(Bar Registration No. 450873)
On Report and Recommendation of the Board on Professional Responsibility
Before KRAMER and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.
Respondent, Michael J. Beattie, a member of the bar of this court and the Commonwealth of Virginia,*fn1 was suspended for 60-days by the Virginia State Bar Disciplinary Board ("Virginia Board") for the period of August 24, 2005, through October 24, 2005. The Virginia Board found, based upon a stipulation entered into by respondent, that respondent violated Virginia Rules of Professional Conduct 3.3 (a)(1) (false statement to a tribunal), 3.3 (a)(4) (offer of evidence known to be false, 3.3 (c) (failure to inform a tribunal of all material facts in an ex parte proceeding), and 3.5 (f) (conduct intended to disrupt a tribunal). The findings stemmed from respondent's representation of a client in an employment discrimination matter before the United States District Court for the Eastern District of Virginia, Newport News Division.*fn2
Respondent promptly notified D.C. Bar Counsel of his suspension from the Virginia Bar and complied with Bar Counsel's instruction to notify all clients, judges and adverse parties of his suspension. Upon the request of Bar Counsel, we entered an interim suspension on April 26, 2006. Respondent filed a motion to set aside the suspension, which was opposed by Bar Counsel. After Bar Counsel filed the opposition, respondent filed new affidavits and Bar Counsel submitted a letter on May 23, 2006, that it no longer opposed lifting the suspension. As a result, we issued an order on June 26, 2006, granting respondent's motion lifting the suspension without prejudice to the authority of the Board on Professional Responsibility ("Board") and referred the matter to the Board to recommend whether to impose discipline different from or more substantial than ordered in Virginia.*fn3 The Board issued a report and recommendation finding that respondent should receive reciprocal discipline of a 60-day suspension, however, the Board addressed several factors and concluded that the suspension should be stayed in favor of a 60-day period of unsupervised probation,*fn4 and as a condition of probation, respondent be directed to inform Bar Counsel of any disciplinary complaint during the period of probation.
Because of the rebuttable presumption favoring identical reciprocal discipline, see In re Goldsborough, 654 A.2d 1285 (D.C. 1995), and considering the heightened deference this court gives to the Board's recommendation in cases such as this where no exceptions are filed, see In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997), or in this instance where the exceptions have been withdrawn or waived,*fn5 we adopt the Board's recommendation. We find substantial support in the record for the Board's findings, and, accordingly, we accept them. See D.C. Bar R. XI, § 11 (f)(1). We also agree that a 60-day suspension should be stayed in favor of a 60-day unsupervised probationary sanction in this case is not inconsistent with the sanction imposed by the original state. See, e.g., In re Goldberg, supra note 4. Accordingly, it is
ORDERED that Michael J. Beattie, Esquire, be and hereby is suspended for 60-days, but that the suspension shall be stayed in favor of a 60-day period of unsupervised probation. During this period of probation respondent shall promptly inform Bar Counsel of any disciplinary complaint during the period of probation.
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This reciprocal discipline matter is based upon an order of the Virginia State Bar Disciplinary Board ("Virginia Board") ordering Respondent suspended for the 60-day period from August 24, 2005 through October 24, 2005. Bar Counsel, in its statement to the Board, urges that a 60-day suspension be imposed as reciprocal discipline identical to the Virginia sanction and, based upon its receipt of an "affidavit, pursuant to D.C. Bar R. XI, § 14, and a Goldberg affidavit," states that it "does not oppose nunc pro tunc treatment in this matter." Statement of Bar Counsel at 7 n.5. Respondent has filed no response to the Statement of Bar Counsel.
We agree that a 60-day suspension is an appropriate reciprocal sanction for the misconduct established in the Virginia disciplinary proceeding and therefore recommend that the Court order Respondent suspended from the practice of law in the District of Columbia for 60 days. In view of (1) Respondent's fulfillment of the two conditions set forth in In re Goldberg, 460 A.2d 982 (D.C. 1983) for cognizable self-suspension in reciprocal matters, (2) the almost eight-month delay between the time Respondent notified Bar Counsel of his Virginia suspension and Bar Counsel's bringing that suspension to the Court's attention, (3) Bar Counsel's statement that it does not object to nunc pro tunc treatment and (4) our conclusion that commencement of a 60-day suspension at the time of the Court's final disposition of this matter would, in the circumstances in this matter, impose unwarranted, multiple sanctions on Respondent, we also recommend that the 60-day period of suspension be stayed in favor of a 60-day period of unsupervised probation.
Respondent is a member of both the District of Columbia Bar (Bar Number 450873), having been admitted by motion on May 3, 1996, and of the Virginia Bar. He also is admitted to practice in the United States District Courts for the Eastern District of Virginia and the District of Columbia, as well as in the United States Courts of Appeals for the Fourth, Eleventh and District of Columbia Circuits.
Respondent has no disciplinary history in the District of Columbia. Bar Counsel has reported, however, that Respondent was indefinitely suspended from practice in the District Court for the Eastern District of Virginia on August 13, 2003, which suspension was still in effect on May 26, 2006. See Statement of Bar Counsel at 1.
A. Prior District of Columbia Proceedings in This Matter
Respondent "promptly notified the D.C. Bar Counsel on August 25, 2005 of [his] suspension from the Virginia Bar." See "Goldberg Affidavit" filed with the District of Columbia Court of Appeals (the "Court") on May 22, 2006, which is reproduced in the Appendix to this Report. He also at that time "complied with [Bar Counsel's] instructions" and "promptly notified all clients, judges and adverse parties of [his] suspension, via certified mail, return receipt" requested. See "Affidavit" filed with the Court on May 22, 2006, which also is reproduced in the Appendix to this Report. During the 60-day period of his suspension - from August 24, 2005 to October 24, 2005 - Respondent "did not practice law in Virginia or the District of Columbia." Id.*fn6
Bar Counsel, on April 11, 2006 - almost eight months after Respondent had notified him of the Virginia suspension, and almost six months after the Virginia suspension period ended - filed with the Court a certified copy of the disciplinary order of the Virginia Board with a proposed order suspending Respondent "from the practice of law in the District of Columbia pending final disposition of this proceeding." The Court, on April 26, 2006, ordered the interim suspension Bar Counsel had requested.
Respondent, on May 9, 2006, filed a "Motion to Set Aside Suspension," to which he attached documents that he described as, a "Show Cause, rule 14(g) affidavit and Goldberg affidavit." Bar Counsel opposed the motion on the ground that Respondent had "not yet submitted affidavits sufficiently demonstrating his compliance with D.C. Bar Rule XI, § 14(g) or In re Goldberg." See Opposition of Bar Counsel to Respondent's Motion to Set Aside Suspension at 1-2. Index of Record. at Tab 6.
The deficiencies that Bar Counsel specified were as follows:
(a) Respondent's proffered Goldberg affidavit is deficient because, inter alia, the affidavit is not properly sworn or notarized, and Respondent did not promptly notify Bar Counsel that the United States District Court for the Eastern District of Virginia had ...