On Report and Recommendation of the Board on Professional Responsibility (BDN 271-04).
Before Ruiz and FISHER, Associate Judges, and NEBEKER, Senior Judge.
In this reciprocal disciplinary proceeding against respondent, John R. Fuchs, the Board on Professional Responsibility has recommended that identical reciprocal discipline, specifically one-year suspension, stayed for two years of unsupervised probation, be imposed. Respondent objects and argues, among other things, that it would be unjust to discipline him for acts done in excess of ten years ago in another jurisdiction and for which he has already fulfilled all of the terms and conditions of his probation imposed by the State Bar of California and his probation terminated as of July 18, 2003.
On March 16, 2001, the Supreme Court of California suspended the respondent for one year, stayed the suspension, and placed respondent on three years of probation*fn1 with certain conditions.*fn2 Respondent's probation was based on a stipulation to a violation of CAL. BUS. & PROF. CODE § 6068 (c) (duty as an attorney "to counsel or maintain those actions, proceedings or defenses only as appear to him or her legal or just").*fn3 The reason for the delay of action in this jurisdiction is due to the respondent's failure to report the California discipline to the District of Columbia Bar Counsel ("Bar Counsel") in violation of D.C. Bar R. XI, § 11 (b). Instead, Bar Counsel was notified of the California Order of Discipline from the American Bar Association's National Lawyers Regulatory Bank.
Upon receiving notice of the California discipline from Bar Counsel, the court directed the Board to recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline or whether the Board instead elects to proceed de novo. (Order, In re Fuchs, D.C. Aug. 3, 2004). Respondent failed to respond in any way to the court's August 3, 2004 show cause order, the July 30, 2004 letter from the Board, or to Bar Counsel's statement filed on November 5, 2004. On April 27, 2005, the Board found that respondent's stipulation to a violation of CAL. BUS. & PROF. CODE§ 6068 (c) is analogous to a violation of D.C. R. Prof. Conduct 3.1, "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law." Thus, the Board recommends identical reciprocal discipline and that the court should order one year suspension, stayed in favor of two years of unsupervised probation subject to the conditions of probation imposed in California, and a requirement that respondent provide proof that he has complied with the probation conditions imposed in California.*fn4
On July 12, 2005, respondent filed his exception to the Report and Recommendation of the Board, specifically arguing that the imposition of the same discipline by the court would result in grave injustice pursuant to D.C. Bar R. XI, § 11 (c)(3). In both his brief and reply, respondent is attempting to relitigate the disciplinary proceedings in California where he did not contest the charges. Moreover, respondent's main contention is that because he has fulfilled all the conditions of his probation in California and the probationary period imposed there has ended, he should not be disciplined in the District of Columbia. However, respondent fails to acknowledge that the delay in the disciplinary proceedings in this jurisdiction was due to respondent's own failure to notify Bar Counsel as required by Rule XI, § 11 (b).
Rule XI, § 11 (c) establishes the standards for reciprocal discipline and provides as follows:
Reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that:
(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 as final the conclusion on that subject; or
(3) The imposition of the same discipline by the Court would result in grave injustice; or
(4) The misconduct established warrants substantially different discipline in the ...