On Report and Recommendation of the Board on Professional Responsibility (BDN-04-157).
BEFORE WASHINGTON, Chief Judge, FARRELL,Associate Judge, and NEBEKER, Senior Judge.
The Board on Professional Responsibility (the "Board") recommended that the respondent, George E. Kersey, a member of our Bar, be disbarred in the District of Columbia as reciprocal discipline from a New Hampshire proceeding. Kersey filed an exception to the Board's Report and Recommendation arguing that the discipline imposed by the Supreme Court of New Hampshire was improper and based on incorrect findings of law and fact. Despite Kersey's claims, we adopt the recommendation of the Board.
The respondent is a patent attorney who was admitted to the Bar of the District of Columbia by motion on March 17, 1981. The respondent is also a member of the Bars of New York and New Jersey, and was a member of the Bar of Massachusetts prior to July of 2005.*fn1 In re Kersey, 825 N.E.2d 994 (Mass. 2005). The original conduct leading to the New Hampshire disciplinary decision before this court is an outgrowth of the respondent's 1991 divorce in Vermont. The Family Court judge in that proceeding held Kersey in contempt on three occasions for "willful violations" of court orders. As a result of the contempt orders, a single justice of the Supreme Judicial Court for Suffolk County, Massachusetts ruled that the respondent's conduct violated three disciplinary rules and suspended him from practice in that jurisdiction for three months with an additional requirement that he purge himself of the contempt orders before reapplying for admission.*fn2 In re Kersey, 733 N.E.2d 545 (Mass. 2000). The respondent appealed that suspension to the full Supreme Judicial Court of Massachusetts, but the court affirmed the single justice's imposition of suspension. Id. Based on that sanction, this court imposed a reciprocal suspension of three months with a requirement that he show fitness for practice before seeking reinstatement in the District. In re Kersey, 775 A.2d 1106, 1107 (D.C. 2001) (per curiam).
On September 20, 2001, following the Massachusetts Court suspension, the respondent's home state of New Hampshire moved forward with reciprocal disciplinary action, levying a three-month suspension when the respondent failed either to address the Vermont contempt orders or to obtain readmission to the Massachusetts bar. Kersey's Case, 797 A.2d 864, 865 (N.H. 2002). In addition to the three-month suspension, the New Hampshire Supreme Court ordered the respondent to refrain from seeking any additional clients or cases and to surrender any client files that he was in possession of to a court-appointed attorney. Id. Despite assertions that he was not in possession of any active client files, the court-appointed attorney learned that the respondent had two cases pending before the United States District Court for the District of New Hampshire and one case before the New Hampshire Supreme Court. Kersey's Case, supra, 797 A.2d at 865-66. The respondent ignored repeated requests by the court-appointed attorney to turn over the client files and to comply with the court order, leading the New Hampshire Court to order the respondent to show cause why he should not be held in contempt. Id. The respondent answered the show cause order by arguing that his appearance before the New Hampshire Supreme Court did not fall under the purview of the court's order because he believed himself to be the real party in interest and acting pro se. Id.
On December 19, 2001, the New Hampshire Court referred this matter to a referee for a hearing to decide whether or not the respondent had violated a court order and should be held in contempt. Kersey's Case, supra, 797 A.2d at 865-66. The court ordered the respondent to appear with any "files relating to cases or matters in which he was currently performing work for clients . . . in state or federal courts in which he has filed an appearance." Id. The respondent attended the hearing but failed to bring any case files, leading to a finding by the referee that the respondent was in contempt for violating the earlier orders. Id. The New Hampshire Court adopted the findings and recommendations of the referee, referring the matter to the New Hampshire Professional Conduct Committee ("Committee") for disbarrment hearings. Id.
In September 2002, the Committee petitioned the Supreme Court of New Hampshire to disbar the respondent. Kersey's Case, 842 A.2d 121, 122 (N.H. 2004). The court again referred the matter to a referee who found by clear and convincing evidence that the respondent was in contempt of court and had violated New Hampshire Rules of Professional Conduct. Id. The New Hampshire Court, following oral argument, adopted the referee's findings and ordered that the respondent be disbarred. Kersey's Case, supra, 842 A.2d at 123.
On May 11, 2004, Bar Counsel filed with this court a copy of the New Hampshire disbarrment order, and on May 18, 2004, this court issued an order suspending the respondent on an interim basis.*fn3 The court directed the Board to recommend whether or not to proceed with reciprocal discipline or to proceed de novo, giving Bar Counsel thirty days to inform the Board of its position regarding reciprocal discipline and the respondent ten days thereafter to show cause why identical, greater, or lesser discipline would be appropriate. On May 27, 2004, the respondent wrote a letter to this court, Bar Counsel and the Board in an effort to comply with D.C. Bar R. XI, § 14 (g),*fn4 noting his new address in Massachusetts and stating that while he had not received the court's May 18 order, he was aware of it based on a phone conversation with the Board's Executive Attorney. Bar Counsel filed her statement on June 16, 2004, recommending disbarrment and sent a copy to the respondent to his known addresses in New Hampshire and Massachusetts.*fn5 Those mailed notices were not returned undelivered. The respondent had not filed a statement with the Board or participated in the Board proceedings, other than his letter of May 24, when the Board issued its report and recommendation on October 25, 2004.*fn6
Kersey contends that the Board's recommendation that he be disbarred is erroneous because the initial disciplinary decisions in Massachusetts and New Hampshire, were based on improper findings and that reciprocal discipline is inappropriate. "Under Rule XI, § 11 (c) of this court's Rules Governing the Bar, 'reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence,' that the case falls within one or more of five specifically enumerated exceptions."*fn7 In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). "The rule thus creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." Id. (citing In re Velasquez, 507 A.2d 145, 146-47 (D.C. 1986).
"We have . . . specifically held that an attorney waives the right to contest the imposition of reciprocal discipline when he or she does not oppose the proposed discipline before the Board or fails to respond to the court's show cause order." In re Holdmann, 834 A.2d 887, 889 (D.C. 2003) (citing In re Harper, 785 A.2d 311, 316 (D.C. 2001) ("treating an opposition filed for the first time in this court as equivalent to a timely response to the show cause order thwarts the operation of a disciplinary system that depends heavily on the Board's expertise in making recommendations")). When an attorney subject to discipline fails to participate in the proceedings before the Board, "the imposition of identical discipline should be close to automatic, with minimum review by . . . this court." In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002) (per curiam). This court should review a Board decision to impose reciprocal discipline only for "'an obvious miscarriage of justice'" when the "foreign discipline [is] not opposed at the Board level." Harper, supra, 785 A.2d at 316 (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)).
Kersey argues that all of the five exceptions to the imposition of reciprocal discipline apply to him because the New Hampshire Court did not heed his arguments that it lacked the jurisdiction to require production of files relating to matters before federal courts and that he was not engaged in the unauthorized practice of law in that state when he appealed solely to challenge an award against him personally. However, as Mr. Kersey neither responded to the court's show cause order nor participated in the Board proceedings, this court must ...