On Report and Recommendation of the Board on Professional Responsibility.
Before Terry and Farrell, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge: In this attorney disciplinary case, we determine whether respondent, David B. Webster, may receive reciprocal discipline in this jurisdiction, pursuant to District of Columbia Bar Rule XI, § 11, based upon his disbarrment from the practice of law in Palau, a Trust Territory located in the Pacific Islands. At the outset, we note that respondent was required, pursuant to this court's order dated March 28, 1994, *fn1 to apprise us of the status of his appeal from the Palauan disbarrment order which had been pending before the Appellate Division of the Supreme Court of Palau. Respondent instead filed a motion for leave to resign as a member of the Bar of the District of Columbia, which was later denied by this court. *fn2 In its opposition to respondent's motion, Bar Counsel submitted a copy of an opinion dated May 10, 1994, from the Appellate Division of the Supreme Court of Palau, dismissing respondent's appeal from the disbarrment order. In this opinion, the Palauan court held that "no appeal can be had to the Appellate Division of the Supreme Court from a Disciplinary Tribunal decision." In re Webster, Civil Appeal No. 20-92, Supreme Court of Palau (App. Div. May 10, 1994). Relying upon Palau's Disciplinary Rule 5(k), which provides that "the decision of the Disciplinary Tribunal shall be final," the Palauan court explained that the finality of a Disciplinary Tribunal's decision is due to the limited number of Judges available to hear cases in Palau. Id. at 2. Since three of the four Palauan Supreme Court Justices are selected to sit on the Disciplinary Tribunal, an appeal from the Tribunal's decision "would result in the appeal being heard by many, if not all, of the same Judges who sat as members of the Disciplinary Tribunal." Id. With the appealability issue of the Palauan disbarrment order having been resolved, *fn3 we turn to the merits of respondent's reciprocal discipline case.
Based upon respondent's misconduct in Palau, the Board on Professional Responsibility (Board) recommends the imposition of reciprocal discipline against respondent. Respondent, however, contends that reciprocal discipline cannot be applied here because Palau is not a "territory or possession of the United States" as provided in the District's Rules. *fn4 Respondent also asserts due process violations with respect to the disciplinary proceedings in Palau and claims generally that imposition of reciprocal discipline would result in grave inJustice. We conclude that the District's Rules are applicable to respondent's case, and that reciprocal discipline is warranted under these circumstances.
The present case involves disciplinary violations which initially occurred in the State of Florida and the Trust Territory of Palau in the Pacific Islands. Although the basis for the Board's recommendation of respondent's disbarrment rests upon his disciplinary violation in Palau, it is necessary that we also discuss his conduct in Florida which led to the instant proceedings.
In May 1990, the Supreme Court of Florida found that respondent, a member of the Florida and District of Columbia Bars, violated its disciplinary rules and consequently suspended him from practicing law in Florida for eighteen months. *fn5 Respondent's violations included misappropriation of client funds and a failure to promptly distribute such funds. Respondent did not report these ethical violations to the District of Columbia Office of Bar Counsel (Bar Counsel) as required by Rule XI, § 11 (b). *fn6 Following the submission of respondent's petition for reinstatement to the Florida Bar, in May of 1992, the Florida Bar notified the District regarding respondent's violations. Shortly thereafter, Bar Counsel forwarded a letter to respondent which indicated the matter would be referred to this court for reciprocal discipline. In his letter of response to Bar Counsel, respondent admitted the disciplinary violations in Florida and explained the rehabilitative measures which he had undertaken in order to ensure his reinstatement to the Florida Bar. Respondent also mentioned that, subsequent to his suspension in Florida, he had obtained a special prosecutor position in the Trust Territories of the Pacific Islands.
On November 16, 1992, this court suspended respondent and ordered him to show cause why identical discipline should not be imposed against him based upon his misconduct in Florida. In addition, the Board was ordered to recommend to this court whether reciprocal discipline should be imposed against respondent or whether the Board elected to conduct a de novo proceeding pursuant to Rule XI, § 11. Following this court's order, Bar Counsel discovered that respondent had been the subject of disciplinary action in Palau. With the knowledge of this subsequent disciplinary sanction against respondent, Bar Counsel requested the Board to defer further action on the reciprocal disciplinary proceedings which were already pending against him based upon his misconduct in Florida. This request was granted, and Bar Counsel obtained a copy of the order entered by the Supreme Court of Palau which disbarred respondent.
The disbarrment order from Palau indicated that at the time respondent applied for membership in the Palau Bar, he informed Palau that he was a member in good standing of the District of Columbia Bar, but mentioned neither his membership in the Florida Bar nor the disciplinary violations against him in Florida. *fn7 After learning of respondent's disciplinary violations in Florida, the Supreme Court of Palau appointed Disciplinary Counsel to investigate the matter. On September 14, 1992, Disciplinary Counsel discovered that respondent had left the Republic of Palau, but an employee at respondent's office expected him to return by September 22, 1992. With respondent's whereabouts still unknown, on October 9, 1992, Disciplinary Counsel filed a formal complaint against respondent for misrepresenting and concealing a material fact on his application to the Palau Bar. Disciplinary Counsel forwarded, by certified mail, a copy of the complaint, along with a notice of a disciplinary hearing scheduled for November 9, 1992, to respondent's office address in Palau and his last known address in Florida. On that same day, respondent forwarded a letter by telefax to Disciplinary Counsel indicating that he could be contacted through his attorney in Florida. Following this correspondence, Disciplinary Counsel telefaxed a copy of the complaint and notice of hearing to respondent's attorney. However, respondent's counsel replied that he was not authorized to accept service. On November 4, 1992, respondent informed Disciplinary Counsel that he had received a copy of the complaint on October 25, 1992. Respondent failed to appear at the disciplinary hearing. At the Conclusion of the hearing, it was determined that respondent violated Palau's disciplinary rule which proscribes an attorney from misrepresenting or concealing a material fact in his application for admission to the Palau Bar.
In light of this subsequent misconduct in Palau, we issued a show cause order requiring respondent to demonstrate to the Board why reciprocal discipline should not be imposed against him. In his reply, respondent specifically contends that Palau, a Trust Territory, is not a "territory" which is subject to the District's reciprocal disciplinary rules. The relevant section of the District's reciprocal discipline rules provides:
As used in this section, "disciplining court" shall include any court of the United States as defined in Title 28, Section 451 of the United States Code, the highest court of any state, territory, or possession of the United States, and any other agency or tribunal with authority to disbar or suspend an attorney from the practice of law in any state, territory, or possession of the United States.
D.C. Bar R. XI, § 11 (a).
In addition, respondent asserts he was not afforded proper notice and an opportunity to be heard with respect to the disciplinary proceedings in Palau and that the imposition of reciprocal discipline would result in ...