A Member of the Bar of the District of Columbia Court of Appeals. On the Report and Recommendation of the Board on Professional Responsibility.
Before Schwelb, Farrell and King, Associate Judges
The opinion of the court was delivered by: Per Curiam
PER CURIAM: In this reciprocal discipline case, the Board on Professional Responsibility, with one member Dissenting, has proposed that this court publicly reprimand the respondent, William L. Muckelroy, Esq., for attempting to collect legal fees from an indigent client whom he had been assigned to represent. A public reprimand was previously issued by the Supreme Court of New Jersey.
In its Report and Recommendation, *fn1 the Board noted that in the absence of serious infirmities in the New Jersey proceedings, D.C. App. R. XI, § 11 (c) requires us to impose reciprocal discipline unless the respondent shows by clear and convincing evidence either that the misconduct in New Jersey would warrant substantially different discipline in the District of Columbia, or that reciprocal discipline would result in a grave inJustice. See In re Loigman, 582 A.2d 1202 (D.C. 1990). The Board found that respondent has made neither showing. No exceptions were filed in this court, and our scope of review is limited. See D.C. App. R. XI, § 9 (g). Although the Dissenting opinion is not without force, we agree, substantially for the reasons stated in the Board's majority opinion, that reciprocal discipline should be imposed.
In fairness to respondent, we note that on August 7, 1991, an order was erroneously entered by this court suspending him from the practice of law in the District of Columbia pending final Disposition of this proceeding. There was no legal basis for suspending respondent, see D.C. Bar Rule XI § 11 (d), and the suspension was vacated on August 21, 1991, by order of this court. Respondent advised us at argument that the erroneous suspension received substantial publicity. This unfortunate error does not, however, affect our obligation to impose reciprocal discipline in the circumstances of this case. Accordingly, it is hereby
ORDERED that respondent William L. Muckelroy is hereby publicly reprimanded for disciplinary violations committed by him in the State of New Jersey.
Report and Recommendation of the Board on Professional Responsibility
This is a reciprocal discipline case. Respondent is a member of the Bar of the State of New Jersey. On January 16, 1991, the Supreme Court of New Jersey ordered that Respondent be publicly reprimanded based on its determination that he had violated DR 1-102(A)(4), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and DR 1-102(A)(5), engaging in conduct that is prejudicial to the administration of Justice.1a The genesis of these charges was Respondent's attempt to collect legal fees from an indigent whom he was assigned to represent. By order dated August 7, 1991, the District of Columbia Court of Appeals suspended Respondent and ordered him to show cause why reciprocal discipline should not be imposed. In entering this order, the Court of Appeals was apparently under the misapprehension that Respondent had been suspended by the Supreme Court of New Jersey. The Court of Appeals amended its order on August 21, 1991, reinstating Respondent nunc pro tunc to August 7, 1991. The portion of the August 7 order requiring Respondent to show cause remained in effect.
The Decision and Recommendation of the Disciplinary Review Board in New Jersey, which was adopted by the Supreme Court of New Jersey, found that in August 1983, Respondent was assigned by a municipal court to represent Arthur McCloud, an indigent, in a non-indictable, criminal offense. The order appointing Respondent stated "there are no counsel fees UNDER THIS." Respondent sent McCloud a letter with a promissory note for him to sign evidencing his indebtedness to Respondent for legal fees in the amount of $1,500. Although the letter indicated that the purpose of the note was to secure McCloud's obligation to pay legal fees in the event he was no longer indigent in the future, the note itself contained no such condition and was to become due in 31 days. McCloud refused to sign the note.
In October 1983, at a Municipal Court appearance, Respondent, through an associate, again requested that McCloud sign a promissory note. McCloud again refused. Even though McCloud never signed the note, in October 1984, Respondent caused a collection agency to contact McCloud in an effort to collect the $1,500 allegedly owed to Respondent in legal fees. When the collection agency contacted McCloud in order to collect the bill, McCloud sought to have the matter submitted to fee arbitration. Respondent presented a case before the Fee Arbitration Board, but the Board referred the matter to the Ethics Committee in light of a rule of the Supreme Court of New Jersey prohibiting any attempt to collect fees in a case where an attorney is assigned to represent an indigent. New Jersey Rules of Practice R. 1:13-2(b).
Respondent admitted violating the rule, but claimed he had not known it existed and thus had inadvertently violated it. Although Respondent admitted that he knew at the time that he sent the note that McCloud was indigent and that Respondent had been assigned the case because of McCloud's indigence, Respondent argued that he had a good faith belief that he was entitled to a fee should McCloud somehow become able to make payments at a later date.
The Board in New Jersey found that there was clear and convincing evidence that Respondent violated DR 1-102(A)(4) and (5). At a minimum, the Board found that Respondent's letter to McCloud accompanying the promissory note was misleading and deceptive to the client. It was also in direct conflict with the rule against collecting fees from an indigent. In response to Respondent's claim that he was unaware that the rule existed, the Board cited the familiar rubric that ignorance of the law is no defense. It also noted that printed on the first page of the court order appointing Respondent was an admonition that there were to be no legal fees. In mitigation, the Board noted that Respondent was a patent attorney, who had only recently started a private practice and had never handled an indigent assignment or a criminal case before the McCloud matter. The Board concluded that a public reprimand was the appropriate discipline. The New Jersey Supreme Court agreed with the Disciplinary Review Board and entered an order reprimanding Respondent.
Under D.C. App. R. XI, Section 11(c), a determination by a disciplining court in another jurisdiction that a respondent has engaged in misconduct conclusively establishes the misconduct for the purpose of a reciprocal disciplinary proceeding in the District of Columbia unless the respondent demonstrates by clear and convincing evidence that the disciplinary proceeding in the other jurisdiction was lacking in due process, that the proof used to establish misconduct in that procedure was insufficient, or that the misconduct in the other jurisdiction would not constitute misconduct here. In this case, Respondent does not make any of these claims; therefore, we must accept the Supreme Court of New Jersey's determination that Respondent committed misconduct.
Section 11(c) further requires us to impose reciprocal discipline unless Respondent demonstrates by clear and convincing evidence that his case falls within one of five exceptions to this requirement. Respondent argues that his case falls within two of these exceptions: 1) where reciprocal discipline would result in a grave inJustice and 2) where the misconduct in the other jurisdiction would warrant substantially different discipline in the District of Columbia. Therefore, Respondent requests that reciprocal discipline not be imposed and that no additional sanction be imposed. *fn2
In support of this position, Respondent argues before us, as he did in New Jersey, that his ignorance of the rule against attempting to collect legal fees from an indigent and his inexperience in are extenuating circumstances that mitigate against another public reprimand. Respondent denies that he ever received a copy of the order appointing him as counsel and directing that no fees be paid for his services. Respondent believes that the order was either sent to another lawyer with a similar name or sent to his address of record with the court, where he no longer resided.
Additionally, Respondent now introduces an argument that he did not make before the New Jersey Board. Respondent claims that he learned during the course of representing McCloud that McCloud was not actually indigent but had lied to the court in order to obtain an appointed lawyer. Respondent believed that he could not disclose this to the court, however, without violating the attorney-client privilege. It was under these circumstances that he told McCloud that he expected McCloud to pay for Respondent's services if it turned out that he was not indigent. Respondent again cites his inexperience in , explaining that he did not know then, but has since been advised, that the appropriate procedure would have been to seek permission to withdraw for reasons of a confidential nature which, if disclosed, might be prejudicial to his client. *fn3
Bar Counsel argues that Respondent's misconduct would not warrant substantially different discipline here and that reciprocal discipline should be imposed. Bar Counsel does not address Respondent's argument that the imposition of a public reprimand would result in grave inJustice.
The test for determining whether misconduct in another jurisdiction would warrant substantially the same discipline in the District of Columbia is set forth in In re Garner, 576 A.2d 1356, 1357 (D.C. 1990). The central inquiry under this test is whether the discipline imposed by the other jurisdiction is within the range of sanctions that would be imposed here. Id.
Respondent does not cite any cases in support of his contention that public reprimand is not within the range of sanctions for violation of DR 1-102(A)(4) and (5). Bar Counsel argues that Respondent's misconduct would be punished by public censure, citing two cases in which this sanction was imposed for violations of, respectively, DR 1-102(A)(4) and DR 1-102(A)(5). With respect to DR 1-102(A) (4), Bar Counsel cites In re Hadzi-Antich, 497 A.2d 1062 (D.C. 1985), where the respondent was censured for misrepresenting his academic credentials on an employment resume. In that case, the respondent claimed, as Respondent does here, that the misrepresentation was made negligently. *fn4 Id. at 1064. Public censure was also imposed as discipline for violating DR 1-102(A)(4) in In re Christmas, M-21-76 (D.C. June 2, 1976), where the respondent intentionally misrepresented to his clients the status of their appeals from convictions for assault. There, the court stated that public censure is the minimum sanction to be imposed for intentional misrepresentation. Id., slip op. at 3. As Hadzi-Antich and Christmas demonstrate, public censure would be within the range of sanctions imposed in the District of Columbia for Respondent's misconduct whether Respondent negligently misrepresented the terms of the promissory note to McCloud, as Respondent claims he did, or made the misrepresentation intentionally.
It is less clear that public censure is within the range of sanctions for Respondent's violation of DR 1-102(A)(5). Where public censure has been imposed for violation of this rule, there has been a pattern of conduct prejudicial to the administration of Justice, rather than a single instance of such conduct as there is in this case. In the case Bar Counsel cites, In re Solerwitz, 575 A.2d 287 (D.C. 1990), censure was imposed on an attorney who had filed "a series of frivolous appeals, repeatedly violating court orders, and consistently failing to follow appropriate procedural rules." Id. at 288 (emphasis added). Similarly, in In re Bush, D.P. 22-75 (D.C. July 26, 1977), the court censured an attorney who, having been appointed to represent an indigent defendant, failed to file an appeal and to comply with numerous court orders and directives to do so, including an order to show cause why he should not be adjudicated in contempt.
In a case where there was only a single instance of conduct prejudicial to the administration of Justice, informal admonition, rather than censure was imposed. That case, In re Confidential , D.N. 235-78 (Bd. Pro. Resp. November 29, 1979), involved an attorney who procured a notary's attestation to an affidavit although the notary had not been present at the time the affidavit was signed. In light of the attorney's otherwise impressive representation of his client, the fact that the client suffered no prejudice as a result of the misconduct, and the trend toward using declarations signed under penalty of perjury rather than affidavits, the Board declined to adopt the Hearing Committee's recommendation that public censure be imposed. Id., slip op. at 5. The facts of this case lie somewhere in between the pattern of repeated violations presented in Solerwitz and Bush and the single, more innocuous violation presented in In re Confidential. For this reason, it is unclear whether public censure would be warranted by Respondent's violation of DR 1-102(A)(5) if that were the only violation. *fn5
Our Dissenting colleague argues that had Respondent committed these same violations in the District of Columbia, the appropriate sanction would be reprimand by the Board. He believes that a reprimand by the Board is significantly less onerous than a reprimand by the Court and that, therefore, Respondent's misconduct would warrant substantially different discipline in this jurisdiction. As noted before, the rule in this jurisdiction is that identical discipline is to be imposed unless the respondent demonstrates by clear and convincing evidence that substantially different discipline would be warranted in the District of Columbia. D.C. App. R. XI, Section 11(c). We do not believe that the cases cited by our Dissenting colleague establish by clear and convincing evidence that different discipline would be imposed in this jurisdiction.
Our Dissenting colleague argues that in cases in which the misconduct was equal to or greater than the misconduct engaged in by Respondent, a lesser sanction than public censure was imposed. He argues further that in the cases in which public reprimand by the Court or public censure has been imposed, the misconduct was of considerably greater magnitude than the misconduct engaged in by Respondent. In taking this position, our colleague has essentially adopted Respondent's view of the facts. He writes that McCloud "claimed to be indigent" and that Respondent transmitted the promissory note to McCloud because McCloud apparently lied to the court about his indigence. Aside from Respondent's assertions to us, the record contains no such information. Certainly the New Jersey Disciplinary Review Board never found these claims to be true. Our colleague also concludes that the letter transmitting the note to McCloud "was not misleading or deceptive," but the New Jersey Disciplinary Board, which unlike us heard evidence, reached a different Conclusion. Our colleague also accepts Respondent's explanation in the papers filed with us that he never received the court order informing him that he was not to seek fees from his client. Once again, no such findings were made in New Jersey. All of these "facts" lead our colleague to conclude that "Respondent is at most 'guilty' of inadvertently violating a rule. . . ." But New Jersey made no finding that Respondent's violation was inadvertent; rather, it said only that even if the violation were inadvertent because of Respondent's ignorance, that was no excuse. Our Dissenting colleague's analysis of the appropriate sanction is colored by his belief that Respondent has accurately characterized his conduct, but the record does not establish that the New Jersey Disciplinary Board accepted Respondent's characterization.
We also note that there is no case precisely on point. We find it difficult to compare the misconduct in these various cases. For example, in In re Manning, D.N. 355-88 (Bd. Pro. Resp. March 15, 1990), we reprimanded a respondent who failed to deliver promptly to the client the client's property. Specifically, the respondent in that case had failed, probably because he had misplaced them, to return to a client important documents. The absence of these documents prejudiced and inconvenienced the client. Our Dissenting colleague argues that this conduct is more serious and egregious than the conduct of Respondent in trying to collect a debt, not owed to him, by fraudulent or dishonest methods. But there is no absolute measure of misconduct. While the misconduct in Manning may strike our colleague as more egregious, it is equally possible to argue that attempting to take advantage of an indigent, in defiance of court rules and orders, and through dishonest means, is equally egregious. Comparing misconduct arising out of different sets of facts, resulting in the violation of different rules, is not a precise exercise. At bottom, there is an inherent element of subjectivity. We cannot say that our colleague has established by clear and convincing evidence that a sanction lesser than public reprimand by the Court would be imposed in this jurisdiction. Accordingly, following the operation of the Court's rule, we must impose identical discipline.
Respondent has failed to persuade us that his misconduct would warrant substantially different discipline here than that imposed in New Jersey. We agree with Bar Counsel that the punishment imposed on Respondent by New Jersey, public reprimand by the court, is similar to, certainly within the range of, the likely sanction in the District of Columbia, public censure by the court.
Respondent has also failed to present clear and convincing evidence to support his claim that the imposition of reciprocal discipline would result in grave inJustice. Respondent argues that it would be unjust to impose reciprocal discipline in light of his ignorance of the rule against collecting fees from an indigent and his lack of experience in . There is no finding in this record that Respondent's conduct was a result of ignorance. Even if there were, the Court of Appeals has repeatedly rejected this line of argument. In In re Loigman, 582 A.2d 1202 (D.C. 1990), the Court imposed reciprocal discipline despite the respondent's argument that he should not be punished for errors made in the early years of his career. Similarly, in In re Harrison, 461 A.2d 1034 (D.C. 1983), the Court stated that "practitioners in the District are subject to this jurisdiction's code of professional ethics whether or not they are aware of each prohibition." Id. at 1036, n.3. Moreover, even assuming Respondent's ignorance of the court rules and of the court's order, he offers no explanation as to why he contracted with a collection agency to collect a debt from a client who had refused on two occasions to assume responsibility for paying for Respondent's services. *fn6
In a case where the court held that grave inJustice would result from the imposition of reciprocal discipline, this Conclusion was based on the court's finding that the punishment imposed by the other jurisdiction was reserved for much more serious misconduct here. In In re Evans, 533 A.2d 243 (D.C. 1987), the Court declined to disbar the respondent in accordance with the punishment meted out by a federal district court for accusing a magistrate of incompetence and bias. Stating that there was "a gross disparity" between the case at hand and cases in which the Court had disbarred attorneys, the Court censured the respondent instead. Id. at 244. In this case, however, there is no such disparity. As discussed above in connection with Respondent's claim that his conduct would warrant substantially different discipline here, public censure has been used in a number of cases in the District of Columbia to punish attorneys for misrepresentation and conduct prejudicial to the administration of Justice.
Our Dissenting colleague argues that imposition of reciprocal discipline would result in a grave inJustice because the misconduct in question occurred more than eight years ago. He further argues that the record does not disclose that Respondent was responsible for this delay. We note, first, that there is no statute of limitations with respect to disciplinary violations. Perhaps there should be, but the Court has not seen fit to establish one. Moreover, although the record does not disclose that this delay was the fault of Respondent, neither does it disclose that it was not his fault. Respondent has not established the reason for the delay or that a grave inJustice would result from the imposition of reciprocal discipline in this case. Although we can foresee instances in which delay might result in a grave inJustice -- such as, for example, a situation in which because of delay unattributable to a Respondent, evidence disappeared and witnesses were not longer available -- this is not that case. Without some sort of affirmative showing of prejudice, in the absence of any statute of limitations, we cannot conclude that because of unexplained delay alone, a grave inJustice would result from the imposition of reciprocal discipline in this case. Additionally, whatever the reason for the delay in New Jersey, there has been no delay in this jurisdiction.
Because Respondent has failed to show that his misconduct would warrant substantially different discipline here than in New Jersey and because he has failed to show that reciprocal discipline would result in grave inJustice, we recommend that reciprocal discipline be imposed in this case for violations of DR 1-102(A) (4) and (5), in accordance with the order of the Supreme Court of New Jersey, dated January 16, 1991. Under D.C. App. R. XI, Section 11(f), the discipline imposed on Respondent must be identical to that imposed in New Jersey. Although normally public ...