Opinion for the Court by Senior Judge Reilly. Concurring opinion by Associate Judge Farrell.
The opinion of the court was delivered by: Reilly
On Report and Recommendation of the Board on Professional Responsibility
REILLY, Senior Judge : Having been notified that respondent, Pearson, recently disbarred from practice in Maryland by the Court of Appeals of that state, is also a member of the bar of this jurisdiction, the Board on Professional Responsibility, after reviewing the Maryland proceedings has recommended that our court should order him disbarred in the District of Columbia -- a recommendation also supported in a statement to the Board by Bar Counsel. As the ground for disbarrment had nothing to do with any act which occurred in the District, our Disposition of such recommendation is governed by D.C. Bar R. XI, § 11, entitled "Reciprocal discipline."
In its report, the Board stated that although given an opportunity to respond to Bar Counsel, respondent never did so. The record discloses that he neither entered an appearance nor filed any brief when the report was referred to this court. Thus in its present posture the case before us is uncontested. Section 11 (c) requires that "reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence " that certain enumerated exceptions apply to his case. (Emphasis supplied.) *fn1 As this subsection places the burden of proof in defending against an identical sanction upon the lawyer affected, it seems to suggest that in the absence of any defense, this court must automatically apply whatever discipline had been imposed elsewhere. See In re Trilling, No. 88-256 (D.C. March 8, 1989), citing In re Sinclair, 517 A.2d 309 (D.C. 1986).
We have some difficulty in applying this rule to the instant case, however, for our opinion in both those cases noted that the respondent lawyers were aware of the reciprocal proceedings here, but elected not to present any defense. In contrast, the record certified to us does not conclusively establish that the respondent here was ever actually served with notice of the proceedings against him in this jurisdiction. *fn2 Therefore, we have decided to examine the record of the disciplinary court to determine whether the imposition of identical discipline is in order, for another provision in the rules -- not easy to reconcile with subsection (c), set forth in note 1, (supra) authorizes this court, sua sponte, to make such a determination. We refer to subsection (f) which reads:
The Court shall impose the identical discipline unless 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 or more of the grounds set forth in subsection (b) of this section exists. If the Court determines that the identical discipline should not be imposed, it shall enter such order as it deems appropriate, including referral of the matter to the Board for its further consideration and recommendation. [Emphasis supplied.]
In view of our holding in In re Williams, 464 A.2d 115 (D.C. 1983), we are concerned, as was Bar Counsel and the Board itself, as to whether the final action of the Maryland Court of Appeals was based on evidence of wrongdoing or was simply an affirmation of a default judgment. As its opinion reveals on its face that the latter was precisely what that court did, we reject the crucial findings and recommendation of our Board.
From the Maryland record we glean these undisputed facts: Respondent Pearson, a Maryland practitioner, and his wife, Lois Garrison, the parents of adult sons, were divorced in 1984 in Anne Arundel County. The divorce decree approved a settlement of all items of marital property, with one exception, viz., a parcel of improved land in Berkeley County, West Virginia, purchased in 1977, and jointly owned by husband and wife. In 1988, the husband -- who had moved to Georgia and was married to another woman (Gloria) -- arranged for a Berkeley County real estate broker to list the land for sale. About three months later, one Alice Lyons, who needed a place to live in this particular vicinity, submitted a bid of $20,000 which was accepted. A power of attorney was drafted by a settlement attorney, a disclaimer of mechanics liens, and a deed conveying the property to the purchaser was forwarded to Pearson in Georgia. These documents required notarization by both owners. Lois Pearson did not come to Georgia to sign these instruments, but Pearson representing to the notary public that he was authorized to do so, signed his former wife's name as well as his own to these documents. *fn3
With these instruments in his possession, David Pill, the designated settlement attorney, arranged for closing on July 13, 1988. Neither owner was present. The check for $20,000 from Alice Lyons was received and cashed, $13,000 of which was used to pay off the balance of a mortgage note held by a local bank. This enabled the settlement attorney to convey the land to Ms. Lyons free and clear of encumbrances, and to draw and send a check to Pearson in the amount of $7,000, the net proceeds of the sale. *fn4 On the very next day, the settlement attorney having been told by Lois Pearson that the signature on the instruments was not hers, notified both the purchaser and the mortgagee that the sale was invalid. Pearson, confronted with this situation, agreed that all proceeds of the sale should go to his former wife. She and Pearson then executed corrective instruments which gave the purchaser clear title. A new check, drawn by Pill, representing all the proceeds due the sellers, designated Lois G. Pearson as the sole payee and was posted to her.
Pearson's troubles with the disciplinary authorities in Maryland began when Lois Pearson filed a complaint against him. He was then summoned to appear before an inquiry panel, "Attorney Grievance Commission." Pearson admitted the facts previously summarized, but testified that far from forging his former wife's signature in order to defraud her, that it was she who had insisted that the jointly held land be sold, and that because she was living in Maryland and he in Georgia at the time, she instructed him to affix her signature to whatever documents were essential to effectuate a sale. *fn5 Acting upon this authorization, he secured notarization of the instruments and posted them back to the settlement attorney. His adult son -- a Maryland police officer -- called as a witness, supported his father's testimony stating that in his presence his mother had indeed requested her former husband to do what he did.
According to Pearson's brief (filed in the Maryland Court of Appeals), he told the panel that he kept Lois Pearson informed overall and by mail of the progress of the sales negotiations and the preparation of the necessary instruments, and that she never expressed disagreement with any of his actions. He presented copies of his letters to support his version of the incident. He also testified that after the closing, he received a telephone call from Curtis J. Karpel, attorney for Lois Pearson, who told him, "Al, we got you by the balls. . . ." Pearson responded by saying that he had permission to sign her name, whereupon his caller retorted that Pearson had nothing in writing from her, and that it would cost him $40,000 to have the transaction affirmed. Pearson refused and hung up the phone. Karpel then called back and said that unless Pearson would send him $30,000, he would advise his client to file a complaint. Accusing them of extortion, Pearson again turned down Karpel's proposition. In subsequent negotiations, Pearson offered to settle the matter by authorizing Karpel to direct Pill to draw a check in favor of Lois Pearson (after she had executed the corrective instruments) for all the proceeds received by the sellers. Pearson's second wife, who had overheard Karpel's calls to their home in Georgia, corroborated Pearson's testimony about the attempted extortion. *fn6
In its report recommending that charges be filed against Pearson, the inquiry panel made no attempt to resolve the conflict of testimony between the complainant and respondent. It deemed Pearson's admission that he had caused a notary public in Georgia to acknowledge the signature of Lois G. Pearson to an enumerated series of documents on occasions when she was not present and did not personally appear before the notary as sufficient to warrant findings that respondent had thereby violated D.C. Bar R. 8.4 (a)(b)(c) and (d). It characterized such conduct as a "criminal act," "a representation amounting to dishonesty and deceit," and "prejudice to the ...