A Member of the Bar of the District of Columbia Court of Appeals
Before Ferren, Terry, And Farrell, Associate Judges.
The opinion of the court was delivered by: Per Curiam
On report and Recommendation of the Board on Professional Responsibility
PER CURIAM: This reciprocal discipline matter is before the court on the recommendation of the Board on Professional Responsibility that we publicly censure respondent for violating Disciplinary Rules 6-101 (A) (3) (neglecting legal matter) and 1-102 (A) (5) (engaging in conduct prejudicial to administration of Justice). *fn1 We conclude that public censure is an appropriate sanction under the mitigating circumstances of this case.
On February 1, 1989, the United States Court of Appeals for the Fourth Circuit suspended respondent from practice before that court for twelve months and fined him $1,000 for failure to comply with the Federal Rules of Appellate Procedure and the Fourth Circuit's internal operating procedures and instructions. In re James W. Robertson, No. 88-9516 (4th Cir. 1989) (unpublished order). The court ordered the suspension and fine after respondent had filed notices of appeal in three cases in the first half of 1988 but then failed to prosecute them or even respond to the court's directives and inquiries about those cases. Before the court issued the order, respondent had failed to respond to a show cause order. See Report and Recommendation of the Board on Professional Responsibility, attached as appendix.
We first note that our rule governing reciprocal discipline applies to disciplinary actions taken by "any court of the United States as defined in Title 28, Section 451 of the United States Code, the highest court of any state . . . and any other agency or tribunal with authority to disbar or suspend an attorney from the practice of law in any state, territory, or possession of the United States." D.C. Bar R. XI, § 11 (a). In turn, 28 U.S.C. § 451 (1968 & 1992 Supp.) defines "court of the United States" to include "the Supreme Court of the United States, courts of appeals, district courts." We therefore conclude that the Fourth Circuit's suspension of respondent falls within our reciprocal discipline provisions. See In re Solerwitz, 575 A.2d 287 (D.C. 1990); In re Evans, 533 A.2d 243 (D.C. 1987).
D.C. Bar R. XI, § 11 (c) provides, inter alia :
Reciprocal discipline shall be imposed unless the attorney demonstrates by clear and convincing evidence, that:
(3) The imposition of the same discipline by the Court would result in grave inJustice;. . . .
In this case, Bar Counsel, the Hearing Committee, and the Board each have recommended public censure, rather than any harsher reciprocal discipline, citing the mitigating factor of respondent's deteriorating health over the relevant time period. Because respondent did not respond to the Fourth Circuit's show cause order, it did not have an opportunity to consider this factor before it imposed the one year suspension. The Board also notes, however, that respondent has been informally admonished twice before for unrelated ethical violations.
We agree with the Board that public censure is within the range of sanctions this court has previously ordered in similar cases. See e.g., In re Jones, 521 A.2d 1119 (D.C. 1986) (after two prior unrelated informal admonitions, respondent publicly censured for neglecting legal matter and engaging in conduct prejudicial to administration of Justice); In re Thompson, 478 A.2d 1061 (D.C. 1984) (after one prior informal admonition for same type of violation, respondent publicly censured for neglecting legal matter and engaging in conduct prejudicial to administration of Justice).
We observe that the highest state courts regulate the practice of law in the states which constitute the territorial jurisdiction of the United States Court of Appeals for the Fourth Circuit. Thus, the federal appeals court was limited to suspending respondent from the practice of law before that court only. This differs from an action by a state supreme court, which would ordinarily impose suspension from the practice of law throughout the state, not just before a particular court. On the other hand, when a federal court censures, rather than suspends, a lawyer, the consequence is not much, if any, different from a censure by the state's highest court.
Therefore, any "reciprocal" discipline we impose must take into account any difference, in kind or scope, between discipline imposed in the federal jurisdiction and the disciplinary sanctions available in our own "state" jurisdiction. For example, our disciplinary rules do not include fines as a permissible sanction. See D.C. Bar R. XI, § 3. The Board therefore did not and could not consider such reciprocal discipline in this case, even though the Fourth Circuit imposed a $1,000 fine. See also In re Solerwitz, 575 A.2d at 292 (ordering public censure rather than one year suspension as imposed by United States Court of Appeals for the Federal Circuit); In re Evans, 533 A.2d at 244-45 (ordering public censure rather than disbarrment as imposed by federal district court).
Because of mitigating factors, found by the Board, we conclude that public censure is the appropriate and just sanction in this case. See D.C. Bar R. XI, § 11 (c) (3); see also In re Thompson, 478 A.2d at 1064 (review of recommended sanction must be done with deference to Board's sense of equity).
ORDERED that James W. Robertson is hereby ...