January 24, 1992
IN RE: PHILLIP J. GUENZER, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS
On Report and Recommendation of the Board on Professional Responsibility.
Before Ferren and Farrell, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: In this reciprocal discipline proceeding, the Board on Professional Responsibility has recommended that respondent be disbarred retroactively to December 3, 1990. Bar Counsel supports the Board's recommendation, and respondent has filed no submission with the court. For the reasons stated by the Board in its Report and Recommendation, appended hereto, it is
ORDERED that Phillip J. Guenzer be and hereby is disbarred from the practice of law in the District of Columbia effective, retroactively, to December 3, 1990.
DISTRICT OF COLUMBIA COURT OF APPEALS
BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of PHILLIP J. GUENZER, Respondent.
Board Docket No. 475-90
REPORT AND RECOMMENDATION
This matter is before the Board on Professional Responsibility pursuant to an Order of the District of Columbia Court of Appeals suspending Respondent and directing the Board to determine whether reciprocal discipline should be imposed.
Respondent was disbarred by the Maryland Court of Appeals on December 3, 1990, for 7 client related matters and for his failure to file federal and state income tax returns over a 4 year period. The client related matters include one case in which Respondent neglected his client's personal injury case by allowing the statute of limitations to run without filing suit and by failing to associate himself with a Delaware attorney (Respondent was not a member of the Delaware bar). In 5 separate matters, Respondent collected excessive fees in Social Security Administration matters, either by charging fees directly to the clients which, separately or together with fees awarded by the Social Security Administration, exceeded the amount the Social Security Administration had approved or, in several cases, by withholding fees from Social Security payments to his clients without his clients' authorization or the approval of the Social security Administration. As a result of those cases, Respondent was prohibited from practicing before the Social Security Administration. In the seventh case, a worker's compensation matter, Respondent neglected the case by failing to live up to an agreement to protect a lien on his client's recovery asserted by the worker's compensation insurance carrier.
With respect to the tax matters, Respondent simply failed to file federal and state income tax returns for the years 1982 through 1986 and he failed to withhold and pay the required social security and unemployment taxes with regard to payroll at his law firm.
The Maryland Court of Appeals concluded that the facts had been proven in the trial court, that Respondent's conduct involved misappropriation, neglect, failure to represent a client zealously, failure to disclose facts related to the case on numerous occasions, and "other incidents of an unethical and unprofessional behavior". The Court also concluded that Respondent's conduct involved moral turpitude with "no compelling evidence of extenuating circumstances to excuse the behavior."
Under Rule XI, Section 11(c), reciprocal discipline is to be imposed unless the Respondent demonstrates by clear and convincing evidence that (1) the procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not consistently with its duty, accept as final the Conclusion on that subject; (3) the imposition the same discipline by the Court would result in grave inJustice; (4) the misconduct established warrrants substantially different discipline in the District of Columbia; or (5) the misconduct elsewhere does not constitute misconduct in the District of Columbia.
Bar Counsel urges that none of these exceptions apply in this case and that reciprocal discipline of disbarrment should be ordered. Respondent has not opposed the entry of an Order of reciprocal discipline.
We agree with Bar Counsel and believe that reciprocal discipline is appropriate. Although several of the acts for which Respondent was disciplined would not, standing alone, justify disbarment, Respondent engaged in several incidents of intentional misappropriation. Those acts, either standing by themselves or coupled with the other misconduct, clearly warrant disbarment. In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). Accordingly, the Board recommends that Respondent be disbarred and his disbarrment be retroactive to December 3, 1990. *fn1
BOARD ON PROFESSIONAL RESPONSIBILITY
By: Jeffrey Freund
Date: July 8, 1991
All members of the Board concur in this Report and Recommendation except Mr. Cohen, Ms. Kaiser, and Mr. Wiliams, who did not participate.