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In re Balsamo

August 30, 2001

IN RE RICHARD W. BALSAMO, RESPONDENT A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Before Terry and Farrell, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Per Curiam

On Report and Recommendation of the Board on Professional Responsibility

Argued May 23, 2001

Respondent Richard W. Balsamo, a member of the Bar of the District of Columbia, was suspended from practice for thirty days by the United States Court of Appeals for the District of Columbia Circuit. Our Board on Professional Responsibility (the Board) recommends the reciprocal discipline of respondent under D.C. Bar R. XI, § 11. Respondent argues against the imposition of reciprocal discipline, contending that: (1) he was denied due process, both before the D.C. Circuit and before the Board; and (2) the misconduct, assuming it was established, warrants discipline substantially different from that imposed by the D.C. Circuit. We find respondent's arguments unpersuasive and, therefore, adopt the Board's recommendation and order respondent suspended from practice for thirty days.

I.

The record reflects that the D.C. Circuit suspended respondent for thirty days for "his repeated failures to meet court deadlines and his misrepresentations to the Court." The order of suspension issued by the D.C. Circuit states in part:

Respondent's egregious disregard of this court's process led to the dismissal of his client's appeal. In attempting to justify his late filings, respondent made several misrepresentations to this court. . . . [R]espondent violated his duty to provide competent representation and engaged in conduct that involved misrepresentation and seriously interfered with the administration of justice.

The D.C. Circuit's decision to suspend respondent was based on a report and recommendation issued by its Committee on Admissions and Grievances which assessed respondent's conduct before the D.C. Circuit. The Committee found that respondent's "failures to meet court-ordered deadlines, his disregard of the Rules of Appellate Procedure, and his failure to cooperate with opposing counsel seriously interfered with the Court's administration of justice. . . ." Regarding respondent's "numerous" misrepresentations, the Committee found:

First he certified that [his] brief did not exceed the word limitation, when the brief exceeded the limitation by a substantial amount, almost twenty per cent. . . . [Respondent] represented on May 19, 1996, that he had been out of the District of Columbia since April 23, 1996. However, [respondent] subsequently admitted that he was in town several days during that month. . . . [Respondent] represented that [his] brief and appendix were complete as of May 15, 1996, when in fact the brief required substantial redrafting, and he had only gathered the documents for the appendix. . . . [Respondent] represented that he was in Texas taking a deposition on May 4, 1996 when he was in his Washington D.C. office that day taking the deposition by telephone. . . . [Respondent] attributes these misstatements to mistakes or imprecise wording. The Committee members who heard [respondent's] testimony did not find his explanation convincing and did not believe him. . . .

The Committee, applying this court's Rules of Professional Conduct, *fn1 concluded that respondent violated Rules 1.1 (competent representation), 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4 (d) (conduct interfering with the administration of justice). The D.C. Circuit imposed the recommended discipline of a thirty-day suspension.

II.

Under District of Columbia Bar Rules, reciprocal discipline "shall be imposed" unless the respondent attorney demonstrates, by clear and convincing evidence, that one or more of five enumerated circumstances are present. *fn2 D.C. Bar R. XI, § 11 (c); see also In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Respondent argues that: (1) the hearing afforded by the D.C. Circuit and its Committee violated his due process rights, see D.C. Bar R. XI, § 11 (c)(1); and (2) any misconduct by respondent warrants only a public censure, which is substantially different from the thirty-day suspension imposed by the D.C. Circuit, see D.C. Bar R. XI, § 11 (c)(4). He also argues that our Board failed to afford him the hearing to which he was entitled.

A.

We address first respondent's due process arguments. First, according to respondent, the D.C. Circuit and its Committee on Admissions and Grievances violated his right to due process in that they declined to consider "later discovered evidence" concerning a conflict of interest by the judge who sanctioned respondent in a companion case in the United States District Court for the District of Maryland. The Honorable Frank A. Kaufman sanctioned respondent $20,000 for his conduct during a deposition in a case involving the same parties and issues as the D.C. Circuit case in which respondent's misconduct occurred. *fn3 At the time of the D.C. Circuit disciplinary proceedings, respondent knew that by January of 1997 Judge Kaufman had a conflict of interest and brought this fact to the attention of the Committee on Admissions and Grievances. *fn4 After the proceedings, respondent asserted to the D.C. Circuit that he had learned additional information concerning Judge Kaufman's conflict of interest. He requested a remand to the Committee on Admissions and Grievances so that the Committee could consider the significance of the new evidence. Although neither respondent's request to the ...


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