December 30, 2004
IN RE JOHN L. MCGANN, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS
(BAR REGISTRATION NO. 114561)
Before Farrell and Reid, Associate Judges, and Belson, Senior Judge.
On Report and Recommendation of the Board on Professional Responsibility (BDN 397-01)
On September 18, 2001, the Virginia State Bar Disciplinary Board imposed a public reprimand upon the respondent,*fn1 along with the condition that he take certain continuing education courses, after finding that he had represented multiple criminal defendants facing prosecution arising out of the same matter, even though the clients' interests were in conflict. When respondent did not immediately comply with the conditions, he was temporarily suspended by Virginia. After he complied, he was reinstated and no further action was taken by Virginia.
Bar Counsel notified us of this action, and pursuant to D.C. Bar R. XI, § 11 (d), we referred the matter to the Board on Professional Responsibility ("Board") for a determination of whether identical, greater, or lesser discipline should be imposed as reciprocal discipline, or whether the Board would proceed de novo. Bar Counsel originally urged different discipline. TheBoard agreed, and now recommends that we suspend respondent for 30 days as the appropriate reciprocal discipline. Bar Counsel has not taken exception to the Board's report and recommendation, and respondent has not filed a response.*fn2
Our review in uncontested disciplinary cases is limited and the presumption is in favor of identical reciprocal discipline. See In re Goldsborough, 654 A.2d 1285 (D.C. 1995); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992); D.C. Bar R. XI, § 11 (f). Respondent's conduct in Virginia demonstrated a patent conflict of interest (in violation of D.C. Bar Rule 1.7 (b)(2) and (3)), prejudiced his clients, and was compounded by a serious failure to communicate with them (in violation of D.C. Bar Rule 1.4 (a)). These violations, if committed here under different circumstances, might have warranted the imposition of a public censure.*fn3 However, in this case respondent does not have an unblemished ethical record; to the contrary, he has had prior discipline (for commingling of personal and client funds) which demonstrates a continuing failure to comply with well-known and unmistakable ethical obligations.*fn4 Further, in this case the underlying conflict of interest was obvious.*fn5 Therefore, in this case the more appropriate sanction is a short suspension.
Since no exception has been taken to the Board's recommendation, we give heightened deference to it. See D.C. Bar Rule XI, § 9 (g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997). Moreover, as there is substantial support in the record for the Board's findings, we accept them and adopt the recommended sanction because it is not inconsistent with discipline imposed in similar cases.*fn6 We also note that respondent has failed to file the affidavit required by D.C. Bar R. XI, § 14 (g) in his earlier disciplinary case, N. 94-BG-1221 (BDN 390-94); therefore, this discipline will run consecutively to his suspension in the earlier case. Accordingly, it is
ORDERED that John L. McGann is hereby suspended for 30 days to run consecutively to his earlier suspension in No. 94-BG-1221 (BDN 390-94). Moreover, since respondent has not filed the affidavit required by D.C. Bar R. XI, § 14 (g) in either of these matters, we direct his attention to the requirements of that rule and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16 (c).