The opinion of the court was delivered by: Reid, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 012-02).
Before REID, Associate Judge, and WAGNER*fn1 and NEBEKER, Senior Judges.
In this reciprocal discipline case, the Board on Professional Responsibility ("the Board") has recommended that Respondent, George Edelstein, be disbarred based on discipline imposed by the United States District Court for the Southern District of New York. Mr. Edelstein takes exception to the Board's recommendation, claiming primarily that reciprocal discipline should not have been imposed under D.C. Bar R. XI, § 11 (c)(1) and (2) because the New York ethics process violated his constitutional right to due process, and because there was an "infirmity of proof" with respect to the New York ethics panel's conclusion that his conduct was prejudicial to the administration of justice. He does not, however, challenge the Board's recommended sanction of disbarrment.
Our review of the record does not support Mr. Edelstein's contentions. Therefore, we accept the Board's recommendation for reciprocal discipline.
The record before us shows that Mr. Edelstein's disbarrment in New York grew out of his representation during a period between 1991 and early 1993 of a criminal defendant who became a confidential government informant.*fn2 Mr. Edelstein made personal loans to this individual which amounted to $20,000.00. Respondent's disbarrment also was related to his representation of another criminal defendant, Bartolome Moya, beginning sometime around July 1994. On July 20, 1994, Mr. Moya, disappeared and a warrant was issued for his arrest, due to his violation of his bail conditions. Mr. Edelstein told federal law enforcement officials that he did not know the whereabouts of Mr. Moya.
Mr. Edelstein met with the confidential informant in August 1994, and offered to disclose the whereabouts of Mr. Moya if the confidential informant would seek payment of $30,000.00 from the government in exchange for this information, and then in turn, would repay the $20,000.00 that Mr. Edelstein had lent to him. Subsequently, Mr. Edelstein increased the amount that the confidential informant should seek from the government to $100,000.00 so that he could provide a "top dollar" defense in his representation of Mr. Moya. Mr. Edelstein asked the confidential informant not to tell the government the source of the information disclosing Mr. Moya's whereabouts, and that if any question should be raised, Mr. Edelstein would say that he disclosed the whereabouts of Mr. Moya because Mr. Moya required medical attention. The conversation in which Mr. Edelstein demanded $100,000.00 was recorded by the confidential informant.
Later, Mr. Moya was captured, without assistance from Mr. Edelstein's information. On October 26, 1994, an Assistant United States Attorney sent a letter to the Chief Judge of the United States District Court for the Southern District of New York in which he informed the court of "what appears to be an actual conflict of interest presented by [Mr.] Edelstein's continued representation of defendant Bartolome Moya." On that same day, the Honorable Thomas P. Griesa of the United States District Court for the Southern District of New York held a hearing during which government counsel moved to disqualify Mr. Edelstein from Mr. Moya's case. When Judge Griesa asked Mr. Edelstein about the taped conversation of Mr. Edelstein's demand for $100,000.00 Mr. Edelstein said, in part, that the government had "sent a confidential informant . . . to offer me money to disclose Mr. Moya's whereabouts." Mr. Edelstein stated that he "played along," and that the confidential informant had "displayed . . . [a] .32 millimeter semi-automatic pistol." He maintained that he called the FBI, spoke with an agent, told the agent that Mr. Moya owed him $23,000.00 and had revealed a gun to him, and that he -- Mr. Edelstein -- did not know Mr. Moya's location. Mr. Edelstein asserted that he "was just playing the game . . . [t]o find out how far the government would go in trying to compromise [him] and trying to fish information out of [him] about [his] client."
Judge Griesa did not make factual findings at the October 26, 1994 hearing, but stated that "whether [Mr. Edelstein made] a genuine effort to obtain money for [himself], or whether [he was] simply engaging in some kind of ruse to lead [the confidential informant] on, this was not an investigation to get evidence about witnesses who knew what Mr. Moya had or had not done." Rather, Mr. Edelstein's encounter with the confidential informant "relate[d] to George, Edelstein," and the judge found it "very difficult to see how this was something that should have been carried on by [Mr. Edelstein], even if what [he said was] correct." On November 10, 1994, Judge Griesa disqualified Mr. Edelstein from representing Mr. Moya. He noted that Mr. Edelstein was a "court-appointed attorney" and that whether "court-appointed or privately retained, the Court has the duty . . . to excuse Mr. Edelstein from the case and to appoint new counsel" because "Mr. Edelstein has entered into discussions which raise questions about his own conduct, and therefore he now has a personal stake" in one "aspect" of Mr. Moya's case. Given his personal stake, Mr. Edelstein would not "be able to devote [his] energy and attention solely and exclusively for the benefit of the client."
The ethics matter was referred to New York disciplinary authorities. On September 18, 1995, Mr. Edelstein appeared for a deposition before the Departmental Disciplinary Committee, First Judicial Department, Supreme Court, Appellate Division. He explained that initially he was retained by Mr. Moya's family to represent him with respect to "[m]urder, kidnaping and drugs in a RICO setting," and subsequently was appointed by the court. Eventually the Chair of the Committee on Grievances for the Southern District of New York designated a panel of attorneys to hear the charges against Mr. Edelstein. The Statement of Charges was sent to Mr. Edelstein on July 15, 1996, and he was required "to show cause why discipline should not be imposed . . . ." Mr. Edelstein sought a delay in the proceedings because of his July 1996 open heart surgery. Further delays occurred when Mr. Edelstein presented a medical certificate to the Committee in December 1996, reporting his hospitalization for "Major Depression Disorder." Delays continued into 1997, 1998 and 1999. An amended statement of charges was filed in March 1999, and Mr. Edelstein was ordered to show cause why discipline should not be imposed based on the amended statement of charges.*fn3 In a letter of April 6, 1999, which sought summary judgment, or in the alternative, the dismissal in particular of charges 3 and 4, Mr. Edelstein challenged the following sentence that appeared in both of these charges: "Alternatively, if respondent did not know the whereabouts of [Mr.] Moya, the conduct alleged [herein] violates DR 1-102 (A) (5) of the Code of Professional Responsibility of the New York State Bar Association which prohibits a lawyer to '[e]ngage in conduct that is prejudicial to the administration of justice.'" He contended in his April 6, 1999 letter that the alternative charge "is so vague that it is impossible to address it in any meaningful way."
On April 16, 1999, a brief in support of the statement of charges was filed by the prosecuting attorney, and Mr. Edelstein was asked to serve reply papers as quickly as possible so that the ethics panel would receive the reply before his hearing took place on April 26, 1999. The chairperson of the panel left telephone messages inquiring whether the respondent intended to file a reply brief. Apparently in response to these messages, Mr. Edelstein sent a communication, including a legal argument, stating that he did not intend to file a reply. He did not appear at the April 26 hearing, and the panel advised him that the hearing would be reconvened on May 3, 1999. Mr. Edelstein did not appear on May 3. Instead he sent a communication by fax declining to attend the hearing, indicated reasons for not doing so, and included character letters.
Based upon documentary evidence, including the proceedings in Mr. Moya's case, Mr. Edelstein's answer to the statement of charges against him as well as his letters to the ethics panel, and exhibits submitted at the March 26 and May 3, 1999 hearings, the ethics panel made findings establishing Mr. Edelstein's violation of most of the charges against him, including DR 1-102 (A)(5) concerning "conduct that is prejudicial to the administration of justice." The panel recommended disbarrment. He was disbarred from the United States District Court for the Southern District of New York on October 21, 1999; the United States Court of Appeals for the Second Circuit on January 10, 2000; and on February 5, 2002, the Appellate Division of the Supreme Court of New York, First Judicial Department barred him "from the practice of law in any form," and also prohibited him from "appear[ing] as an attorney and counselor-at-law before any court, judge, justice, board, commission or other public authority . . . ." in New York. After receiving notice of his disbarrment in New York, by order dated February 28, ...