Before Wagner, Chief Judge, and Terry and Farrell, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
On Report and Recommendation of the Board on Professional Responsibility
(Submitted January 19, 2000 Decided March 30, 2000)
This reciprocal discipline matter is before the court on the recommendation of the Board on Professional Responsibility (Board) that Leonard W. Krouner be suspended from the practice of law in the District of Columbia for a period of thirty days. Krouner was censured in a disciplinary proceeding in the State of New York based upon his criminal conviction in that state for theft of services, in violation of New York Penal Law § 165.15 (4), a class A misdemeanor, and upon findings that he violated Disciplinary Rules 1- 1029 (A)(4), (5) and (8) of the New York Code of Professional Responsibility. The Board recommends that we depart from the imposition of identical reciprocal discipline under Bar Rule XI, § 11 (c)(4) of our local rules. Krouner objects to the imposition of substantially different discipline. He contends that: (1) his misconduct does not warrant sanctions greater than those imposed by the states of New York and Florida; *fn1 (2) the Board failed to consider mitigating circumstances; and (3) "the `substantially different discipline' exception to the imposition of identical reciprocal discipline in D.C. Bar Rule XI , § 11 (c)(4) and (f)(2) violates the United States Constitution, Article IV § 1, 28 U.S.C. § 1728 and the reciprocity principles for recognition of disciplinary judgments between states." For the reasons stated in this opinion, we adopt the Board's recommendation.
Factual and Procedural Background
Krouner was disciplined in the State of New York based on three unrelated matters. On July 25, 1991, he was convicted on charges of theft of services. The conviction arose out of Krouner's billing, without authorization, more than $900 in long distance telephone calls to the telephone of Toyota Motor Sales, USA, Inc., (Toyota) between August and September 1986. In June 1987, Toyota demanded reimbursement, and Krouner complied by the end of September 1987. In explanation of his actions, Krouner claimed that "at the time of these unauthorized billings he was a plaintiff in a Federal court class action lawsuit against Toyota and merely wanted to demonstrate Toyota's capacity to account for small financial transactions." In mitigation, he stated that he was "beset by very stressful personal problems during the relevant time period . . . and that he has made positive and significant voluntary contributions to his community and his profession." He also provided a number of affidavits attesting to his good character.
Krouner's violations of New York's disciplinary rules arose out of his signing the names of two of his clients, who were co-executors of an estate, to a petition to extend preliminary letters testamentary on their behalf. Krouner had the document notarized and submitted it to the Albany County Surrogate Court. While admitting the violations, Krouner claimed in mitigation that "he was acting in good faith to ensure uninterrupted administration of the estate, the primary asset of which was a nursing home, and that he believed he had the co-executors' permission to sign their names to the petition." When he discovered that he had acted without the authorization of his clients, "he took prompt action to have the petition declared null and void, settle[d] some disputes among three co-executors, waive[d] his right to any fees for his work on the estate, and cease[d] his further provision of legal services for the estate."
In considering the charges of misconduct and the evidence offered in mitigation thereof, the New York court found that "[i]t is clear that respondent acted unethically in signing the co-executors' names to the petition without their unambiguous authorization and that he acted inexcusably in notarizing the signatures and then submitting the fraudulent documents to the Surrogate." The court also found that Krouner's failure to file with the court a record of his1991criminal conviction violated New York's rules of professional conduct. *fn2 Based upon the three charges, the New York Court imposed the sanction of public censure.
Bar Counsel recommended to the Board identical discipline. In rejecting Bar Counsel's recommendation, the Board stated:
This recommendation . . . only considered reciprocal sanctions imposed pursuant to Rule XI, § 11 (c), where there is a presumption of identical discipline. Bar Counsel did not address the issue of the appropriate sanction under Rule XI, § 10 (d), where the sanction imposed is the result of a conviction of a serious crime. Moreover, in recommending identical reciprocal discipline, Bar Counsel did not acknowledge that there were several practice-related dishonesty violations occurring eight years apart or that [Krouner] was found to have engaged in conduct prejudicial to the administration of justice which adversely reflected on his fitness to practice law.
The Board recommended to this court a thirty-day suspension. The Board's recommended sanction was based on two separate provisions of Rule XI, specifically, § 10 (d) providing for discipline upon convictions of a serious crime, and § 11 providing for reciprocal discipline. The Board determined that the minimum sanction for a misdemeanor conviction involving dishonest conduct is a thirty-day suspension. Further, the Board concluded that a thirty-day suspension "is at the lower end of the range of sanctions where there are two or more separate acts of dishonesty." In determining whether to apply the "substantially different discipline" exception of Rule XI, § 11 (c)(4), the Board determined that "if this matter were before us on these facts as an original jurisdiction case, the very minimum recommendation would be a suspension of 30 days." The Board further concluded that the difference in the New York sanction of public censure and the original jurisdiction sanction of suspension "is substantial" and "that a public censure is outside the range of sanctions for [Krouner's] misconduct for purpose of reciprocal discipline."