On Report and Recommendation of the Board on Professional Responsibility (BDN 007-02)
Before Steadman and Washington, Associate Judges, and King, Senior Judge.
Submitted January 15, 2004
In this disciplinary proceeding against respondent Richard C. Spitzer, a member of the Bar of the District of Columbia Court of Appeals, the Board on Professional *fn1 Responsibility ("Board") has recommended to this court that reciprocal, but not identical, sanctions be imposed and that respondent be suspended for thirty days and any reinstatement be subject to respondent demonstrating fitness and showing that he has refunded the unearned $1,500 retainer noted in the Maryland case. No exceptions to the Board's Report and Recommendation have been filed. The text of the Report and Recommendation is annexed to this opinion. *fn2
On December 6, 2001, the Court of Appeals of Maryland disbarred respondent for disciplinary violations involving neglect of client matters and conduct prejudicial to the administration of justice that occurred in the spring of 1993. Respondent did not notify this court of his disbarrment. However, upon receipt of notice by Maryland, on February 13, 2002, this court suspended respondent pursuant to D.C. Bar Rule XI, § 11 (d) and directed the Board to recommend whether reciprocal discipline should be imposed. Respondent has failed to file the required affidavit pursuant to D.C. Bar Rule XI, § 14 (g).
On March 15, 2002, Bar Counsel stated that while reciprocal discipline was justified, identical discipline was not, and recommended that respondent be suspended for at least thirty days and required to demonstrate his fitness to practice law as a condition of reinstatement, and that he document payment of $1,500 to his former client in the Maryland matter.
In its report and recommendation, the Board determined that respondent's misconduct in Maryland violated the following D.C. Rules of Professional Conduct: 1.3 (a) (represent a client zealously and diligently), 1.4 (a) (keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information), and 1.16 (d) (take timely steps to protect a client's interest in connection with terminating representation). The Board noted that it did not conclude, nor did it need to conclude, whether respondent's unexplained failure to respond to the investigation by the Maryland disciplinary authority would have violated the Rule of Professional Conduct 8.1 (b) (failure to respond to a lawful demand for information from a disciplinary authority) or 8.4 (d) (serious interference with the administration of justice). The Board stated that a conclusion on this issue would not affect their recommendation of a thirty-day suspension with a fitness requirement. See In re Kuhn, 764 A.2d 239 (D.C. 2000). *fn3
A rebuttable presumption exists that "the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Goldsborough, 654 A.2d 1285, 1287 (D.C. 1995) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)). However, the Board and this court may impose a different sanction if it determines: 1) the misconduct in question would not have resulted in the same punishment here as it did in the disciplining jurisdiction, and 2) the difference is substantial. In re Sheridan, 798 A.2d 516, 522 (D.C. 2002) (quoting In re Krouner, 748
A.2d 924, 928 (D.C. 2000) (quoting In re Garner, 576 A.2d 1356, 1357 (D.C. 1990))). The first step considers whether the "discipline of the foreign jurisdiction is within the range of sanctions that would be imposed for the same misconduct in this jurisdiction." See id. We accept for present purposes the Board's conclusion that disbarrment is outside the range of discipline this court has imposed for the rule violations respondent committed. In re Lewis, 689 A.2d 561 (D.C.1997) is a *fn4 similar case to this instance where the respondent, like Spitzer, violated D.C. Rules of Professional Conduct 1.3 (a), 1.4 (a), and 1.16 (d) and received a thirty-day suspension with a fitness requirement. See also In re Bernstein, 707 A.2d 371 (D.C. 1998); In re Kuhn, supra. *fn5
The Board in this case recommends a thirty-day suspension. No exception has been taken to its report and recommendation. Therefore, the Court gives heightened deference to the Board's recommendation. See D.C. Bar R. XI, § 9 (g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997). We find substantial support in the record for the Board's findings, and accordingly, we accept them. We adopt the sanction the Board recommended since it is not inconsistent with discipline imposed in similar cases. Accordingly, it is
ORDERED that Richard C. Spitzer is suspended from the practice of law in the District of Columbia for the period of thirty days, effective immediately, and reinstatement is subject to respondent demonstrating fitness and showing documentation of a $1,500 refund to his former client in the Maryland matter. We direct respondent's attention to the requirements of D.C. Bar F. XI, § 14 (g), and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16 (c).
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON ...