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12/18/92 MATTER EDWARD NORMAN REINER RESPONDENT

DISTRICT OF COLUMBIA COURT OF APPEALS


December 18, 1992

IN THE MATTER OF EDWARD NORMAN REINER, RESPONDENT

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

Before Terry, Steadman and King, Associate Judges.

The opinion of the court was delivered by: Per Curiam

On Report and Recommendation of the Board on Professional Responsibility

PER CURIAM: Before us are two reciprocal discipline cases involving respondent under D.C. Bar R. XI, § 11. One is Bar Docket No. 315-89, the Perlowski matter, and the other is Bar Docket No. 143-91, the Pilson matter. *fn1 In a single Report and Recommendation by the Board on Professional Responsibility covering both cases, the Board recommends that in the Perlowski matter, respondent be suspended for three years, nunc pro tunc to May 10, 1989, and that in the Pilson matter, respondent be suspended for one year, nunc pro tunc to November 18, 1988. *fn2 The Board recommends that both suspensions bear a requirement that respondent demonstrate his fitness to practice before being readmitted, pursuant to D.C. Bar R. XI, § 16. We accept the Board's recommendation.

The Board's Report is lengthy and intricate because of the procedurally complex nature of the proceedings both in the foreign jurisdiction (Virginia) and here. *fn3 However, no exceptions or opposition have been filed to the Report and Recommendation either by respondent or by Bar Counsel, see D.C. Bar R. XI, §§ 9(e), 11(e), 11(g), and no briefs have been filed. *fn4 Because of the nunc pro tunc nature of the suspensions, the practical effect of the recommendation is to render respondent eligible to apply immediately for readmission. See In re Reiner, 561 A.2d 479, 483 n.5 (D.C. 1989). A member of the Bar who is the subject of a pending disciplinary proceeding may acquiesce in a disbarrment by consent, D.C. Bar R. XI, § 12, and we see no reason why an attorney who does not file any exceptions or opposition to a disciplinary recommendation by the Board should not, as a general rule, likewise be considered as having acquiesced in effect to the proposed sanction. Cf. In re Solomon, 599 A.2d 799, 801 (D.C. 1991) ("An attorney who chooses not to participate in a disciplinary proceeding as it progresses through the system designed to protect that attorney's rights cannot reasonably expect that a presumption of prejudice will operate in the attorney's favor.")

In reciprocal discipline matters where the Board recommends that identical discipline be imposed, this Court shall impose such discipline "unless the the attorney demonstrates, or the Court finds on the face of the record on which the discipline is predicated, by clear and convincing evidence," that one of the grounds stated in the rules for not imposing such discipline exists. D.C. Bar R. XI, § 11(f)(emphasis added). Where the Board recommends a different discipline from that imposed in the foreign jurisdiction but based upon the foreign proceedings, as here, no express standard to govern this court's review of the Board's recommendation is set forth. *fn5 However, we may fairly be guided by both the foregoing standard applicable to the imposition of identical discipline and the standard by which we review Board recommendations in original disciplinary actions; viz., that we "shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommendation Disposition of the Board unless to do so would foster a tendency toward inconsistent Dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9(g). *fn6

Here, the attorney affected does not suggest that the findings of the Board are unsupported by the record or make any attempt to demonstrate that the recommended discipline is not in accord with the criteria for proceedings based upon foreign disciplinary proceedings or would foster a tendency toward inconsistency, and we find nothing on the face of the record to suggest otherwise. *fn7

Under all the circumstances of this case before us and for the reasons discussed above, we accept the recommendation of the Board. Accordingly, it is

ORDERED that respondent be suspended from the practice of law in the District of Columbia for three years, nunc pro tunc to May 10, 1989, and for one year, nunc pro tunc to November 18, 1988, with reinstatement in each case to be subject to proof of rehabilitation and the other requirements of D.C. Bar R. XI, § 16.


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