On Report and Recommendation of the Board of Professional Responsibility
Before Steadman and Sullivan, Associate Judges, and Pryor, Associate Judges.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: This reciprocal discipline case comes to us from the Board on Professional Responsibility ("the Board"), which recommended that respondent be suspended from the practice of law for nine months *fn1 after having been publicly reprimanded in Virginia for violating its disciplinary rules. Respondent seeks reversal of the Board's recommendation and requests that identical discipline be imposed against him or the matter be remanded to the Board for a de novo proceeding in the alternative. We remand to the Board for further proceedings.
Respondent's misconduct in Virginia arose from his representation of James G. Fincham in two criminal trials in which Fincham was convicted. Following a successful motion to reduce sentence, respondent filed a Notice of Appeal of Fincham's convictions. However, the respondent's failure to comply with procedural rules resulted in the dismissal of his client's appeal. Although Fincham was able to regain his right to appeal, the respondent again failed to follow the procedural rules in order to preserve his client's appellate rights and the appeal was dismissed for the second time. During a portion of the time that respondent represented Fincham, he was suspended from the practice of law in Virginia. Despite respondent's suspension, he failed to: (1) inform Fincham of his suspension, (2) notify the Court of Appeals of his suspension, and (3) withdraw as counsel. Based on these circumstances, the Eighth District Subcommittee of the Virginia State Bar ("the Subcommittee") found that respondent violated disciplinary rules 2-108 and 6-101. *fn2 The Subcommittee publicly reprimanded respondent with terms *fn3 based upon a negotiated settlement of the charges and forwarded a copy of its order to this Court.
By order, this Court directed the respondent to show cause to the Board why reciprocal discipline should not be imposed against him in the District. In addition, the Board was directed to recommend, whether, without more, reciprocal discipline should be imposed or whether it would elect to proceed de novo under D.C. Bar R. XI, § 8. Bar Counsel filed a statement with the Board which requested the imposition of reciprocal discipline against respondent with no recommendation for a greater sanction. Following this statement, the Board forwarded a letter to respondent which indicated that he had an opportunity to respond to Bar Counsel's statement. As respondent did not contest the imposition of reciprocal discipline, he did not file any pleading with the Board. In February 1993, the Board issued its Report and Recommendation in which it found that the sanction imposed by Virginia was substantially different from that which was warranted in the District, and recommended a nine-month suspension from the practice of law with a requirement that respondent prove his fitness prior to reinstatement. *fn4
Respondent contends that (1) this court lacks the authority to increase a sanction in a reciprocal discipline case; (2) he was denied due process because he was not given notice that a reciprocal discipline proceeding could result in greater discipline; and (3) respondent's psychological condition warrants remand or a suspension of the sanction.
In light of the fact that the reciprocal discipline provision set forth in Rule XI § 11 (c) was revised following our decision in In re Reid, 540 A.2d 754 (D.C. 1988) (per curiam), we find it appropriate to address the relevant amendments to this rule. The present rule provides:
(c) Standards for reciprocal discipline. *fn5
Reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that:
(1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept ...