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In re Bowser

April 19, 2001

IN RE CHARLES H. BOWSER, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS



Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Per Curiam

On Report and Recommendation of the Board on Professional Responsibility

Argued April 4, 2001

The Board on Professional Responsibility (the Board) has recommended that respondent be suspended from the practice of law in the District of Columbia for one year. The discipline stems from conduct that resulted in respondent's plea of guilty in the United States District Court for the Eastern District of Virginia to making false statements (18 U.S.C. § 1001) to the Immigration and Naturalization Service in connection with his representation of a client applying to become a naturalized citizen. A Hearing Committee found, and the Board agreed, that respondent's conduct leading to the conviction did not involve moral turpitude. See, e.g., In re Cerroni, 683 A.2d 150 (D.C. 1996). The Board nonetheless determined that respondent had engaged in multiple ethical violations, including commission of a criminal act reflecting adversely on his honesty.

Respondent does not dispute the ethical violations nor the recommendation of a one-year suspension. His sole challenge is to the Board's refusal to recommend that the suspension be ordered nunc pro tunc to September 30, 1998, or at the least to March 17, 2000, when, according to respondent, he filed successive affidavits in compliance with D.C. Bar Rule XI, § 14 (g). The Board determined that neither affidavit conformed to the requirements of section 14 (g), specifically rejecting respondent's claim of "substantial compliance." Bar Counsel asserts that respondent did not file a satisfactory affidavit until July 3, 2000, so that his suspension should run from that date.

We accept the Board's conclusion as to the ethical violations shown and its recommendation of a one-year suspension. See D.C. Bar Rule XI, § 9 (g); In re Goldsborough, 654 A.2d 1285, 1287-88 (D.C. 1995). We further agree with the Board that respondent's first two affidavits did not meet the requirements of Rule XI, § 14 (g), and that the shortcomings were not "technical" as respondent now characterizes them. We have examined the third affidavit filed July 3, 2000, and agree with Bar Counsel that it complies with the rule's requirements.

We publish the relevant portions of the Board's report, attached hereto, because it demonstrates cogently the importance of the affidavit requirement and why respondent's successive failures to comply with it cannot be minimized. We especially note the Board's recognition that a disbarred or suspended attorney is not relieved of the obligation to comply fully with Rule XI, § 14 (g) by Bar Counsel's failure to file with the Board and the court a "Notice of Non-Compliance," as permitted by the Board's internal Rule 9.9. As the Board correctly states, "Neither we nor Bar Counsel have power to waive compliance with [D.C. Bar Rule XI,] § 14."

For these reasons and those stated in the Board's report, it is

ORDERED that Charles H. Bowser be, and hereby is, suspended for one year from practicing law in the District of Columbia, nunc pro tunc to July 3, 2000.

APPENDIX

Bar Docket Nos. 283-98 and 519-98

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This case comes to us from Hearing Committee No. 5, which concluded that the criminal offense of which Respondent was convicted, a violation of 18 U.S.C. §1001, did not involve moral turpitude on the facts but his underlying conduct violated a number of the Rules of Professional Conduct. The Committee recommended a one-year suspension, without a fitness requirement.

Neither side has excepted to the Hearing Committee's findings and conclusions on the violations or to the Committee's recommended sanction. There remains a single issue-when the suspension period, if ordered by the Court, should begin to run. That requires us to decide the sufficiency of Respondent's showing of compliance with D.C. App. R. XI ("Rule XI"), §14(g), imposing certain affidavit requirements on suspended attorneys. Respondent asserts that he has complied. Bar Counsel claims that he has not.

We are constrained by our reading of the relevant authorities and the facts of record to agree with Bar Counsel. The recommended period of suspension should begin to run when Respondent complies with Rule XI, §14(g), as we construe it in this Report and Recommendation.

4. The Rule XI, §14(g) Issue.

We turn now to a consideration of when Respondent's suspension should begin to run, if our recommendation for a one-year suspension is upheld. Bar Counsel and Respondent differ on whether he has complied with Rule XI, §14(g), which provides:

"Required Affidavit and Registration Statement. Within ten days after the effective date of an order of disbarrment or suspension, the disbarred or suspended attorney shall file with the Court and the Board an affidavit:

(1) Demonstrating with particularity, and with supporting proof, that the attorney has fully complied with the provision of the order and with this rule;

(2) Listing all other state and federal jurisdictions and administrative agencies to which the attorney is admitted to practice; and

(3) Certifying that a copy of the affidavit has been served on Bar Counsel.

The affidavit shall also state the residence or other address of the attorney to which communications may thereafter be directed. The Board may require such additional proof as it deems necessary. In addition, for five years following the effective date of a disbarrment or suspension order, a disbarred or suspended attorney shall continue to file a registration statement in accordance with Rule II, stating the residence or other address to which communications may thereafter be directed, so that the attorney may be located if a complaint is made about any conduct of the attorney occurring before the disbarrment or suspension. See also section 16(c)."

Respondent asserts that he is entitled to have the suspension run nunc pro tunc from some prior date. Under Bar Counsel's analysis, the period of suspension would not begin to run until Respondent complies with Rule XI, §14(g).

We find that the relevant facts on this issue are as follows:

1. The Court suspended Respondent from practice on September 4, 1998. The suspension Order stated:

"Respondent's attention is drawn to the requirements of D.C. Bar Rule XI, §14 relating to suspended attorneys and to the provisions of §16(c) dealing with the timing of eligibility for reinstatement as related to compliance with ...


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