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In re Maio

March 2, 2006

IN RE LOUIS J. DE MAIO, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 151035)



The opinion of the court was delivered by: Fisher, Associate Judge

On Report and Recommendation of the Board on Professional Responsibility (BDN 94-04).

Submitted February 10, 2006

Concurring opinion by Associate Judge SCHWELB at p. 13.

Before SCHWELB and FISHER, Associate Judges, and PRYOR, Senior Judge.

In this reciprocal discipline proceeding against respondent Louis J. De Maio, the Board on Professional Responsibility ("Board") has recommended that respondent be suspended from the practice of law in the District of Columbia for eighteen months and required to demonstrate fitness prior to reinstatement. Although Bar Counsel initially urged that respondent receive the identical reciprocal discipline of disbarrment, the Board recommended otherwise, and Bar Counsel has informed us that he takes no exception to the report and recommendation of the Board.*fn1 Respondent opposed the Board's report and recommendation, and has filed many motions in this court, but he has not filed a brief. We adopt the Board's recommendation.

I.

The Maryland Court of Appeals disbarred respondent in 2004 after finding that in various court filings, he had made "false, spurious and inflammatory representations and allegations" against Chief Judge Joseph Murphy of the Maryland Court of Special Appeals and the Clerk of that Court. These statements and allegations began after Chief Judge Murphy issued an order to show cause why an appeal that respondent was handling should not be dismissed as premature. Respondent falsely claimed that the show cause order had not been signed by Chief Judge Murphy. Respondent then filed motions in which he took progressively more outlandish positions, contending that the Maryland courts had "refus[ed] to administer the law" and that their actions were "a violation of their oath of office" and demanding that all public officials involved in his case be "held accountable and responsible and, if necessary, removed from their public office." Respondent then filed a petition to remove Chief Judge Murphy from the court, making unfounded allegations that the judge was personally interceding in respondent's case on behalf of the insurance industry, that he had personally contacted the insurer without notifying respondent, and that Chief Judge Murphy and the Clerk of the Court were colluding to derail his action and remove respondent's briefs from case files. In subsequent filings, respondent made additional bizarre allegations, including that there were actually two different Maryland Courts of Special Appeals and two different Chief Judge Murphys -- one being a retired former Chief Judge -- and that the show cause order that spurred respondent's allegations was illegal because it did not say which Chief Judge Murphy had signed it.

After an investigation was completed and findings were submitted by Maryland's Bar Counsel, the Maryland Court of Appeals concluded that respondent's conduct violated Maryland Rules of Professional Conduct 1.1 (Competence), 3.1 (Meritorious Claims and Contentions), 3.3 (Candor Toward Tribunal), 8.2 (Judicial and Legal Officials), and 8.4 (Misconduct), as well as Rule 8.1 (for failure to cooperate in the Bar Counsel investigation). Maryland Bar Counsel recommended and the Maryland Court of Appeals ordered that respondent be disbarred. Attorney Grievance Comm'n of Md. v. DeMaio, 842 A.2d 802 (Md. 2004).

II.

Based on the findings and conclusions of the Maryland Court of Appeals, the Board has recommended that, rather than disbarrment, respondent receive a suspension of eighteen months with a requirement that he show fitness prior to reinstatement. Generally, we are required to "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record . . . ." D.C. Bar R. XI, § 9 (g). However, the Board's final determinations, whether they are characterized as findings of ultimate fact or conclusions of law, are owed no deference; our review is de novo. See In re Fair, 780 A.2d 1106, 1110-11 (D.C. 2001) ("we have the obligation to make our own determination on the issue"). This case, however, presents a reciprocal matter where another disciplinary court has made a final determination as to the respondent's conduct. In reciprocal discipline matters, D.C. Bar R. XI, § 11 (f)(2) provides that identical discipline will be imposed unless the attorney demonstrates, or the court finds on the face of the record, by clear and convincing evidence, one of the five exceptions set forth in D.C. Bar R. XI, § 11 (c). See also In re Goldsborough, 654 A.2d 1285, 1287 (D.C. 1995) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)).

Any of § 11 (c)'s exceptions, if established by clear and convincing evidence, will overcome the rebuttable presumption of identical reciprocal discipline:

(1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept ...


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