On Reports and Recommendations of the Board on Professional Responsibility (Bar Docket Nos. 8-02 & 9-02)
Before Schwelb and Glickman, Associate Judges, and Kern, Senior Judge.
"What's in a name?" *fn1 In these two consolidated cases, the Board on Professional Responsibility and Bar Counsel ask us to clarify the requirement embodied in D.C. Bar R. XI, § 11 (f)(2), that reciprocal attorney discipline shall be "identical" to the discipline imposed by the foreign jurisdiction unless certain conditions are met. We hold that the substance of the reciprocal discipline is more important for purposes of § 11 (f)(2) than the name attached to it and that for good cause we may impose functionally equivalent discipline under a name different from that used in the foreign jurisdiction. Applying that holding in the present cases, we reciprocally disbar two attorneys because their licenses to practice law in Virginia were revoked for misappropriation of client funds and other ethical violations. Revocation is not a sanction available in the District of Columbia in original discipline cases, disbarrment in the District of Columbia is equivalent in all but name to revocation in Virginia, and use of the term "disbarrment" in lieu of "revocation" will avoid the unnecessary and potentially misleading proliferation of different names for the same sanctions in reciprocal discipline cases.
Respondent Richard H. Laibstain was admitted to the District of Columbia Bar in 1984. Laibstain also was a member of the Bar of the Supreme Court of Virginia until the Virginia State Bar Disciplinary Board revoked his license effective November 16, 2001, after he admitted anumber of ethical violations. These violations included Laibstain's repeated, intentional misappropriation of client funds.
Bar Counsel reported the license revocation in Virginia to this court. We temporarily suspended Laibstain from the practice of law pursuant to D.C. Bar R. XI, § 11 (d), issued him a show cause order, and directed the Board on Professional Responsibility to recommend whether to impose identical, greater or lesser reciprocal discipline or to proceed de novo. Laibstain did not respond to the show cause order or participate in the Board proceeding that ensued. *fn2 Bar Counsel asked the Board to impose disbarrment as "functionally equivalent" reciprocal discipline. The Board issued its report on October 31, 2002. Deeming "identical" reciprocal discipline mandated by D.C. Bar R. XI, § 11 (f)(2), and opinions of this court, the Board recommended that Laibstain's license to practice law in the District of Columbia be revoked, subject to the right to apply for reinstatement in five years. This recommendation was a qualified one, however. The Board stated that if it "were writing on a blank slate, [it] would prefer to recommend the 'functionally equivalent' District of Columbia sanction [of disbarrment], thereby avoiding unnecessary expansion of the kinds of different sanctions imposed in our reciprocal discipline cases."
Excepting to the Board's recommendation, Bar Counsel asks us to disbar Laibstain.
Respondent Joel Steinberg has been a member of the District Columbia Bar since 1976. He was a member of the Virginia Bar too until the State Bar Disciplinary Board accepted the resignation he tendered while several serious ethics charges were pending against him and revoked his license on November 30, 2001. Under Virginia law then in effect, the charges against Steinberg, which included misappropriation of client trust funds, were deemed admitted. See Va. Sup. Ct. R. Pt. 6, § IV, ¶ 13 (I) (2000) (amended Sept. 18, 2002); *fn3 see also In re Sheridan, 680 A.2d 439, 440 (D.C. 1996) ("We have treated resignation while under investigation for misconduct as a basis for imposing reciprocal discipline in the District of Columbia.").
As in the case of Laibstain, this court suspended Steinberg in the wake of the revocation of his license to practice law in Virginia and directed him to show cause before the Board on Professional Responsibility. Like Laibstain, Steinberg failed to participate in the proceedings that followed. *fn4 Bar Counsel urged the Board to recommend disbarrment as functionally equivalent reciprocal discipline, but the Board adhered to the views it expressed in Laibstain's case and recommended revocation, again with the caveat that it would prefer disbarrment if that were permitted.
Bar Counsel takes exception to the Board's recommendation and asks us ...