On Report and Recommendation of the Board on Professional Responsibility
Before Wagner, Chief Judge, and Farrell and King, Associated Judges.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: This case comes before the court for the second time. Respondent, William E. Gardner, who was admitted to the bars of Virginia and the District of Columbia, was suspended from the bar of Virginia for illegal conduct which had resulted in a finding against him of guilty of possession of cocaine in the Circuit Court of Fairfax County, Virginia. In the criminal proceeding, pursuant to a first offender statute, Code of Virginia, 1950, as amended, § 18.2-251, the Virginia court first delayed imposition of sentence for one year, then dismissed the case one year later pursuant to the first offender statute. Although reinstated to the Virginia Bar, respondent was subsequently disciplined by the bar of Virginia "pursuant to a disciplinary rule that provides that illegal conduct that adversely reflects on a respondent's fitness to practice law is grounds for discipline." In re Gardner, 625 A.2d 293, 294 (D.C. 1993) (Gardner I). Upon receipt of a certified copy of Virginia's order of suspension, this court suspended respondent from the Bar of the District of Columbia pursuant to D.C. Bar R. XI, § 11 (d) pending Disposition of a reciprocal discipline proceeding and directed the Board of Professional Responsibility (the Board) to recommend whether reciprocal discipline should be imposed.
In Gardner I, the Board recommended to this court that reciprocal discipline not be imposed. 625 A.2d at 294. Although "troubled by this result," the Board was of the view that the conduct involved did not rise to the level of violating the rule of the Bar of the District of Columbia which is comparable to the rule in Virginia under which respondent was disciplined ultimately. In its first report, the Board explained its recommendation against the imposition of any discipline essentially as follows:
The Virginia disciplinary rules provide that illegal conduct that adversely reflects on a Respondent's fitness to practice law is grounds for discipline. The applicable parallel rule in the District of Columbia at the time that Respondent committed the disciplinary violation in Virginia was DR 1-102 (A)(3) which provides that a lawyer shall not "engage in illegal conduct involving moral turpitude, that adversely reflects on his fitness to practice." (Emphasis added) (sic). . . . However, consistent with our prior decisions, we find that simple possession of cocaine does not constitute conduct involving moral turpitude, and therefore, there was no violation of DR 1-102 (A)(3).
Gardner I, 625 A.2d at 296.
Nevertheless, the Board recommended that the case be referred back to Bar Counsel for any appropriate action related to respondent's failure "to report to this court his Virginia felony conviction, pursuant to D.C. Bar R. XI, § 10 (a)." Id. at 294. To avoid the inefficiency of a "piecemeal" approach to the proceedings, this court took no action on the Board's first report and recommendation. Instead, it remanded the case to the Board for consideration of this issue and to address concerns the Board had expressed that respondent's cocaine use might be more than recreational or might have affected adversely his professional performance. Id. We directed the Board to undertake de novo proceedings to address these issues and to provide further explanation for its determination that possession of cocaine is not a crime involving moral turpitude. Id. The case is now before the court upon the Second Report and Recommendation of the Board on Professional Responsibility in which it recommends respondent's suspension from the Bar. Thus, the principal issue before this court is whether the record before us supports the imposition of reciprocal discipline. We conclude that it does.
Upon remand, the chairman of the Board referred the case to Bar Counsel who investigated further. *fn1 After completing that investigation, Bar Counsel reported that he was unable to prove that respondent's use of cocaine was either more than recreational or that his prior use of the substance affected his present professional performance. Bar Counsel remained of the view that respondent's violation of the Virginia Bar rule did not constitute a violation of local Bar rules, and therefore, that reciprocal discipline was not appropriate. *fn2 Bar Counsel also took the position that respondent's technical violation of the requirement to report the finding of guilt against him in the cocaine possession case in Virginia did not warrant discipline, since the criminal case was dismissed ultimately. The Board accepted the position of Bar Counsel insofar as he found no basis for initiating proceedings to address the Board's previous concerns that respondent had engaged in more extensive misconduct involving drug use or for bringing formal charges for respondent's failure to report the criminal case against him in Virginia. Therefore, the Board proceeded to consider whether reciprocal discipline is appropriate. The Board recommended that this court impose reciprocal discipline retroactive to June 8, 1989, the date on which respondent was first suspended in Virginia, or alternatively retroactive to March 12, 1992, the date on which he was first suspended in the District of Columbia following notification of the local Bar of the proceedings in Virginia.
The applicable Bar rule provides that reciprocal discipline shall be imposed unless the attorney can show by clear and convincing evidence that the case comes within one of five specified exceptions. D.C. Bar R. XI, § 11 (c); *fn3 In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992); In re Mahoney, 602 A.2d 128, 129 (D.C. 1992); see also In re Larsen, 589 A.2d 400 (D.C. 1991). We have stated that "the rule creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." Zilberberg, 612 A.2d at 834. By its plain language, the rule places the burden of proof upon the attorney to demonstrate that the same discipline is not warranted or that some different form of discipline should be imposed. See id. at 834-35.
In this case, respondent not only declined to seek to meet the burden of showing that he fell within one of the exceptions warranting either no discipline or some other form of discipline, but he conceded at the outset that reciprocal discipline should be imposed. *fn4 When this court issued an order directing respondent to show cause why identical discipline should not be imposed in this jurisdiction, respondent replied by letter dated March 17, 1992 to the Chairman of the Board indicating that a retroactive suspension should end on September 28, 1990. *fn5
Since respondent conceded the matter, it might be reasonable to expect that the presumption in the Bar rule would operate under the circumstances to require the imposition of identical discipline. However, the rules do not preclude the Board from recommending the imposition of a lesser or a harsher sanction. In re Reid, 540 A.2d 754, 758 (D.C. 1988); see also Zilberberg, supra, 612 A.2d at 834. Moreover, it is appropriate for the Board to consider preliminarily whether any of the exceptions to D.C. Bar R. XI, § 11 (c) apply. See Reid, supra. In this case, the Board undertook the difficult task of attempting to determine on a less than adequate factual record whether respondent's conduct fell within the exception in subsection (5) to the rule, i.e., that "the misconduct elsewhere does not constitute misconduct in the District of Columbia."
In undertaking its analysis, the Board addressed first whether the finding of guilt which preceded the dismissal of appellant's criminal case implicates the provisions of D.C. Code § 11-2503 (a) (1989) which mandates disbarrment when a member of the Bar is convicted of an offense involving moral turpitude. The Board determined that since the case was dismissed in Virginia, the provision of ...