On Report and Recommendation of the Board on Professional Responsibility. (BDN 262-03).
Submitted September 29, 2005
Before RUIZ and KRAMER, Associate Judges, and KING, Senior Judge.
On July 30, 2003, the Court of Appeals of Maryland disbarred respondent, Scott G. Smith, a member of the bar of this court.*fn1 Bar Counsel notified us of this action and we temporarily suspended respondent on September 17, 2003, pursuant to D.C. Bar R. XI, § 11 (d), and 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.*fn2
The disciplinary petition in Maryland was founded on four separate complaints. It charged respondent with violations of the Maryland Rules of Professional Conduct ("Maryland Rules"), namely by failing to keep client property safe, knowingly failing to respond to a disciplinary authority, and engaging in misconduct.*fn3 It also alleged that he misused trust money and engaged in prohibited transactions.*fn4 The Maryland Court of Appeals found that respondent, in his role as escrow agent, received hundreds of thousands of dollars to be held in escrow to be returned to the depositors if the desired transactions did not take place. Instead, respondent improperly disbursed the funds to other persons for unauthorized uses. Respondent also failed to provide particular bank records pertaining to his escrow account sought by the Maryland disciplinary authorities. The Maryland Court of Appeals concluded that respondent should be disbarred because he had intentionally misappropriated client funds; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; failed to turn over pertinent financial records to Maryland Bar Counsel when requested during the disciplinary investigation; and misled Maryland Bar Counsel with regard to the status of the trust funds.
The Board recommends that this court impose identical reciprocal discipline of disbarrment. The Office of Bar Counsel has indicated that it does not take exception to the Board's recommendation. Respondent has filed a notice with this court that he pleads nolo contendere to the disbarrment.
There is a presumption in favor of identical reciprocal discipline, unless the respondent demonstrates, or the court finds on the face of the record, by clear and convincing evidence, that one or more of the five exceptions set forth in D.C. Bar R. XI, § 11 (c) applies. See In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003); In re Berger, 737 A.2d 1033, 1040-41 (D.C. 1999) (refusing to deviate from the rebuttable presumption that identical reciprocal discipline be imposed). When the imposition of reciprocal discipline is not contested by the respondent, the Board's role is restricted to reviewing the proceeding in the foreign court to be assured that no blatant miscarriage of justice would take place if reciprocal discipline were imposed. See In re Childress, 811 A.2d 805, 807 (D.C. 2002). The Board found no evidence of a miscarriage of justice. Respondent's misconduct in Maryland, namely misappropriation and dishonesty, if committed here, would justify disbarrment. See In re Roberson, 861 A.2d 1267, 1268 (D.C. 2004) (citing In re Addams, 579 A.2d 190 (D.C. 1990)(en banc) and In re Slattery, 767 A.2d 203 (D.C. 2001)).
Since this court gives heightened deference to the Board's recommendation where no exception has been taken, and as there is substantial support in the record for the Board's findings, we accept them and adopt the recommended sanction. See D.C. Bar R. XI, § 9 (g)(2); In re Deutchman, 861 A.2d 1275, 1276 (D.C. 2004); In re Steely, 806 A.2d 1236 (D.C. 2002); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997). Accordingly, it is
ORDERED that Scott G. Smith be disbarred from the practice of law in the District of Columbia.*fn5 Moreover, since respondent has not filed an affidavit which complies with D.C. Bar R. XI, § 14 (g), 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).