On Report and Recommendation of the Board on Professional Responsibility
Before Ferren and Schwelb, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB Associate Judge: In this reciprocal disciplinary proceeding against respondent George J. Goldsborough, a member of our Bar since 1953, the Board on Professional Responsibility has recommended that this court suspend Goldsborough from practice for two years and that we condition reinstatement upon proof of fitness. No exceptions to the Board's Report and Recommendation having been filed, we impose the discipline proposed by the Board.
The facts of this unusual case are set forth in detail in the opinion of the Maryland Court of Appeals, Attorney Grievance Comm'n of Md. v. Goldsborough, 330 Md. 342, 624 A.2d 503 (Md. 1993) (Goldsborough I). Briefly, on two separate occasions in 1978, Goldsborough pulled the initial complainant, an adult female client, over his knee, chastised her for being a "bad girl," and spanked her lightly on the buttocks.
Several years later, this complainant heard that Goldsborough was continuing to engage in similar conduct and reported her experiences to the Maryland disciplinary authorities. The ensuing investigation revealed that Goldsborough had behaved in this manner towards other women as well. Specifically, a second client related that Goldsborough had put his arm around her and kissed her on the neck and cheek; the woman reproved him and retained other counsel. Goldsborough's former secretary, who was seventeen years old when she began working for him, testified that over a period of almost two years, Goldsborough regularly spanked her for typing errors and other "no brains," and that he sometimes required her to bare her buttocks for the spanking.
In sworn testimony before a Circuit Judge to whom the case had been referred by the Maryland Court of Appeals, Goldsborough denied most of the allegations against him. He also provided misleading information to Maryland Bar Counsel. *fn1 The Judge found by clear and convincing evidence that Goldsborough was "deliberately untruthful" in his testimony. Goldsborough I, 624 A.2d at 508. He concluded that the spanking of the first client and the kissing of the second constituted conduct which was "prejudicial to the administration of Justice," and which "adversely reflect on [Goldsborough's] fitness to practice law," in violation of Maryland's former DR 1-102. He further concluded that the spanking of the secretary, which continued after January 1, 1987, the effective date of Maryland's Rules of Professional Conduct, constituted "conduct that is prejudicial to the administration of Justice," in violation of Rule 8.4 (d) of the Maryland Rules. Finally, the Judge held that Goldsborough had violated Rule 8.1 by "knowingly making a false statement of material fact" in a disciplinary proceeding and by failing in that proceeding "to disclose a fact necessary to correct a misapprehension...."
Goldsborough sought review of the Circuit Judge's decision in the Maryland Court of Appeals on a variety of grounds. In Goldsborough I, that court, in a comprehensive opinion, firmly rejected all of Goldsborough's contentions and sustained the Judge's findings. The court ordered that Goldsborough
be indefinitely suspended from the practice of law, with the right to apply for reinstatement no sooner than two years from the date of this opinion, *fn2 and only when he is able to persuade this Court that the conduct which necessitated his suspension will never be repeated.
Goldsborough I, 624 A.2d at 514.
On June 3, 1993, based upon Goldsborough's suspension in Maryland, this court temporarily suspended him from practicing law in the District and ordered him to show cause why reciprocal discipline should not be imposed. We also referred the matter to the Board for a recommendation as to the appropriate discipline. Goldsborough did not respond to the Order to Show Cause, nor has he participated in any way in the disciplinary proceedings in the District.
On August 11, 1994, the Board issued a twenty-four page Report and Recommendation. The Board had "no trouble concluding that the misconduct regarding misrepresentations and false testimony established in Maryland as violating Maryland Rules 8.1 and 8.4 (a) constitutes misconduct in the District of Columbia." The Board was also of the opinion that Goldsborough's dishonest acts had "seriously interfere with the administration of Justice" within the meaning of Rule 8.4 (d) of our Rules of Professional Conduct. These Rules became effective on January 1, 1991, well after the conduct at issue here, but the Board concluded that Goldsborough's misrepresentations were also in violation of DR 1-102 (A)(5), which proscribed conduct "prejudicial to the administration of Justice" before the effective date of our present Rules.
The Board found more difficult the question whether Goldsborough's spanking and kissing of his clients and his spanking of his secretary violated the District's disciplinary rules. In the Board's view, the spanking and kissing did not, under District of Columbia law, constitute conduct that is prejudicial to the administration of Justice." The Board construed this court's jurisprudence, and particularly In re Shorter, 570 A.2d 760, 768 (D.C. 1990) (per curiam), as requiring a nexus, not present in this case, between the misconduct and a judicial or administrative proceeding. *fn3 The Board concluded, however, that Goldsborough's conduct vis-a-vis the two women clients violated DR 7-101 (A), which provided that a "lawyer shall not intentionally . . . (3) prejudice or damage his client during the course of the professional relationship." *fn4 The Board thought it proper to invoke this disciplinary rule, although its counterpart had not been relied upon in Maryland, ...