The opinion of the court was delivered by: Reid, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 279-01, BDN 504-02 & 045-04)
Before RUIZ and REID, Associate Judges, and SCHWELB,*fn2 Senior Judge. Opinion for the court by Associate Judge REID.
Dissenting opinion by Associate Judge RUIZ at page 34.
These consolidated cases, involving reciprocal discipline of two members of the District of Columbia Bar, respondents Howard L. Greenspan and Leslie D. Silverman, require us to determine whether the Massachusetts Board of Bar Overseers and the Attorney Grievance Commission of Maryland are "disciplining court[s]" within the meaning of D.C. Bar Rule XI, § 11 (a) (2005). We hold that neither the Massachusetts Board of Bar Overseers nor the Attorney Grievance Commission of Maryland is a "disciplining court" under D.C. Bar Rule XI, § 11 (a) (2006); and that before reciprocal discipline may be imposed by this court for professional misconduct in another jurisdiction, an attorney admitted to practice in this jurisdiction must have been disciplined by a disciplining court outside the District, or by another court in the District. Therefore, we dismiss the reciprocal disciplinary proceeding against Mr. Greenspan. In Ms. Silverman's case, in conformity with the Board's recommendation, we dismiss the reciprocal proceeding against her; however, we adopt the Board's recommendation that, in the original discipline case, Ms. Silverman be publicly censured.
Respondent Howard Greenspan
Mr. Greenspan was admitted to the District of Columbia Bar on May 18, 1979, and later became inactive. He was also admitted to the Massachusetts Bar where he remained active. On April 10, 2000, the Commonwealth of Massachusetts Board of Bar Overseers of the Supreme Judicial Court of Massachusetts ("Board of Bar Overseers") issued an "Order of Public Reprimand" against Mr. Greenspan as a result of a joint "stipulation of facts and disciplinary violations." According to the stipulation, Mr. Greenspan represented a client who had been involved in three automobile accidents occurring on March 24, 1993, September 23, 1993, and June 4, 1994. He resolved the March 24, 1993 accident to the satisfaction of the client. Regarding the accident that occurred on September 23, 1993, Mr. Greenspan filed a lawsuit on September 20, 1996, prior to the expiration of the statute of limitations, but failed to take any other action to advance the case. Consequently, the case was dismissed on August 4, 1998, and Mr. Greenspan made no effort to reinstate the case.*fn3 Mr. Greenspan filed a claim with the insurance company of the driver involved in the June 4, 1994 accident. He subsequently rejected an $8,000.00 offer from the insurance company on behalf of his client, but failed to file a lawsuit relating to this accident prior to the expiration of the statute of limitations. The client retained new counsel who contacted Mr. Greenspan on December 8, 1997 and January 13, 1998, requesting the client's files in these matters. Mr. Greenspan did not respond.
After Mr. Greenspan's failure to respond to new counsel, the client filed a complaint with the Massachusetts Bar Counsel. Subsequently, Mr. Greenspan was charged with failing:
(1) to safeguard a copy of the complainant's contingent fee agreement, in violation of Massachusetts Disciplinary Rule ("Mass. DR") 2-106;*fn4 (2) to prosecute an action for the September 23, 1993 accident and causing it to be dismissed and failing to file suit for the June 4, 1994 accident within the three-year statute of limitations, in violation of Mass. DR 6-101 (A)(3)*fn5 and Mass. DR 7-101 (A)(1)-(3);*fn6 (3) to comply with the client's request that the case be forwarded to new counsel, in violation of Mass. DR 2-110 (A)(4) and Rule 1.16 (d) of Massachusetts Rules of Professional Conduct;*fn7 and (4) to cooperate with the Massachusetts Bar Counsel, in violation of Rules 4:01, § 3 (1)(b) and 8.4 (g) of the Massachusetts Rules of Professional Conduct.*fn8 The Massachusetts Bar Counsel had difficulty getting Mr. Greenspan to respond, even to a subpoena. Eventually, Mr. Greenspan retained counsel and stipulated to his violations of the Massachusetts Rules on Professional Conduct. He also waived his right to a public hearing and agreed to dispose of the matter by imposition of a public reprimand. On February 14, 2000, the Board of Bar Overseers accepted the joint recommendation for a public reprimand based on Mr. Greenspan's and the Massachusetts Bar Counsel's stipulation of facts and disciplinary violations. On April 20, 2000, the Board of Bar Overseers entered an order publicly reprimanding Mr. Greenspan.
On December 3, 2002, Bar Counsel filed with this court a certified copy of the order of the Board of Bar Overseers. On December 19, 2002, this court issued an order directing Bar Counsel to inform the Board of her position concerning reciprocal discipline; and directing Mr. Greenspan thereafter to show cause before the Board why identical, greater, or lesser reciprocal discipline should not be imposed. Mr. Greenspan did not respond to the December 19th order of this court. However, earlier, he had sent an undated letter, which Bar Counsel received on April 17, 2002, confirming his intention not to contest the issues that resulted in the Board of Bar Overseers' public reprimand. Mr. Greenspan also stated that he wished to resolve this matter in a way "which does not result in additional hearings if possible."
On January 16, 2003, Bar Counsel informed the Board of her position pertaining to reciprocal discipline, and on July 30, 2004, the Board issued its Report and Recommendation. A majority of the Board recommended that "non-identical reciprocal discipline of a 30-day suspension" be imposed on Mr. Greenspan. Three members of the Board dissented, taking the position that the reciprocal proceeding should have been dismissed, with Bar Counsel having the option of deciding whether or not to bring an original proceeding.
Respondent Leslie Silverman
Ms. Silverman was admitted to the District of Columbia Bar on October 2, 1995, and previously had been admitted to practice in Maryland. Her case consists of two consolidated matters -- an original jurisdiction proceeding arising from her failure to respond to the District's Bar Counsel, and a reciprocal proceeding arising out of a reprimand issued by the Maryland Attorney Grievance Commission ("Attorney Grievance Commission.").
In the original proceeding, Bar Counsel filed a Specification of Charges and a Petition Instituting Formal Disciplinary Proceedings on July 14, 2003, alleging that Ms. Silverman violated the following Rules of Professional Conduct: Rule 8.1 (b)*fn9 -- failure "to respond reasonably to a lawful demand for information from a disciplinary authority;*fn10 Rule 8.4 (d)*fn11 -- "engag[ing in] and continu[ing] to engage in conduct that seriously interfered with the administration of justice"; and D.C. Bar R. XI, § 2 (b)(3)*fn12 -- failure "to comply with an order of the [c]court or the Board." In a letter dated August 11, 2003, Ms. Silverman acknowledged that she received Bar Counsel's request for information and failed to respond in a timely manner. She also explained that after receiving Bar Counsel's first request, she contacted her former law firm to retrieve the file related to the underlying complaint.
On September 10, 2003, Hearing Committee Number 10 held a hearing on the charges lodged against Ms. Silverman. She was called as Bar Counsel's witness. She testified but did not provide any exhibits or call any witnesses in her defense, and was not represented by counsel. After the hearing, the Committee requested post-hearing briefs according to the briefing schedule prescribed by Board Rule 12.1. Ms. Silverman failed to file her post-hearing brief in a timely manner, but filed proposed findings and conclusions on November 4, 2003, without submitting a request to file out of time. Therefore, the Committee did not consider her submission. On November 17, 2003, the Committee found that Ms. Silverman violated D.C. Bar R. XI, § 2 (b)(3), and Rules 8.1 (b) and 8.4 (d) of the Rules of Professional Conduct.
In the Attorney Grievance Commission case, Ms. Silverman failed to respond to three separate requests for information concerning ethical complaints. Ultimately, Ms. Silverman and Maryland Bar Counsel agreed that her failure to respond to the complaints violated Rule 8.1 (b)*fn13 of the Maryland Rules of Professional Conduct and filed a joint petition for public reprimand with the Attorney Grievance Commission. Ms. Silverman also entered into a Consolidated Diversion Agreement (CDA) pursuant to Maryland Rule 16-763. By letter dated December 22, 2003, the Attorney Grievance Commission directed the Maryland Bar Counsel to issue a reprimand. Ms. Silverman did not advise the District's Bar Counsel of her Maryland discipline, but Bar Counsel received a letter, dated January 13, 2004, from the Maryland Assistant Bar Counsel advising her of the reprimand.
After Bar Counsel informed this court of Ms. Silverman's discipline, we issued an order on February 19, 2004, directing the Board to recommend whether identical, greater, or lesser reciprocal discipline should be imposed, or whether the Board elects to proceed de novo. The Board opted for reciprocal discipline, and Ms. Silverman was ordered to show cause before the Board why identical, greater, or lesser discipline should not be imposed.
On April 20, 2004, Bar Counsel urged the Board to recommend a thirty-day suspension rather than a public reprimand in the reciprocal discipline case, and indicated that she was not opposed to a stay with conditions. On December 17, 2004, the Board issued its Report and Recommendation. A majority of the Board recommended a sanction of public censure in the original proceeding; and in the reciprocal matter concluded that the Maryland Grievance Commission's "orders cannot be the basis for reciprocal discipline under D.C. Bar R. XI, § 11." Thus, the Board "order[ed] that the reciprocal matter, No. 045-04, be dismissed." Two members of the Board concurred with the recommended discipline in the original proceeding, but dissented with respect to the reciprocal matter, disagreeing with the majority's analysis of "disciplining court" as that phrase is used in D.C. Bar R. XI, § 11.
The issue we confront in the reciprocal discipline cases is whether discipline has been ordered in the foreign jurisdiction by an entity identified in D.C. Bar R. XI, § 11, as a "disciplining court." Section 11 (a) defines "disciplining court" as follows:
[(1)] any court of the United States as defined in Title 28, Section 451 of the United States Code, [(2)] the highest court of any state, territory, or possession of the United States, and [(3)] any other agency or tribunal with authority to disbar or suspend an attorney from the practice of law in any state, territory, or possession of the United States.
D.C. Bar R. XI, § 11 (a). Moreover, Rule XI, §§ 11 (b), (c), (d), (e), and (h) all use the phrase "by a disciplining court outside the District of Columbia or by another court in the District of Columbia."
Summary of Board (Majority and Minority) and Bar Counsel Views
At oral argument, the Board asked this court to "adopt an expansive and dynamic approach" to interpreting the definition of disciplining court, mainly because disciplinary systems are "evolving around the country" and are delegating to their judicially created boards and committees the power to reprimand and otherwise sanction attorneys. The Board took the position that "highest court" as used in Rule XI, § 11 (a), means "highest court of a state exercising its disciplinary authority in whatever fashion the jurisdiction chooses," including disciplining bodies which have been delegated authority to discipline attorneys. The Board argued that the third category in Rule XI, § 11 (a) -- "any other agency or tribunal with authority to disbar or suspend" -- was not entirely clear and could be interpreted as an "agency or tribunal of the highest court" or a separate agency or tribunal.
As reflected in Mr. Greenspan's case and that of Ms. Silverman (as well as another case which will be mentioned later in this opinion), the Board is not unanimous concerning the interpretation of Rule XI, § 11 (a), nor how the majority's test regarding the term "disciplining court" should be applied. In its report pertaining to Mr. Greenspan's case, the Board majority developed a three-part test to determine whether an administrative body is a "disciplining court": "1) the administrative body imposing discipline is a part of an attorney disciplinary system; 2) the administrative body is exercising disciplinary authority pursuant to rules or regulations by a court which itself has the authority to disbar or suspend attorneys in the jurisdiction; and 3) the administrative body's imposition of discipline is consistent with that delegated authority." The Board majority*fn14 concluded that the Board of Bar Overseers is a "disciplining court" under this test because its authority to administer the system of attorney discipline remains under the jurisdiction and control of the Massachusetts Supreme Judicial Court, which has chosen to streamline its disciplinary system by delegating authority in attorney disciplinary matters to the Board of Bar Overseers. If the Board of Bar Overseers decides that a proceeding should be terminated by imposition of a suspension or disbarrment, it must file an Information with the Massachusetts Supreme Judicial Court, which reviews the recommendation and determines whether to sustain or reject it. The Board majority contended that discipline by the Board of Bar Overseers has the same force and effect as if the discipline had been imposed by the Massachusetts Supreme Judicial Court.
The majority also declared that the third category of Rule XI, § 11 (a) "does not preclude a finding that the disciplinary actions of judicially created entities should be given ...