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In re Berger

September 16, 1999

IN RE NEAL BERGER AND FRANK A.K. AWUAH, RESPONDENTS.


Before Schwelb, Farrell and Ruiz, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge:

Members of the Bar of the District of Columbia Court of Appeals

On Report and Recommendation of the Board on Professional Responsibility

Argued June 24, 199

In both of these reciprocal discipline matters, one from New Jersey, and the second from Maryland, the Board on Professional Responsibility ("Board") has recommended that the court depart from the presumption of imposing identical sanction in a reciprocal discipline proceeding, by omitting a fitness requirement *fn1 upon the completion of respondents' suspensions imposed as part of the sanctions in New Jersey and Maryland. The Board reasons that the fitness requirement would represent "substantially different discipline" from that which we would impose had these matters arisen as original discipline cases. Bar Counsel disagrees, arguing that a departure from the presumptively correct sanction imposed by our sister jurisdictions is unwarranted. Neither respondent has filed a brief or exceptions to the Board's report and recommendation in this court. We agree with Bar Counsel that identical reciprocal sanction is appropriate, and further endorse Bar Counsel's suggestion that the decision of whether the fitness requirement has been met in this jurisdiction should closely conform to the disciplined attorney's reinstatement in the original jurisdiction.

I.

A. 97-BG-1979 (In re Neal J. Berger).

In the New Jersey disciplinary action, respondent Berger was suspended by the Supreme Court of New Jersey for two years on October 16, 1997, after he had committed a series of fraudulent transactions with various insurers on behalf of himself and his firm. On March 7, 1988, Berger filed an insurance claim on behalf of his law firm, Poltrock and Berger, located in Florham Park, New Jersey, for damage caused by an office fire to furniture, computers, and other office items, which was settled by the insurer, Insurance Company of North America, for $13,692.77. On April 27, 1988, the law firm submitted a supplemental claim to its insurance agent, Horn Insurance Services, for replacement of trees and shrubbery, rental of new office space and loss of paper and records. To support its supplemental claim, the firm submitted a copy of a lease purportedly signed by Richard Falkin, the managing partner of Offices Unlimited, Inc., the landlord for the "new" office space, and Berger, as partner in the law firm.

The subsequent routine investigation by the insurer revealed that Falkin was not associated with Office Unlimited, and that the submitted lease form was no longer used by the landlord. The insurance investigator also determined that Berger's law firm had not relocated. The claim was then referred to the Fraud Division of the New Jersey Department of Insurance. The Fraud Division's investigation determined that Falkin had not in fact signed the lease, and that Berger previously had asked Falkin for a sample lease, which Falkin had supplied.

When asked about the claim, Berger explained to the Fraud Division investigator that he had obtained the lease in the event that the firm had to relocate due to the fire damage. Berger blamed his secretary for mistakenly submitting the lease as part of the insurance claim, stating that he had instructed her to place the lease in the file instead. When the investigator pointed out that Berger's signature appeared on the letter to the insurance agent, which had listed the lease as an enclosure, Berger changed his explanation to say that he had not realized that the firm would not have to move until after he had sent the letter. The law firm subsequently withdrew the supplemental claim. The New Jersey Disciplinary Review Board ultimately determined that Berger's explanation was not credible, and that Berger had forged the landlord's signature on the lease with the intent to defraud the insurance carrier.

Berger also submitted a claim to a second insurer, St. Paul Property and Liability Insurance, on behalf of Kelmar Realty Investors ("Kelmar"), the firm's landlord for the Florham Park office space, for structural damage resulting from the fire. To supplement his claim, on June 23, 1988, Berger submitted a release that he had prepared and witnessed, and which was purportedly signed by Michael Farrell, Kelmar's president. *fn2 After St. Paul sent a check in the amount of $10,428.15 to the firm, payable jointly to Kelmar and to the firm, respondent endorsed the check on behalf of the firm. Farrell's signature on behalf of Kelmar also appeared on the check. The check was deposited into one of the firm's bank accounts under the name "Springwick, Inc." *fn3

At the hearing in the New Jersey disciplinary action, Farrell testified that he had been in the process of selling Kelmar's office space to Berger's law firm prior to the fire, and that he was not aware of the fire until about a week after it had occurred. Farrell further testified that he did not learn either of the claim submitted by Berger on behalf of Kelmar, or of the insurance check and release bearing his signature, until the Fraud Division officer showed them to him. The disciplinary action charged Berger with forging Farrell's signature on the release and the settlement check and of swearing a false jurat on the release. At the hearing, Berger denied forging Farrell's signature, and stated that he could not recall making the attestation or preparing the release, and that his normal practice was to take only jurats in the signatory's presence. The Disciplinary Board found that Berger had executed a false jurat on the release when he notarized Farrell's signature, and that the false jurat was made for Berger's personal gain, as it facilitated the law firm's claim for additional insurance proceeds. However, the Board did not find clear and convincing evidence to prove forgery on the release or on the settlement check because Farrell had testified that at the time of the fire, the law firm owned the property, and insurance proceeds would have been payable to the law firm.

Berger was later charged criminally with one count of false swearing for falsely notarizing Farrell's signature without Farrell's appearance before him. *fn4 He subsequently entered into a consent agreement with the Fraud Division, under which he agreed to enter into a pretrial intervention program without admitting or denying that he had submitted a false insurance claim, and to pay a $5,000 civil penalty for himself, and a $5,000 penalty for each of his two law partners. The New Jersey Disciplinary Review Board, relying on a series of cases involving mail fraud and schemes to defraud insurance companies, recommended suspending Berger from the practice of law for two years. The Supreme Court of New Jersey agreed with the recommendation, concluding that Berger had violated New Jersey Rule of Professional Conduct 8.4 (b) (commission of criminal acts that reflect adversely on respondent's fitness as a lawyer); RPC 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and RPC 8.4 (d) (conduct prejudicial to the administration of Justice). See In re Berger, 700 A.2d 1230 (N.J. 1997). Under New Jersey Rule 1:20-21, Berger was also required to file a petition for reinstatement with the Supreme Court of New Jersey in order to be readmitted to the New Jersey Bar. *fn5

After this court entered an order suspending Berger on an interim basis pursuant to D.C. Bar Rule XI, § 11 (d), and referring the matter to the Board for a recommendation as to whether to treat the matter as a reciprocal case, Bar Counsel filed a statement with the Board recommending the imposition of reciprocal discipline. Berger filed an affidavit, pursuant to In re Goldberg, 460 A.2d 982 (D.C. 1983), contesting the New Jersey findings and asserting that 1) there was a lack of proof establishing the misconduct, and 2) even if he had committed the alleged misconduct, the sanctions issued were in excess of those imposed under similar circumstances in New Jersey. Berger further stated that a grave inJustice would result if the District of Columbia Court of Appeals were to impose reciprocal discipline because the facts did not support such a severe sanction in the District. A second affidavit, pursuant to D.C. Bar Rule XI, ยง 14 (g), was also submitted by Berger. On July 24, 1998, the Board filed its Rule and Recommendation with this court, agreeing that the two-year suspension was appropriate, but declining to recommend the additional fitness ...


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