Before Schwelb and Ruiz, Associate Judges, and Gallagher, Senior
The opinion of the court was delivered by: Ruiz, Associate Judge
After a complaint was filed with the Virginia State Bar alleging that Charles Schoeneman had neglected a case and failed to keep his client informed of its progress, Schoeneman chose not to contest the allegation, and surrendered his license to practice law in Virginia. Because a resignation in the face of pending charges of misconduct is a form of bar discipline, see In re Day, 717 A.2d 883, 888 (D.C. 1998), the Board on Professional Responsibility recommends that Schoeneman be suspended from the District of Columbia Bar as a reciprocal matter, with leave to apply for reinstatement if granted in Virginia, or after five years, whichever occurs first.
Schoeneman contests the Board's recommendation, contending that (1) the allegations in Brice's complaint would not constitute misconduct in the District of Columbia; (2) the discipline recommended by the Board is substantially greater than warranted by his alleged conduct, even if it were misconduct; (3) imposing discipline where, as here, the respondent previously had been exonerated by D.C. Bar Counsel in its independent investigation would be a "grave injustice"; (4) his resignation in Virginia did not constitute bar discipline that could support reciprocal discipline because formal charges had not been filed; and (5) the Board's failure to grant him an evidentiary hearing violated his right to due process.
We concur with Schoeneman that the allegations in Brice's complaint would not constitute misconduct in the District of Columbia, and reject the recommendation of the Board without reaching his other claims of error.
Barbara Brice hired Charles Schoeneman to reopen a Title VII racial discrimination case against Nations Bank that she had lost because the trial court held that she had forged a memorandum used to support her claim. Schoeneman was hired to prove that the opposing party, and not Brice, had forged the memorandum, allowing her to reopen her claim.
On March 20, 1997, several years after hiring Schoeneman, Brice filed a complaint with the Virginia Bar, alleging that he had failed to return her telephone calls for several weeks or to reopen her case. Her complaint included the following statement of facts and allegations:
When I first met Mr. Schoeneman he was working out of the law firm Koositsky & Assoc. [in Arlington, Virginia]. . . . We visited Va. on four occasions at this location. Mr. Schoeneman reviewed my case and stated for a retainer of $5,000 he would begin to represent me in the case listed. August 5, 1994 the agreement was mailed to me federal express. Mr. Schoeneman was paid $2,500 as stated before August 15, 1994 and $3,000 in Feb. 1995. We communicated by phone and Mr. Schoeneman visited Baltimore on several occasions. He claimed he was working on attempting to reach a settlement with Nation's Bank each and every month we spoke. He also stated that he was working on the complaint to be filed in U.S. District Court if he could not settle. I haven't [illegible] him for the last three weeks. I get nothing but an answering machine. Mr. Schoeneman has taken over $5,000 to investigate and reopen this case.
On April 18, 1997, Virginia Bar Counsel informed Schoeneman of Brice's complaint, and requested an answer within twenty-one days. *fn1 Schoeneman did not respond, but, on October 2, 1997, surrendered his license to practice law in Virginia. *fn2
On December 23, 1997, Brice filed an almost identical complaint with District of Columbia Bar Counsel, alleging that Schoeneman "refused to file the suit or refund my money." Schoeneman defended himself in the District. On April 13, 1998, he wrote to Bar Counsel, explaining that he hired documents experts, a handwriting expert and a private investigator to pursue Brice's claim, yet could not prove that someone other than Brice had forged the memorandum, and therefore could not reopen the case without violating Federal Rule of Civil Procedure 11. Bar Counsel accepted that explanation, and informed Brice that "Mr. Schoeneman's decision not to file a motion to reinstate [her] civil case reflected his professional judgment. It is beyond the purview of this office to second-guess such decisions."
About a year later, Virginia authorities informed D.C. Bar Counsel of Schoeneman's resignation and provided the following confidential summary of the pending charges:
In approximately August of 1994, Barbara Brice retained the Respondent to reopen her Title 7 discrimination case which had been filed in U.S. District Court in Baltimore. Ms. Brice paid the Respondent approximately $6,000.00. The Respondent hired a private officer and then did not pay him despite having received the funds to do so.
Barbara Brice also alleges that the Respondent failed to timely work on her case and failed to ...