Bar R. XI, Section 3(a). *fn5
During a period of suspension an attorney must close down his practice of law. Clients with immediate needs must be referred to others and little or no income can be expected. On the other hand, with the lesser sanction the attorney would be free to practice without significant restriction. Thus, we conclude that a suspension is a substantially different sanction than a reprimand with probation, that respondent's conduct warrants a suspension, and that as a result, reciprocal discipline should not be imposed.
The only question remaining is whether factors presented by the respondent as mitigating would justify a sanction less than that recommended by the Board. We note that the New Jersey Disciplinary Review Board (DRB) (essentially the equivalent of our Board on Professional Responsibility) itself recommended a three-month suspension and found that the factors offered in mitigation were not persuasive. The New Jersey Supreme Court disagreed with the DRB as did Bar Counsel, and each justified a sanction of reprimand and proctorship because of that mitigation. The Board, however, was unimpressed with the so-called mitigating factors and we are as well.
The factors in mitigation considered by the New Jersey Supreme Court were: (1) respondent has now gotten his practice in order, and (2) he was under some pressure from his clients. The pressure complained of resulted principally from the fact that respondent maintained his office in his home and that he had informed his clients of his wife's place of employment. As a result his clients made demands on him day and night and his wife was subjected to calls from them at her work place. To remedy these problems respondent has relocated his office to a place outside of his residence. We are unpersuaded that the sanction should be reduced for those reasons. Respondent created the situation, subjected himself to the pressure, and did nothing with respect to those clients to alleviate it for a period of at least two years. Respondent should not benefit from his own failings.
Bar Counsel, in urging consideration of this pressure as a mitigating factor, relies upon In re Peek, 565 A.2d 627 (D.C. 1989). In Peek, counsel in one case (as opposed to four cases for respondent), neglected a legal matter entrusted to him, failed to seek the client's lawful objectives, and engaged in conduct involving misrepresentation. The Board's initial Conclusion was to recommend a four-month suspension; however, it agreed to suspend two of the four months with a two year period of probation because of significant psychiatric evidence that counsel was suffering from severe depression which directly affected his representation in the case for which he was being sanctioned. That is a very different case than the one presented by respondent's circumstances. The pressure facing him came from his clients calling him at his home and calling his wife at work. The calls were prompted by respondent's neglect of the legal matters entrusted to him, and his failure to respond to his clients' legitimate inquiries about their legal concerns. Respondent created the circumstances which induced the pressure from his clients. Indeed the pressure came after his neglect, deceit and misrepresentation, and we do not believe that the fact he might have been affected by the demands of his clients justifies reducing the sanction for his misconduct to a reprimand.
In sum, we agree with both the Board and Bar Counsel that a period of suspension of six months or less is ordinarily warranted by the conduct found here. We are also satisfied that a suspension of that duration is substantially different from a reprimand since during that period of suspension respondent would be unable to practice law at all in this jurisdiction. Finally, although some mitigating factors were presented to and accepted by the New Jersey Supreme Court we are unpersuaded that those factors are sufficient to justify imposing a sanction that is substantially more lenient than would ordinarily have been imposed.
Accordingly, it is ORDERED that respondent, John J. Mahoney, is suspended from the practice of law in the District of Columbia for a period of four months, effective thirty days from the date of this Order.