Before Schwelb and Farrell, Associate Judges, and Newman, Senior Judge.
On Report and Recommendation of the Board on Professional Responsibility (BDN423--01)
On September 18, 2002, Bar Counsel charged Andrew M. Steinberg, a member of our Bar, with violating the following Rules of Professional Conduct:
Rule 8.4(d), by engaging in conduct that seriously interfered with the administration of justice;
Rule 8.1(b), by failing to respond reasonably to a lawful demand for information from a disciplinary authority, namely, the Office of Bar Counsel; and Rule XI, § 2(b)(3), by failing to comply with an order of the Board on Professional Responsibility issued in connection with disciplinary proceedings.
On February 25, 2003, following an evidentiary hearing, an Ad Hoc Hearing Committee found by clear and convincing evidence that Steinberg had violated each of these rules. The Hearing Committee recommended that Steinberg be suspended from practice for thirty days and that he be required to demonstrate fitness to practice as a condition of reinstatement. A copy of the Hearing Committee's Report and Recommendation is attached hereto and made a part of this opinion.
Steinberg excepted to the Hearing Committee's recommendation, contending that he had ultimately cooperated with Bar Counsel and had acted in good faith. Steinberg further asserted that the discipline imposed by the court for his prior violations, see In re Steinberg, 720 A.2d 900 (D.C. 1998) (per curiam) (Steinberg I), and In re Steinberg, 761 A.2d 279 (D.C. 2000) (per curiam) (Steinberg II), had been too severe, and that the sanction recommended by the Committee in this case was likewise excessive.
On July 30, 2003, the Board on Professional Responsibility issued its Report and Recommendation. The Board adopted most of the Hearing Committee's proposed findings, but disagreed with the Committee with respect to the appropriate sanction. Specifically, the Board proposed that Steinberg be suspended from practice for sixty days, but declined to recommend that he be required to demonstrate fitness as a condition of reinstatement.
Bar Counsel filed an exception to the Board's recommendation, contending that a "fitness" requirement should have been imposed.*fn1 We are required to accord the Board's recommendation substantial deference, see D.C. Bar R. XI, § 9 (g)(1), but "[i]n the final analysis, the responsibility to discipline lawyers is the court's. The buck stops here." In re Shillaire, 549 A.2d 336, 342 (D.C. 1988). In our judgment, the issues raised in this case were correctly analyzed by the Hearing Committee, and we adopt the Committee's Report and Recommendation. We note, in particular, that in Steinberg II, which involved violations very similar to those in the present case, a different Hearing Committee had also proposed that Steinberg be required to demonstrate fitness, but the Board had recommended that no such requirement be imposed. This court adopted the Board's recommendation, but emphasized that attorneys cannot be allowed to willfully ignore and frustrate the efforts of Bar Counsel and the Board to obtain responses to charges of serious ethical misconduct. Attorneys must know that if they choose this course of action, the consequences will be severe.
We agree entirely with the Hearing Committee's discussion of the appropriate sanction. As the Committee aptly noted in this case, "[i]n light of Respondent's repeated failures, the consequences should now be more severe." Given Steinberg's disciplinary history, and, in particular, his disregard of the quoted warning in Steinberg II and his repetition of his misconduct in that case, we do not believe that a sixty-day suspension, without a requirement of proof of fitness, can reasonably be reconciled with that clear warning.
Accordingly, Steinberg is hereby suspended from the practice of law for thirty days, and reinstatement shall be conditioned on proof of fitness to practice law."*fn2 We once again direct Steinberg's attention to the requirements of D.C. Bar R. XI, § 14, which set forth the responsibilities of suspended attorneys, and to the consequences of noncompliance with these requirements, as set forth in D.C. Bar R. XI, § 16. See Steinberg I, 720 A.2d at 901-02; Steinberg II, 761 A.2d at 280.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY AD HOC HEARING COMMITTEE
REPORT AND RECOMMENDATION
Before the Ad Hoc Hearing Committee are Bar Counsel's charges that Respondent failed to (1) answer investigative inquiries by Bar Counsel, and (2) respond to an order of the Board on Professional Responsibility (the "Board"). Specifically, Respondent is charged with violating the following Rules of Professional Conduct and Rule of the Court of Appeals Governing the Bar:
* Rule 8.4(d), by engaging in conduct that seriously interfered with the administration of justice;
* Rule 8.1(b), by failing to respond reasonably to a lawful demand for information from a disciplinary authority; and
* Rule XI, § 2(b)(3), by failing to comply with an order of the Board issued in connection with disciplinary proceedings.
On September 18, 2002, Bar Counsel filed with the Board her Specification of Charges and Petition Instituting Formal Disciplinary Proceedings in this matter. BX B.*fn4 These documents were personally served on Respondent on November 1, 2002. BX D. Respondent failed to file an answer by November 21, 2002, as required by Board Rule 7.5.
The parties attended a pre-hearing conference with the Committee Chair on December 6, 2002.*fn5 At the conference, Respondent requested permission to late-file his answer; he was directed to so move in writing. See Order of December 9, 2002. On December 10, 2002, Respondent moved in writing to late-file an answer. Given reasons of mistake and inadvertence cited by Respondent at the pre-hearing conference and Bar Counsel's explicit lack of objection to the late-filing, Respondent's motion was granted and his Answer to Charges, accompanied by proposed exhibits, was accepted for filing. See Order of December 12, 2002.
This matter was heard on December 20, 2002. At the hearing, written stipulations were presented to the Committee. Tr. at 6-7. The stipulations were filed with the Board on Professional Responsibility on the date of the hearing and included with Bar Counsel's exhibits as BX 8. Relying on the stipulations and her proposed documentary evidence, Bar Counsel did not call any witnesses in her case-in-chief. Tr. at 10. Bar Counsel's Exhibits A-D and 1-8 were received in evidence without objection. Tr. at 12-13. Respondent, appearing pro se, testified on his own behalf. Tr. at 14-51. Respondent offered Exhibits 1 and 2 into evidence, and such were received without objection.*fn6 Tr. at 69-70.
Bar Counsel called Michael Bozeman, an investigator with the Office of Bar Counsel, as a rebuttal witness. Tr. at 53-67.
At the conclusion of the hearing, the Committee announced is preliminary, non-binding determination that Bar Counsel had presented evidence sufficient to permit a finding of a violation of at least one of the alleged charges. Tr. at 68. Bar Counsel offered evidence of prior discipline in aggravation of the charges, and Bar Counsel's exhibits to this effect were received in evidence. BX 9-12; Tr. at 72. Respondent asked the Committee to consider in mitigation the health of Respondent's former spouse and his resulting responsibilities. Tr. at 27, 70-71.
Following the hearing, the Committee Chair requested post-hearing briefs filed according to the briefing schedule prescribed by Board Rule 12.1.*fn7 Tr. at 73. Bar Counsel timely filed Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction on January 21, 2003.*fn8 Respondent did not timely file a post-hearing brief by the February 3, 2003, due date or at any time thereafter.
Upon consideration of all of the evidence and Bar Counsel's post-hearing submissions, the Hearing Committee finds that Respondent violated Rules 8.4(d) and 8.1(b) of the Rules of Professional Conduct, and Rule XI, § 2(b)(3), of the Rules of the Court of Appeals Governing the Bar. With respect to sanction, Bar Counsel asks that we recommend that Respondent be suspended for 30 days and required to show fitness to practice law prior to reinstatement.*fn9 For the reasons stated below, the Committee recommends that Respondent be suspended for 30 days and required to demonstrate fitness to practice law prior to reinstatement.
PROPOSED FINDINGS OF FACT
1. Respondent is a member of the District of Columbia Bar, having been admitted on June 19, 1981, and assigned Bar number 350983. Stip. ¶ 1;*fn10 BX A.
2. Respondent has lived at 7767 Astrella Court, Springfield, Virginia 22152, since June 1, 1998, and this address is provided by Respondent to the District of Columbia Bar. Tr. at 14, 50.
3. A disciplinary complaint against Respondent by Terry Jodrie, M.D., was docketed as Bar Docket Number 423-01 on or about ...