Before Farrell, Reid, and Washington, Associate Judges.
On Report and Recommendation of the Board on Professional Responsibility
Farrell, Associate Judge: Respondent (hereafter Maxwell) consented to a public reprimand by the Court of Appeals of Maryland for ethical violations consisting primarily of conflicts of interest. In doing so, he admitted that the underlying conduct took place in 1986 and 1987 and was "addressed to [sic]" a civil lawsuit in the Superior Court of the District of Columbia that had resulted in (a) an opinion of the trial court issued in October 1995 and (b) an opinion of this court following appeal. The Maryland order of discipline rested on no other factual predicate.
In the present reciprocal discipline proceeding, the Board on Professional Responsibility (the Board) declines to recommend identical discipline because it regards Maxwell's conflicts of interest, as revealed by the findings of the Superior Court trial judge, as having strong features of aggravation. Instead the Board recommends his suspension for one year.
We are unable to accept the Board's recommendation. As pointed out, no factual determinations other than a bare reference to the Superior Court lawsuit underlay the Maryland discipline. And, for the reasons that follow, the Superior Court action and the findings of fact of the trial judge therein are not a permissible basis for concluding that Maxwell's conduct warrants discipline exceeding that imposed by Maryland. On the other hand, if the facts concerning Maxwell's behavior are satisfactorily proven, the Board's concern is a legitimate one that a public reprimand *fn1 may be too lenient when compared to the discipline this court has imposed for misconduct of similar gravity. We therefore will return the matter to the Board for reconsideration whether to recommend identical reciprocal discipline or to direct further proceedings under D.C. Bar Rule XI, § 11 (g)(2) or (3).
Both disciplinary matters stem from a suit for declaratory judgment that Maxwell brought in Superior Court against two former clients and a corporation in an effort to retain ownership of eleven shares of stock. The defendants filed a counterclaim seeking rescission of the stock transfer, contending that Maxwell's law firm had breached its fiduciary duty in representing the corporation and owners. The trial court ruled for the defendants and in doing so issued a lengthy opinion detailing what it found to be substantial conflicts of interest on the part of Maxwell and a partner, Robert Bear. See Maxwell v. Gallagher, No. 88-10687 (D.C. Super. Ct. October 13, 1995). On appeal, this court sustained the order rescinding the stock transfers (but reversed an award of punitive damages). See Maxwell v. Gallagher, 709 A.2d 100 (D.C. 1998).
On the basis of facts adduced in the Superior Court case, *fn2 Maryland Bar Counsel brought disciplinary charges against Maxwell. Then, in November 1999, Maxwell and Maryland Bar Counsel entered into a Joint Petition for Reprimand which, in relevant part, stated as follows:
2. The misconduct, as charged, took place in 1986 and 1987 and the Respondent has not been the subject of any other complaints or discipline during that time.
3. The conduct was first addressed to the District of Columbia Superior Court. The October 13, 1995 Opinion of the trial court was appealed to the District of Columbia Court of Appeals[,] whose Opinion did not issue until April 2, 1998.
4. The parties agree that the appropriate disposition should be a published reprimand for violations of DR 5-104 (a)(b) and DR 5-105 (a)(b) of the Code of Professional Responsibility and Rule 1.7 (a)(b) and 1.8 (a)(b) of the Rules of Professional Conduct. *fn3
Following the order of public reprimand by the Maryland Court of Appeals, this court directed the Board to recommend whether reciprocal discipline should be imposed. Bar Counsel reviewed the evidence as set forth in the findings of the Superior Court in the civil case and found "significant reasons to decline to impose discipline identical to that imposed by the Maryland Court." Maxwell's misconduct had taken place in the District of Columbia and, according to Bar Counsel, "involve[d] significant conflicts of interest." On the other hand, there was no contested proceeding in Maryland but instead a stipulated disposition without an evidentiary hearing. For this reason, Bar Counsel advised that
the more appropriate course is to refer the matter to a Hearing Committee for its recommendation as to the appropriate discipline pursuant to D.C. [Bar] R. XI, § 11 (g)(2). Such a course would result in a proceeding where the concession of misconduct that [Maxwell] accepted in Maryland is given force and effect. D.C. [Bar] R. XI, § 11 (g). Thus, the proceeding should address only the issue of sanction and not the issue of violation vel non. The Hearing Committee should receive and consider any and all evidence relevant to sanction.
Alternatively, the Board could direct Bar Counsel to institute such proceedings as may be appropriate pursuant to D.C. [Bar] R. XI, § 11 (g)(3). Such a procedure would allow for an examination [of] the facts and circumstances of the misconduct for the purpose of determining whether the ...