Before Terry and Schwelb, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Terry. Dissenting opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Terry
On Report and Recommendation of the Board on Professional Responsibility
TERRY, Associate Judge: Respondent, James W. Robertson, is a member of the bar of this court. In June 1991 a three-Judge panel of the United States District Court for the District of Columbia unanimously ruled that on December 11, 1989, Robertson had violated this court's Disciplinary Rule ("DR") 1-102 (A)(4). *fn1 After the filing of further pleadings, the same panel suspended for six months Robertson's privilege of applying for admission to the bar of the United States District Court or for permission to appear in that court pro hac vice. On April 22, 1992, after receiving a certified copy of the District Court's order, this court suspended Robertson from the practice of law in the District of Columbia and ordered him to show cause before the Board of Professional Responsibility ("the Board") why the identical disciplinary sanction should not be imposed. *fn2
Robertson argued to the Board that because he was "subjected to a hearing [by the District Court] which was substantially lacking in meaningful due process," a hearing was necessary. On the issue of sanctions, Robertson argued that "a more appropriate proportional equivalent would be public reprimand . . . some form of community service, such as being required to handle a number of cases pro bono, or teaching a series of professional responsibility seminars for the bar." The Board concluded that there was no need for a de novo hearing and recommended a thirty-day suspension nunc pro tunc as of April 22, 1992, the date of this court's temporary suspension order. We agree with the Board's decision not to hold a de novo hearing, but we reject its recommendation of a thirty-day suspension and impose instead a six-month suspension, which Bar Counsel originally sought before the Board, and which we deem to be the closest possible sanction to that imposed by the District Court.
Robertson, who is not a member of the District Court bar, appeared pro hac vice in that court to represent the principal defendant, Rayful Edmond, III, in a highly publicized criminal trial. Before and during the trial, the United States Marshals' Service maintained very strict security in and around the United States Court House, and Edmond himself was housed at a secret location several miles away, not at the District of Columbia Jail. After the trial began, the trial Judge relaxed to some extent the security surrounding Edmond so that family members might visit him in the courthouse cellblock. Soon thereafter, however, the Marshals' Service concluded that these visits were disruptive, terminated the privilege of visits from family members, and informed the trial Judge that visitation must be limited to attorneys and court personnel. Although there was no written order to this effect, Deputy Marshal Floyd Johnson told Robertson that only attorneys and court officials would thenceforth be admitted to the cellblock to see Mr. Edmond.
After Edmond was found guilty on several charges, Mr. Robertson told Elsa Walsh, a Washington Post reporter who had asked him several times during trial for permission to interview his client, that she could now speak with Edmond while he was in the cellblock. Mr. Edmond had previously requested that Robertson be present during his pre-sentence interview with a probation officer, and it was to this meeting on December 11 that Robertson invited Ms. Walsh. At the entrance to the cellblock, as a Deputy Marshal looked on, Robertson signed the log book for himself, Ms. Walsh, and the probation officer, Gregory Hunt. He wrote his own name and both of their names in the book, and next to Ms. Walsh's name he wrote the abbreviation "Atty."
After Mr. Hunt had completed his interview *fn3 and left the cellblock, Ms. Walsh began her questioning of Mr. Edmond. When she finished, she left the cellblock and went over to the log book to sign herself out. When she did so, she noticed for the first time that Mr. Robertson had put the designation "Atty" next to her name. She scratched it out and entered "Reporter Wash. Post" in its place. Moments later, after Mr. Robertson came out of the cellblock, Ms. Walsh asked him why he had signed her in as "Atty." He replied that it must have been "a mistake." The next day Ms. Walsh contacted the Marshal's Office to explain and apologize for the error. In her article based on the interview with Edmond, she wrote the following:
A reporter interviewed Edmond with Robertson's permission, and after the interviewer identified herself to Edmond as a Washington Post reporter.
After the interview, the reporter noticed that Robertson, who signed her into the cellblock's logbook, had not identified her as a reporter in the logbook. When the reporter noticed that as she was leaving the area, the reporter corrected it and notified the U.S. Marshal's office of the error.
The District Court panel of Judges found as a fact, by clear and convincing evidence, that Robertson had "misled [the probation officer and the Deputy Marshals] into believing that Walsh was an attorney or his assistant entitled to admission to the cellblock for the purpose of representing Edmond during the Probation Officer's interview and deliberately concealed from them the fact that she was a newspaper reporter." Although the panel found that the Deputy Marshals at the cellblock did not rely on Robertson's false entry in the log book in admitting Ms. Walsh, it also ruled that this entry was "further evidence" of his deliberate failure to identify Ms. Walsh as a reporter "when well knew that if he identified her correctly, she would he refused admission." The panel of Judges concluded that Robertson's "misrepresentation of Walsh as an attorney or his legal assistant and dishonest concealment of the fact that she was a newspaper reporter" violated DR 1-102 (A)(4).
The choice of sanctions in a reciprocal discipline case is governed by Rule XI, § 11 (c), of this court's Rules Governing the Bar. ...