On Report and Recommendation of the Board on Professional Responsibility (BDN 080-04)
Before FARRELL and KRAMER, Associate Judges, and NEWMAN, Senior Judge.
In this reciprocal discipline proceeding, the Board on Professional Responsibility ("the Board") has concluded, as did the Maryland Court of Appeals, that respondent John W. Hermina violated Maryland Rules of Professional Conduct 3.3 (a)(1) (making false statement of material fact to a tribunal), 3.4 (c) (knowingly disobeying obligations under rules of tribunal), 8.2 (making false statement as to qualification or integrity of a judge), and 8.4 (a), (c)-(d) (violating Rules of Professional Conduct, conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct prejudicial to the administration of justice).*fn1 As it must,*fn2 the Board deferred to the findings of the Maryland authorities and concluded that the respondent had: 1) intentionally made misleading statements to a trial judge regarding the scope of a protective order, 2) failed to respond to valid discovery requests or participate in a pre-trial conference, and 3) recklessly accused the trial judge of an improper ex parte communication with his opponents.*fn3 The Maryland Court of Appeals publicly reprimanded the respondent,*fn4 and a certified copy of its order was filed with this court. Since respondent is a member of our Bar, as well as that of Maryland, we issued an order directing the Board to recommend whether identical, greater, or lesser discipline should be imposed as reciprocal discipline or whether it would proceed de novo pursuant to D.C. Bar. R. XI, § 11.
The Board submitted its report and recommendation on December 23, 2005, and a copy of that report is attached hereto. It recommended that we impose the functionally equivalent reciprocal discipline of a public censure. Respondent has withdrawn his initial exceptions to the recommendation and Bar Counsel has previously informed us that he takes no exceptions; thus, there is no opposition and our deference is heightened. See D.C. Bar R. XI, § 9 (g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997). For this reason, and because we find substantial support in the record for the Board's findings, we hereby accept them and its recommendation. See D.C. Bar R. XI, § 9 (g)(1). We also agree that a public censure is well within the range of appropriate sanctions in these circumstances, see, e.g., In re DeMaio, 893 A.2d 583 (D.C. 2006); In re Zentz, 891 A.2d 277 (D.C. 2006), and is the functional equivalent of a public reprimand in Maryland. See In re Miller, 883 A.2d 105 (D.C. 2005). Accordingly, it is ORDERED that John W. Hermina be and hereby is publicly censured.
This reciprocal discipline matter comes before the Board on Professional Responsibility (the "Board") as a result of discipline imposed by the Court of Appeals of Maryland (the "Maryland Court"). The Board recommends that the District of Columbia Court of Appeals (the "Court") impose the functionally equivalent reciprocal discipline of a public censure.
Respondent is a member of the District of Columbia Bar, having been admitted on December 15, 1989. During the period in question, Respondent was also a member of the Maryland Bar. On March 17, 2004, Bar Counsel filed with the Court a certified copy of an order of the Maryland Court publicly reprimanding Respondent. Attorney Grievance Comm'n of Maryland v. Hermina, Misc. Docket AG No. 88 (Feb. 13, 2004) (the "Maryland Order").*fn5 On March 24, 2004, the Court issued an order directing the Board either to (i) recommend "whether identical, greater or lesser discipline should be imposed as reciprocal discipline," or (ii) determine whether the Board should proceed de novo. Order, In re Hermina, No. 04-BG-246 (D.C. Mar. 24, 2004).
II. THE MARYLAND PROCEEDINGS
In December 2002, The Attorney Grievance Commission of Maryland filed a petition for disciplinary action against Respondent, charging him with violating a number of rules of the Maryland Rules of Professional Conduct ("MRPC") in connection with litigation that began in 1997. The Maryland Court referred the petition for a hearing to Judge Maureen Lamasney, who presided over a three-day hearing. Maryland Order at 1. On June 23, 2003, Judge Lamasney issued a Statement of Findings of Fact and Conclusions of Law in which she concluded that Respondent had violated MRPC 1.1 (competence); 1.3 (diligence); 3.2 (expediting litigation); 3.3(a)(1) (making false statement of material fact to a tribunal); 3.4(c) (knowingly disobeying obligations under rules of tribunal); 3.4(d) (frivolous discovery request, failure to comply with proper discovery request); 3.5(a)(8) (conduct intended to disrupt tribunal); 8.2(a) (false statement as to qualification or integrity of judge); 8.4(a) (violating Rules of Professional Conduct); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). Id. at 4-7.
Both Respondent and Maryland Bar Counsel filed exceptions to Judge Lamasney's findings. Id. at 1, 7. As noted by the Maryland Court, Respondent's exceptions comprised "39 pages and go into great detail concerning the evidence relating to some of Judge Lamasney's findings . . . . The principal basis of his exceptions is that the evidence does not support those findings and therefore does not support Judge Lamasney's conclusions with respect to the Rule violations." Id. at 7. In a twenty-page opinion, the Maryland Court carefully reviewed Respondent's exceptions and, ultimately, agreed with many of them. The Maryland Court concluded that Respondent had not violated MRPC 1.1, 1.3, 3.2, 3.4(d) or 3.5(a)(8), but that he had violated MRPC 3.3(a)(1), 3.4(c), and 8.2(a). Id. at 8-18. On the basis of these findings, the Maryland Court concluded that Respondent, therefore, had also violated MRPC 8.4 (a), (c), and (d). Id. at 19. The facts underlying Respondent's violations may be summarized as follows.*fn6
In May 1997, Respondent filed suit in the Circuit Court for Montgomery County against Baltimore Life Insurance Company ("BLIC") and BLIC's manager of client relations, David Griffin, on behalf of his client and former BLIC employee, Kevin Reed.*fn7 Reed's complaint included allegations of defamation, intentional infliction of emotional distress, and tortious interference with business relations. BLIC filed a counterclaim for breach of contract, breach of fiduciary duty, and fraud. Id. at 2. As noted by the Maryland Court, "[t]he course of the litigation was extremely contentious and often uncivil. The lawyers traded accusations against one another regarding a variety of pre-trial, and often wholly extraneous matters, which no doubt made Judge Kavanaugh's job much more difficult than it needed to be." Id. at 3.*fn8 Included in that contentious behavior were the following, which provided the basis for the Maryland Court's conclusions regarding Respondent's violations:
(1) Respondent objected to discovery by BLIC and trial testimony by a defense witness by deliberately misrepresenting to Judge Kavanaugh that he had been precluded from conducting any discovery by virtue of a protective order that another judge had issued in the case. The Maryland Court found that the order at issue precluded only the deposition of one witness for a particular period of time. The Maryland Court stated that "Hermina was completely misconstruing the order; there was no reasonable basis for a belief that Judge Rupp had precluded Hermina from taking any discovery throughout the rest of the case, and for Hermina to assert that as a ground for precluding discovery by BLIC or precluding trial testimony by a defense witness was a deliberate misrepresentation and thus a violation of MRPC 3.3(a)(1)."*fn9 Id. at 12-13.
(2) Respondent failed to respond to discovery requests and his explanation was that "he declined to respond because of his belief that BLIC had failed to respond to his discovery requests, thereby prejudicing his ability to prepare his case." Id. at 15. As the Maryland Court noted, "[r]etaliation is not a proper basis for failing to comply with valid discovery requests." Id. Respondent also knowingly failed to participate in a pre-trial conference that had been ordered for the purposes of preparing a joint pre-trial statement. Id. at 16. Both of these acts constituted violations of MRPC 3.4(c).*fn10 Id. at 15-16.
(3) On the basis of information provided by his client, Respondent wrote a letter to opposing counsel accusing counsel and Judge Kavanaugh of having engaged in a conference about jury instructions outside the presence of ...