Before Steadman and Reid, and GRAAE[fn*], Associate Judges.
[fn*] Sitting by designation pursuant to D.C.Code § 11-707(a)
The opinion of the court was delivered by: Graae, Associate Judge:
In this reciprocal discipline matter from Florida, the Board on Professional Responsibility ("Board") recommends the court impose a two-year suspension on Respondent, with a requirement that he demonstrate fitness to practice as a condition of reinstatement, rather than disbarment, as was imposed by the Supreme Court of Florida. The Board argues that Respondent's misconduct in Florida, if committed here, would not subject him to disbarment in the District of Columbia, and, thus, the "substantially different discipline" exception to imposing identical discipline applies. Bar Counsel disagrees, urging the court to impose reciprocal disbarment. We agree with Bar Counsel that imposition of identical discipline is appropriate.
The applicable Bar rule provides that reciprocal discipline shall be imposed unless the attorney can show by clear and convincing evidence that his case comes within one of the five exceptions. D.C. Bar R. XI, [711 A2d Page 1263]
§ 11(c). *fn1 In re Gardner, 650 A.2d 693, 695 (D.C. 1994); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). We have stated that "[t]he rule thus 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.
In this case, Respondent after notice did not file a timely opposition to Bar Counsel's stated intent to seek reciprocal disbarment, pursuant to our temporary suspension and show cause Order issued on December 13, 1996, Rule XI, § 11(d) and Bar Rule 8.2. Indeed, he did not oppose before the Board the proposed imposition of identical discipline and otherwise took no part in the proceedings before the Board, other than to file the affidavits entitling him to retroactive treatment. See note 3, infra. Thus, Respondent waived his right to show cause why he should not be subject to identical discipline.
Despite the plain language of Rule XI, § 11(c) placing the burden on Respondent to prove by clear and convincing evidence that a lesser sanction is warranted, Rule XI, § 11(f)(2) grants the court independent authority to impose different discipline if it finds "on the face of the record . . . by clear and convincing evidence" that an exception applies. *fn2 Pursuant to the same authority, the Board can recommend a different sanction where it believes an exception applies. Gardner, 650 A.2d at 696.
The Board's argument for a lesser sanction is premised on its conclusion that the Florida discipline "was primarily based on Respondent's conduct in authorizing forged signatures and his subsequent knowing notarization of those signatures." Perhaps Respondent might not have been disbarred in the District of Columbia if this were the full extent of his misconduct. However, we think Florida's disbarment order was based on far more, including a lengthy pattern of dishonesty and misrepresentation and a prior history of discipline.
Respondent was found guilty of multiple violations in his representation of five clients between 1988 and 1993. In 1988, he represented Steven Amburgey in a workers' compensation case. His agreement with Amburgey authorized him to hold some of his client's compensation benefits in trust and to use them as a fund for compensation, provided he obtain court approval of all attorneys' fees and costs. Between November 1988 and June 1989, Respondent withdrew more than $1,600 in fees and costs without court approval. Later recognizing that his withdrawals of funds were improper, Respondent opened a trust account and deposited all but $171.14 of the amount he had improperly disbursed to himself. He thereupon petitioned the court for permission to disburse all the funds he had deposited in the account, but without disclosing his previous unapproved withdrawals. The Florida Supreme Court held this to be a misrepresentation to the court. In addition, the Court found Respondent had committed numerous other ethical breaches in his representation of Mr. Amburgey, violating a total of twenty provisions of the Rules Regulating The Florida Bar (Florida Rules). [711 A2d Page 1264]
In August 1988, Respondent entered into a settlement agreement with Southern Bell on behalf of his client Leonard Champagne. Unable to locate his client and without authorization to accept the settlement, Respondent instructed one of his non-lawyer employees to forge Champagne's signature on the release forms and then notarized the signatures himself. When Southern Bell learned of the forgeries, they demanded that Respondent secure judicial approval for his actions. He thereupon filed a petition for an order to deposit settlement funds into the court registry, but without disclosing that the notarized signatures were forged. This was deemed to be a fraud on the Court. Respondent was also found to have entered into an improper retainer agreement with Champagne that provided for a $1,000 non-refundable retainer fee and a forty percent contingent fee on any "award under $1 million after a lawsuit is filed." Although Respondent filed no lawsuit, he calculated his attorneys fees as forty percent of the pre-tax settlement with Southern Bell and took $5,206 from Champagne's $7,622.32 post-tax settlement. In all, the Court found that Respondent had violated fourteen of the Florida Rules in his representation of Mr. Champagne.
In his 1991 representation of Edward Jenkins, Respondent was found to have entered into an illegal contingent fee agreement because it provided for payment at an hourly rate for services rendered if there were no settlement or final judgment. As to the Bar grievance by Craig Reese, Respondent was found to have charged for legal services without a retainer agreement, revealed confidential information about Reese's case to third parties, threatened Reese with collection if he did not withdraw his grievance, and allowed non-lawyer employees to sign letters "for the firm" without disclosing their nonlawyer status.
Finally, Respondent was found to have violated rules pertaining to unauthorized practice of law and supervision of staff in having his non-lawyer employees write letters to a client, advising the client of his withdrawal ...