Before Terry, Schwelb and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 212-01 and 272-01)
The principal question in this case is whether an attorney's voluntary and unsupervised "self-suspension" while disciplinary proceedings against her were pending warranted her reinstatement earlier than would otherwise have been appropriate. Here, the Board on Professional Responsibility has recommended that respondent Julia A. Soininen receive a nunc pro tunc six-month suspension, to run from the date she filed an affidavit in which, inter alia, she disclosed her decision to suspend herself. If we were to follow the Board's recommendation, Ms. Soininen's suspension would therefore already have been served by the time the order proposed by the Board would be issued by this court. Assuming, without deciding, that there exist some unusual scenarios under which more expeditious reinstatement may properly be based on a purported self-suspension, as here proposed by the Board, cf. In re McLain, 671 A.2d 951, 954 n.4 (D.C. 1996) (questioning this assumption), we conclude that Ms. Soininen has neither complied with the notice requirements applicable to suspended attorneys nor demonstrated the existence of "unique" or "compelling" circumstances on which a successful request for such favorable treatment would have to be based. Id. Accordingly, Ms. Soininen shall be suspended from practice for six months, the suspension to commence thirty days after the date of this order. See D.C. Bar R. XI, § 14 (f).
On September 9, 1999, this court placed Ms. Soininen, a member of our Bar, on interim suspension pursuant to D.C. Bar R. XI, § 10 (c), following her convictions in Virginia of theft and of possession of a controlled substance. In re Soininen, 783 A.2d 619, 621 (D.C. 2001) (Soininen I). On October 25, 2001, we suspended Ms. Soininen for thirty days, but stayed the suspension and placed Ms. Soininen on probation for two years. Id. at 622.*fn1
The present proceeding -we shall refer to it as Soininen II -concerns Ms. Soininen's unauthorized practice of law and her filing of false notices of appearance before the Executive Office for Immigration Review (EOIR), the Board of Immigration Appeals (BIA), and the Immigration Court, all during the period when she was subject to this court's order of interim suspension in Soininen I. Ms. Soininen also represented to*fn2 clients in immigration matters, and to persons whom she represented before the United States Department of Labor (DOL), that she was a member of the District of Columbia Bar in good standing, when in fact she was not.
The Board has recommended that Ms. Soininen be suspended for six months, but has proposed that the suspension should run nunc pro tunc to April 18, 2002, the date when Ms. Soininen filed an affidavit with the Board in which she asserted that she had refrained from the practice of law in the District of Columbia since September 9, 1999, and in which she further represented that, even though she was no longer under suspension, she would not practice law until the proceedings in Soininen II had been completed. Bar Counsel has excepted to the Board's recommendation, urging that the suspension be prospective. Because, inter alia, Ms. Soininen had not refrained from the practice of law in the District since September 1999; because, during her suspension, she made false, inaccurate, and misleading representations to this court, to other agencies, and to clients; because Ms. Soininen has not complied with the notice requirements for suspended attorneys contained in D.C. Bar R. XI, § 14; because Ms. Soininen has failed to show the existence of unique or compelling circumstances; and because her self-suspension was unsupervised and not susceptible of supervision, we agree with Bar Counsel that nunc pro tunc treatment is not warranted.
On March 28, 2002, Bar Counsel filed a petition alleging that Ms. Soininen had violated the following District of Columbia Rules of Professional Conduct: Rule 3.3 (a)(1) (knowing false statement of material fact to a tribunal); Rule 5.5 (a) (practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction); Rule 8.4 (c) (dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4 (d) (serious interference with the administration of justice). An evidentiary hearing was held on May 20, 2002, before Hearing Committee No. 7. Bar Counsel introduced into evidence several exhibits and stipulations between the parties. Ms. Soininen testified on her own behalf.
On November 12, 2002, the Hearing Committee issued a Report and Recommendation in which it found by clear and convincing evidence that Ms. Soininen had violated Rules 3.3 (a)(1), 5.5 (a), and 8.4 (c). The Hearing Committee recommended that no suspension be imposed for the violations stemming from Ms. Soininen's misconduct before the immigration courts, reasoning that she had already served a sufficient suspension for her misconduct. The Hearing Committee also recommended that Ms. Soininen be informally admonished by Bar Counsel or, in the alternative, that she be reprimanded by the Board, for her misstatements to clients respecting her Bar status. Bar Counsel excepted to the proposed sanction, contending instead that Ms. Soininen should be suspended for one year.*fn3
On July 25, 2003, following briefing by the parties and oral argument, the Board issued its Report and Recommendation. The Board adopted the Hearing Committee's findings with respect to Ms. Soininen's violations, but also concluded that she had violated Rule 8.4 (d). The Board recommended that the court impose a six-month suspension*fn4 nunc pro tunc to April 18, 2002. Bar Counsel filed an exception, again objecting to the recommendation that Ms. Soininen's suspension be nunc pro tunc.
The historical facts underlying this disciplinary proceeding are, for the most part, undisputed. Ms. Soininen acknowledges, and the evidence establishes, that she engaged in the unauthorized practice of law before immigration courts at a time when she was subject to this court's order of interim suspension in Soininen I. Ms. Soininen likewise admits that she falsely represented herself to be a member of the Bar, over a period of almost a year, in five separate notices of appearance filed with the EOIR, and she acknowledges that the last of these misrepresentations was purposeful and deliberate. Further, she does not deny that in letters to clients written after she knew that she was precluded by her suspension from practicing immigration law, Ms. Soininen effectively held herself out to be an attorney who was authorized to continue to represent these clients, when in fact she was not. Finally, while suspended from practice, Ms. Soininen practiced law before the Department of Labor (DOL); the uncontradicted evidence shows (though the Hearing Committee and Board did not find) that she represented to that agency and to her DOL clients that she was a member in good standing of the District of Columbia Bar when in fact she was not, and that she purported to represent the clients as an attorney when she was authorized to represent them only as a non-attorney agent.
(1) Facts relating to Soininen I.
On April 15, 1999, Ms. Soininen was arrested on a charge of driving while intoxicated. Soininen I, 783 A.2d at 620. Thereafter, on the evening of April 28, 1999, she was arrested for stealing flowers and potting soil, with a cumulative value of less than $200, from a nursery at which she had stopped after attending an Alcoholics Anonymous meeting. When Ms. Soininen was arrested, she was in possession of a Schedule III controlled substance, the painkiller Vicodin, without a valid prescription. Id. On May 24,*fn5 1999, Ms. Soininen entered a plea of guilty to driving while intoxicated. On the following day, she entered a separate guilty plea to theft and to the unlawful possession of a controlled substance. The court imposed a fine for these offenses, and Ms. Soininen was also sentenced to serve a ninety-day period of incarceration. However, the execution of the sentence of imprisonment was suspended, and Ms. Soininen was placed on probation. Id.
On June 19, 1999, Ms. Soininen reported her convictions to the Board. On September 9, 1999, this court suspended Ms. Soininen on an interim basis pursuant to D.C. Bar R. XI, § 10 (c), and directed the Board to determine whether the offenses committed by Ms. Soininen involved moral turpitude. The case was referred to Hearing Committee No. 1, and following an evidentiary hearing, the Committee concluded that the underlying conduct did not involve moral turpitude. Id at 621. The Hearing Committee found that*fn6 Ms. Soininen had violated Rule 8.4 (b) (commission of criminal act reflecting adversely on honesty, trustworthiness or fitness) and Rule 8.4 (c) (dishonesty). The Committee concluded, however, that Ms. Soininen qualified for mitigation pursuant to In re Kersey, 520 A.2d at 325-28, on the basis of her addiction to alcohol and prescription drugs. Soininen I, 783 A.2d at 621. The Hearing Committee recommended that Ms. Soininen be*fn7 suspended from practice for thirty days, but that the suspension be stayed and that she be placed on probation for two years, the probation to be conditioned upon Ms. Soininen's maintaining her sobriety, with appropriate monitoring and reporting.
The Board on Professional Responsibility adopted the Hearing Committee's Report and Recommendation. Neither Bar Counsel nor Ms. Soininen excepted to the Board's proposed disposition. On October 25, 2001, in conformity with the unopposed recommendation of the Board, this court suspended Ms. Soininen from practice for thirty days, stayed the execution of the suspension, and placed Ms. Soininen on probation for two years, subject to the conditions of probation recommended by the Board. Id. at 622.
(2) Ms. Soininen's unauthorized practice of law during the period of interim suspension in Soininen I.
(a) September 1999 through January 2001.
Following the court's September 9, 1999 order of interim suspension, Ms. Soininen curtailed her practice of law in District of Columbia courts, and she discontinued her former pro bono and probate practice. However, solely upon the advice of her attorney that immigration law was administrative law, and that she therefore did not have to be "a member in good standing" of the Bar to practice it, Ms. Soininen continued her practice before the immigration courts. Ms. Soininen did not disclose to her attorney, prior to receiving this advice, that in notices of appearance before immigration courts, she was required to represent that she was a member of the Bar in good standing and that she was not subject to any suspension order. Moreover, although Ms. Soininen was an immigration lawyer herself, and although she had originally believed, prior to receiving her counsel's advice, that the suspension order barred her from practicing immigration law, she accepted her attorney's opinion -one that was obviously very much to her advantage -without personally looking into the issue at all.
Predictably, the advice given to Ms. Soininen by her attorney, which ought to have sounded too good to be true, turned out to be fallacious. In order to be authorized to practice before the immigration courts, an attorney must be "a member in good standing of the [B]ar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia, and [must not be] under any order of any court suspending, enjoining, restraining, disbarring or otherwise restricting [her] in the practice of law." 8 C.F.R. §§ 1.1 (f), 292.1 (a)(1) (2001). Ms. Soininen thus violated this court's interim suspension*fn8 order by practicing before the immigration courts. Even the most rudimentary research would have disclosed this uncontroversial reality if Ms. Soininen had taken the trouble to conduct it.
During her interim suspension, Ms. Soininen also falsely represented to her clients in immigration matters that she was licensed to practice law, when in fact she was not. In retainer agreements, she identified herself as "Attorney at Law," "Abogado," and "Esq." The last retainer agreement in which she represented herself to be an attorney in this manner was dated January 24, 2001, sixteen days after she intentionally made a false representation to the EOIR, described below, with regard to whether she was a member in good standing of the Bar.
On January 14, 2000, January 18, 2000, April 18, 2000, August 30, 2000, and January 8, 2001, Ms. Soininen filed notices of appearance with the EOIR. These documents were form notices which had been completed by office assistants prior to Ms. Soininen's suspension and which were then copied for use in connection with the representation of individual clients. Each time Ms. Soininen filed a new notice of appearance, the partially completed form notice was photocopied, and the new client's name and address were added. Ms. Soininen and the client then signed the form. By signing the document, and by checking the appropriate box (or by having it checked for her), Ms. Soininen represented that she was a member in good standing of the District of Columbia Bar, and that she was not subject to "any order of any court . . . suspending" her from the practice of law. On all five occasions, each of these representations was, of course, false.
Ms. Soininen acknowledges that in the January 8, 2001 notice of appearance, she deliberately concealed the fact of her suspension and falsely represented that she was authorized to practice law. According to Ms. Soininen, she was concerned that if she had disclosed that she was not a member of the Bar in good standing, she would have been obliged to withdraw from the case, to the prejudice of her client. When Ms. Soininen*fn9 purposely decided, on January 8, 2001, to lie to the tribunal before which she was appearing, she must necessarily also have realized the obvious: the four forms that she had previously submitted contained the same false information regarding her bar status that she deliberately included in the fifth. Nevertheless, Ms. Soininen took no action to correct the four earlier notices, thus purposely perpetuating, rather than putting an end to, her past deceptions.
(b) January 2001 through June 2001.
In early January 2001, Ms. Soininen learned for certain what she should have realized from the outset, namely, that her continued practice of immigration law contravened this court's order of interim suspension. On January 11, 2001, Ms. Soininen consulted her attorney. On the following day, she received a letter from the attorney advising her that her continued practice before the INS was in apparent violation of INS regulations and that it might constitute the unauthorized practice of law. Counsel recommended that Ms. Soininen notify the INS of her criminal convictions and of this court's interim order suspending her from practice. Ms. Soininen did not, however, immediately terminate her unauthorized practice. Instead, she urged her employer, Capitol Immigration Services (CIS), to find another attorney to take over her cases. She recommended two attorneys whom she believed to be qualified, but nobody was hired to replace her. Finally, on June 13, 2001, Ms. Soininen resigned from CIS and took a position as a legal assistant with a firm in Falls Church, Virginia.
During the period from January to June 2001, Ms. Soininen did not file any pleadings or other submissions on behalf of a client in any court, but she continued to work on her CIS cases. On June 12, 2001, the General Counsel of EOIR issued a notice*fn10 informing Ms. Soininen that disciplinary action was to be taken against her. On the next day, following her resignation from CIS, Ms. Soininen wrote letters to each of her CIS clients on the stationery of the Falls Church firm. In these letters, Ms. Soininen identified herself as "Esq." - a title suggesting that she was an attorney at law - and she did not disclose that she had been suspended from practice or that she was no longer authorized to serve as the clients' attorney in pending immigration matters. Instead, Ms. Soininen informed the CIS clients that her new firm would welcome any former clients of her former employer, and that "I look forward to continuing to serve your immigration needs." It is*fn11 thus indisputable that almost half a year after she learned that her immigration practice was contrary to the suspension order, Ms. Soininen attempted to conceal her suspended status from her clients by implying that she was still authorized to practice immigration law.
All of the foregoing conduct occurred while Ms. Soininen's interim suspension in Soininen I was in effect. On October 25, 2001, however, this court decided Soininen I on the merits, suspended Ms. Soininen from practice for thirty days, stayed the suspension pursuant to Kersey, and placed her on probation for two years. The court's order ended the interim suspension that had previously ...