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In re Spitzer

DISTRICT OF COLUMBIA COURT OF APPEALS


March 25, 2004

IN RE RICHARD C. SPITZER, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS

On Report and Recommendation of the Board on Professional Responsibility (BDN 007-02)

Before Steadman and Washington, Associate Judges, and King, Senior Judge.

Per curiam.

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).

So ordered.

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of: RICHARD C. SPITZER, Respondent.

Bar Docket No. 007-02

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

Respondent has been a member of the Bar of the District of Columbia since December 7, 1973, although he has been administratively suspended since November 30, 1993, for nonpayment of dues. Until recently, he was also a member of the Bar of the State of Maryland. On December 6, 2001, the Court of Appeals of Maryland ordered Respondent disbarred for various disciplinary violations involving neglect of client matters and conduct prejudicial to the administration of justice. Bar Counsel argues that Respondent should receive reciprocal, but not identical discipline in this jurisdiction. Although we do not agree with all of Bar Counsel's submission, the Board agrees that nonidentical reciprocal discipline is in order, and recommends that Respondent be suspended for 30 days, with an additional requirement that he demonstrate his fitness to practice law before resuming practice in this jurisdiction.

We take the facts as recited in the opinion of the Maryland Court of Appeals, which disbarred Respondent based on an evidentiary record compiled in the Maryland Circuit Court for Anne Arundel County (the "Maryland Circuit Court") at a hearing in which Respondent did not participate. In January 1993, two individuals (the "complainants") who resided in the State of New York contacted Respondent, who maintained a law office in Rockville, Maryland, about assisting them in enforcing in Maryland a New York judgment that they had obtained for more than $82,000 against persons who resided in Rockville. The complainants' New York attorney sent Respondent two checks, totaling $1,500, representing an advance payment. Respondent had the foreign judgment filed in the Maryland Circuit Court for Montgomery County. Respondent then requested more information from the complainants, who provided the information, but heard nothing further from Respondent. Respondent apparently did no further work on the case, and the Maryland Circuit Court specifically found that Respondent had earned no part of the advance payment. After learning that Respondent's office phone was disconnected, the complainants traveled to Maryland but discovered that Respondent had abandoned his office. Respondent had also moved from his last known home address, in Arlington, Virginia. He left no forwarding address, nor did he return any portion of the $1,500 retainer.

Maryland Bar Counsel initiated an investigation, but all efforts to contact Respondent failed. Maryland Bar Counsel wrote to Respondent at a private letter drop in Anchorage, Alaska, an address obtained from his law school alumni association, but received no response. According to Respondent's former wife, Respondent has moved around the country and has not established any fixed residence.

Maryland Bar Counsel then brought disciplinary charges against Respondent in the Maryland Circuit Court but was unable to secure personal service of the charges on Respondent because of the lack of a known address for Respondent. As provided under Maryland Rule 16-709d, Maryland Bar Counsel effected constructive service on Respondent by serving the Treasurer of the Maryland Clients' Security Trust Fund, which sent Respondent notice of the pending proceedings by certified and ordinary mail to his addresses listed with the Trust Fund. Respondent made no response or appearance in the Maryland courts. Based on the above, the Maryland Court of Appeals concluded that Respondent violated Maryland Rules 1.1, 1.3, 1.4(a), 1.16(d), 8.1(b), and 8.4(d) and ordered Respondent disbarred.

Bar Counsel reported the Maryland Court of Appeals' order to the D.C. Court of Appeals (the "Court"), which suspended Respondent and directed us to recommend whether reciprocal discipline should be imposed. There is no evidence that Respondent actually received notice of these reciprocal disciplinary proceedings. The Board made several attempts to provide written notice of the pending reciprocal proceedings through Respondent's office and home addresses listed in the D.C. Bar records, but all such attempts were unsuccessful. All mailings from the Board to Respondent were returned by the Postal Service, marked as "undeliverable as addressed--return to sender" or "return to sender--attempted--not known--unable to forward."

Some form of reciprocal discipline is plainly appropriate. There is a "rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). That presumption may be overcome if the record demonstrates, by clear and convincing evidence, the applicability of one of the exceptions set forth in D.C. Bar R. XI, § 11(c). Respondent has not participated at all in these *fn6 proceedings--not having received notice of the proceeding nor having supplied the Bar with an address where he may be reached--and certainly has not argued that any of those exceptions apply. *fn7

There is no serious doubt, based on the evidentiary record compiled in the Maryland courts, that Respondent committed at least some misconduct that would be sanctionable in the District of Columbia. His unexplained abandonment of his clients, without returning any of the unearned advance payment, would have violated, at a minimum, our Rules 1.3(a), 1.4(a) and 1.16(d). By itself, that misconduct would likely warrant a short suspension in this jurisdiction. See In re Lewis, 689 A.2d 561 (D.C. 1997) (ordering 30-day suspension where attorney entered appearance in a criminal case and then took no efforts on behalf of his client, but where attorney offered mitigating evidence).

We also believe that a fitness requirement is in order, even just for those violations. Respondent's conduct, both as to his abandonment of his clients and his nonparticipation in the disciplinary proceedings here and in Maryland, is bizarre on its face. Without an explanation--which of course he has not offered--we have absolutely no assurance that Respondent should be trusted with the representation of clients in the future. While, as we discuss below, we are not certain that Respondent's disappearance and failure to respond to Maryland Bar Counsel's investigation is independently sanctionable, protection of the public requires further inquiry before Respondent resumes practice. As part of the fitness inquiry, Respondent should submit evidence explaining why he disappeared, whether that disappearance affected any other clients, whether any impact on any other clients has been ameliorated, whether any conditions that led to that disappearance have abated, and what steps he has taken to avoid similar action in the future. In addition, Respondent should be required to demonstrate that he has refunded the advance payment, which the Maryland Circuit Court found he had not earned. *fn8

The more difficult question is whether Respondent's unexplained failure to respond to Maryland Bar Counsel's investigation would have violated our Rule 8.1(b) or 8.4(d) as well. In light of our conclusion that Respondent should be suspended for 30 days and subjected to a fitness requirement for the violations discussed above, we do not believe it is necessary to reach a definitive conclusion on those questions. The answer would not materially affect our sanction recommendation, for even if violations of those Rules were also established, we would recommend the same sanction of a 30 day suspension with fitness. A definitive answer should await a case in which such a violation would make a material difference, but as explained in the attached footnote, should the Court reach this issue, we would not recommend that Respondent be found to have violated Rule 8.1(b) or Rule 8.4(d). *fn9

Accordingly, we recommend that Respondent be suspended for 30 days, and that before resuming the practice of law, he be required to demonstrate his fitness to practice law, and that he has refunded the advance payment to the complainants.

BOARD ON PROFESSIONAL RESPONSIBILITY

Paul R.Q. Wolfson

Dated: July 25, 2003

All Members of the Board join in this Report and Recommendation.


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