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08/04/92 MARK H. ZILBERBERG RESPONDENT

DISTRICT OF COLUMBIA COURT OF APPEALS


August 4, 1992

IN RE: MARK H. ZILBERBERG, RESPONDENT

A Member of the Bar of the District of Columbia Court of Appeals

Before Rogers, Chief Judge, and Terry and Steadman, Associate Judges. Opinion for the court by Associate Judge Terry. Opinion by Associate Judge Steadman, Dissenting in part.

The opinion of the court was delivered by: Terry

On Report and Recommendation of the Board on Professional Responsibility

TERRY, Associate Judge: On January 5, 1987, respondent Zilberberg, an attorney, was suspended from the practice of law in the state of Virginia for three years. The Virginia State Bar Disciplinary Board found that Mr. Zilberberg had violated Virginia Disciplinary Rules 1-102 (conduct involving dishonesty, fraud, deceit, or misrepresentation), 9-102 (commingling, failure to notify client promptly of receipt of funds, and failure to pay client such funds promptly on request), and 9-103 (failure to maintain detailed records of client funds). *fn1 After the District of Columbia Bar Counsel forwarded a certified copy of the Virginia State Bar order to this court, we suspended Mr. Zilberberg from the practice of law in this jurisdiction and ordered him to show cause before the Board of Professional Responsibility ("the Board") why identical discipline should not be imposed. The Board recommended that Mr. Zilberberg be disbarred nunc pro tunc as of January 5, 1987. We reject the Board's recommendation and instead suspend Mr. Zilberberg for three years, nunc pro tunc as of that date.

I

The facts underlying Mr. Zilberberg's suspension in Virginia are summarized in the order of the Virginia State Bar Disciplinary Board ("the Virginia Board"). The suspension arose from his representation of Julia Brown in a personal injury case. In May 1985, shortly after Mr. Zilberberg had left private practice and gone to work as an attorney for a government agency, he received a $2500 settlement check from an insurance company in full settlement of Mrs. Brown's claim against its insured. One-third of this check constituted Zilberberg's fee. At that time he did not have a separate trust account for client funds related to his private practice, *fn2 so he deposited this check in his personal checking account. At the time of the Virginia disciplinary hearing in December 1986, he had "no current records of when the check was received or deposited." *fn3 In addition, during the weeks immediately following his receipt of the settlement check, Mr. Zilberberg misrepresented to his client, Mrs. Brown, the status of her case and the date on which he had received the check.

On June 14, 1985, Mr. Zilberberg wrote a check for $1633.66 to Mrs. Brown, her share of the settlement proceeds, which he asked her not to deposit for several days. When eventually she did deposit it, the check was dishonored for insufficient funds. At the time Mr. Zilberberg wrote this check, his checking account balance was $301.65. Finally, on July 8, Mr. Zilberberg delivered to Mrs. Brown a certified check for the full amount due. Some time thereafter he paid Mrs. Brown an additional $130 to cover her travel expenses when she came to Washington on June 14 to pick up the check that later bounced.

Although Mr. Zilberberg does not dispute these facts -- indeed, he stipulated to them in the Virginia proceeding -- he urges before this court, as he did before the Board, that there were mitigating circumstances. He points out that these events took place not only while he was closing his private practice but also during a period of great personal stress, when he was going through a divorce and, at the same time, losing his eyesight to cataracts. *fn4 Furthermore, he has since moved to Florida and in recent years has provided many unpaid hours of legal assistance to indigent clients on a pro bono, no-fee basis. He has received awards for some of this work from Legal Services of North Florida, has worked as a court mediator for a local Florida court, and has served as a guardian ad litem by appointment of the Florida Supreme Court. He has also retaken and passed the Multi-State Professional Responsibility Examination. He notes that he has not been previously disciplined in the District of Columbia *fn5 and has not practiced in the District of Columbia since the date of his Virginia suspension. Finally, he emphasizes that the disciplinary authorities in Florida, where he now resides and practices law, chose not to impose the same disciplinary sanction as Virginia but instead issued a public reprimand. *fn6 In these circumstances, Mr. Zilberberg contends that disbarrment is too harsh and urges us to impose a lesser sanction.

II

Under Rule XI, § 11 (c) of this court's Rules Governing the Bar, "reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence," that the case falls within one or more of five specifically enumerated exceptions. The rule thus creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction. *fn7 See In re Velasquez, 507 A.2d 145, 146-147 (D.C. 1986). In the instant case, the Board recommends disbarment, rather than a mere three-year suspension. It relies on the fourth of the five exceptions, which permits a different sanction (either greater or lesser, see In re Coury, 526 A.2d 25, 26 (D.C. 1987)) when the misconduct proven to have occurred in the foreign jurisdiction would warrant "substantially different discipline in the District of Columbia . . . ." We hold that the Board's recommendation is not supported by the record of the Virginia proceedings and hence that the presumption has not been rebutted. We therefore apply the presumption and impose the identical sanction -- a three-year suspension -- that was imposed in Virginia.

In its order of suspension, the Virginia Board made factual findings which we have summarized in part I of this opinion: that Mr. Zilberberg received the settlement check, deposited it in his own account (having no trust account at the time), misrepresented to Mrs. Brown the status of her case, kept from her the fact that he had received the check, and later gave her a check that bounced before finally delivering to her a certified check for the amount due from the settlement. The Virginia Board also found that Zilberberg had "no current records of when the check was received or deposited." Significantly lacking from the Virginia order, however, was any finding that Mr. Zilberberg's conceded misappropriation of his client's funds *fn8 was intentional or the result of anything more than mere negligence. Because this is a reciprocal proceeding, with a presumption of identical discipline, the lack of such a finding is crucial -- and, in this case, dispositive.

The Board based its recommendation of disbarrment on the fact that there was "no indication that [Zilberberg's] misappropriation was inadvertent or the result of simple negligence . . . ." Observing that in such circumstances "disbarment would be the appropriate discipline in the District of Columbia" under our decision in In re Addams, 579 A.2d 190 (D.C. 1990) (en banc), the Board concluded that Zilberberg should be disbarred. This Conclusion overlooks the fundamental difference between disciplinary proceedings originating in the District of Columbia, in which establishing whether a misappropriation was the result of "simple negligence" or something more is of singular importance, *fn9 and a reciprocal proceeding in which it is presumed that the sanction imposed here will be the same as the one imposed in the jurisdiction from which the case came. See In re Velasquez, supra, 507 A.2d at 147.

Bar Counsel argues that the Board was justified in inferring from the record of the Virginia proceedings that Mr. Zilberberg's misappropriation was intentional, and that Zilberberg should therefore be disbarred. We do not think the Board actually drew such an inference; rather, it appears that the Board merely assumed that what it saw as the Addams rule would apply automatically in a reciprocal proceeding. We hold that such an assumption is unwarranted. To apply Addams automatically to a case such as this would result in "an inconsistent Disposition involving identical conduct by the same attorney." In re Velasquez, supra, 507 A.2d at 147. Such a result is beyond the scope of the Addams opinion and clearly was not addressed by the Addams court.

The issue before us, therefore, is whether the Virginia record is sufficient to justify a greater sanction than the Virginia Board imposed -- i.e., sufficient to overcome the presumption that our sanction will be the same as Virginia's. We conclude that it is not. We hold that in a reciprocal proceeding, when a greater sanction is sought in the District of Columbia, the record must affirmatively show that a greater sanction is warranted -- as it did, for example, in In re Reid, 540 A.2d 754 (D.C. 1988), and In re Larsen, 589 A.2d 400 (D.C. 1991). If the existing record from the original disciplining jurisdiction is insufficient for that purpose, then the record must be augmented before a greater sanction may be imposed. The usual means of augmentation will probably be, we expect, a de novo hearing before a hearing committee. See D.C. Bar Rule XI, § 11 (g)(2). *fn10

In the case before us, Mr. Zilberberg's misappropriation is undisputed, but there is some doubt about whether it was intentional or merely the result of "simple negligence." The Virginia Board's findings of fact shed no light on the critical issue of whether the misappropriation was knowing and intentional or merely negligent. *fn11 We note that at the time the misconduct occurred, Mr. Zilberberg was not only going through the trauma of closing down his practice but was also undergoing a great deal of personal stress due to the simultaneous failure of his marriage and his eyesight. The presumption of identical discipline embodied in Rule XI, § 11 (c) thus requires us to give Mr. Zilberberg the benefit of the doubt and to hold that a sanction greater than that imposed in Virginia is not warranted. We emphasize that this holding is not based on any of Mr. Zilberberg's proffered mitigating circumstances, but on the failure of the Virginia record to justify a greater sanction. *fn12

We see no need to remand the case to the Board as we did in In re Brickle, 521 A.2d 271 (D.C. 1987). In Brickle an attorney resigned from the Virginia bar while misappropriation charges were pending against him, and his license to practice law was revoked. Under Virginia law, an attorney who resigns under such circumstances "is deemed to have admitted those charges." Id. at 272 (citation omitted). Our Board on Professional Responsibility recommended that the same discipline be imposed in the District of Columbia, viz., "revocation" of the attorney's license to practice law. We concluded that such revocation was "analogous to suspending respondent for an indefinite period and requiring him to demonstrate fitness before being reinstated." Id. at 273 (citation omitted). However, because "the discipline normally warranted upon proof of the misconduct alleged against respondent, i.e., disbarment, constitute a substantially different discipline from that imposed in Virginia," we remanded the case to the Board for a de novo hearing. Id. The instant case differs from Brickle in one important respect. In Brickle the record affirmatively showed that the attorney's misappropriation would have been sufficient to warrant disbarrment if it had occurred in the District of Columbia. Here, however, the record falls short of such a showing, and hence it fails to rebut the presumption that the sanction imposed in the District of Columbia will be the same as that imposed in Virginia.

The only remaining matter to be decided is the effective date of the sanction. Under In re Goldberg, 460 A.2d 982, 985 (D.C. 1983), and Board Rule 8.5 (b), a reciprocal suspension or disbarrment may be made to run concurrently with the sanction imposed elsewhere if the attorney promptly notifies Bar Counsel of that sanction and voluntarily refrains from practicing in the District of Columbia. The Board's report tells us that Mr. Zilberberg has complied with this rule by submitting an affidavit "attesting to his cessation of practice in the District of Columbia since the date of his Virginia suspension." The Board accordingly recommends that our sanction be imposed nunc pro tunc as of the effective date of the Virginia suspension. We accept that recommendation.

It is therefore ORDERED that Mark H. Zilberberg be, and hereby is, suspended from the practice of law in the District of Columbia for a period of three years, effective January 5, 1987.

STEADMAN, Associate Judge, Dissenting in part: I agree with much of Judge Terry's analysis, but take issue with the Disposition. Here, the Virginia conduct may or may not have been such as to "warrant substantially different discipline in the District of Columbia." One cannot tell with assurance from the facts related in the Virginia Board's findings, but the Board's perception that such might well be the case does not seem unwarranted. Accordingly, I would remand to the Board for further factual inquiry. I do not think that the presumption in favor of reciprocal discipline is so compelling that it applies even where the other jurisdiction's proceedings leave significant doubt as to the extent of the attorney's wrongful conduct.


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