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In re Stuart

February 7, 2008; as amended February 13, 2008


The opinion of the court was delivered by: Ruiz, Associate Judge

On Report and Recommendation of the Board on Professional Responsibility (BDN 389-05)

Submitted December 11, 2007

Before RUIZ and KRAMER, Associate Judges, and NEBEKER, Senior Judge.

Concurring opinion by Associate Judge KRAMER at p. 6.

Dissenting opinion by Senior Judge NEBEKER at p. 7.

In this reciprocal discipline case, the Board on Professional Responsibility recommends that Claude N. Stuart, a member of our bar, be suspended for three years, the identical sanction imposed by the Appellate Division of the New York Supreme Court. The Board also recommends that respondent be subject to a fitness requirement as a condition of reinstatement. Neither Bar Counsel nor respondent has excepted to these recommendations, which we adopt.

In May 2002, respondent, who was an Assistant District Attorney in Queens County, New York, failed to produce to the defense a police report concerning a witness believed to have exculpatory information in a homicide case before Supreme Court Justice Jaime A. Rios. Faced with a direct inquiry from the court before trial regarding the witness's whereabouts, respondent falsely stated that he did not know, despite having previously located and met with the witness at her place of employment the previous week. Respondent failed to correct this misinformation at trial. As a result, the case had to be retried.

Based on this misconduct, the New York Supreme Court, Appellate Division, Second Department, held that respondent should be suspended from the practice of law for three years with a requirement that he petition for reinstatement before resuming the practice of law. See In re Stuart, 803 N.Y.S.2d 577, 579 (N.Y. App. Div. 2005).*fn1

District of Columbia Bar Counsel opened an investigation of respondent upon receipt of his November 28, 2005 letter, self-reporting the suspension in New York. On April 21, 2006, Bar Counsel filed with this court a certified copy of the New York order along with a proposed order to suspend respondent on an interim basis, pursuant to D.C. Bar R. XI, § 11 (d). By Order dated May 15, 2006, we suspended respondent from the practice of law in the District of Columbia pending final disposition of this matter and directed Bar Counsel to report its position regarding reciprocal discipline.

On June 15, 2006, Bar Counsel filed its statement with the Board recommending that respondent be suspended for a period of three years with reinstatement conditioned on a showing of fitness. Respondent did not file a response opposing Bar Counsel's recommendation.

The Board recommends the imposition of identical reciprocal discipline in the form of a three-year suspension with a fitness requirement as a condition of reinstatement, to be effective immediately but deemed to commence for purposes of reinstatement on the date respondent files an affidavit that fully complies with D.C. Bar R. XI, § 14 (g). "Under Rule XI, § 11 (c) of this court's Rules Governing the Bar, '[r]eciprocal 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." 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. (Footnote omitted). We have held that the presumption for imposing identical discipline is a strong one, reflecting "not only the notion that another jurisdiction has already afforded the attorney a full disciplinary proceeding, but also the idea that there is merit in according deference . . . to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority." In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003).

Neither Bar Counsel nor respondent has excepted to the Board's findings and recommendations. "Where respondent has not objected to the [identical] discipline proposed by the Board, the court's ordinarily deferential standard is even more deferential." In re Brown, 912 A.2d 568, 571 (D.C. 2006). In such situations, the "imposition of identical discipline should be close to automatic, with minimum review by . . . this court." In re Childress,811 A.2d 805, 807 (D.C. 2002) (quoting In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002)). Here, respondent made false representations to the New York court about his knowledge of the whereabouts of a witness the defense wished to contact in a murder case. As the New York court noted in its order suspending respondent, "respondent made a costly misrepresentation to the trial court which necessitated the retrial of the criminal action involving a major felony."

Dishonesty by attorneys to the court is very serious misconduct, with sanctions ranging up to and including disbarrment. See In re Goffe, 641 A.2d 458 (D.C. 1994) (per curiam) (ordering disbarrment for attorney's creation of evidence, falsification of documents, and forgery of signatures and notarizations on legal documents). We see no evidence of record suggesting that respondent has been denied due process or that there is an infirmity of proof in this case. Neither is there evidence suggesting that respondent would have received substantially different discipline had his case originated here. In this case, the imposition of identical reciprocal discipline does not reflect an obvious miscarriage of justice. Thus, the presumption of identical discipline applies to the facts at hand.

Although the gravity of respondent's misconduct, particularly when viewed in the context of his prior disciplinary history set out in Judge Kramer's concurrence, could well have merited disbarrment, we note that the Board recommends not only a three-year suspension but also a showing of fitness as a condition of reinstatement. That condition reflects the serious doubt that exists about respondent's fitness to meet his responsibilities to the court and to the defendants in his practice as a prosecutor. Moreover, the requirement to prove fitness is an adequate component of identical reciprocal discipline since a suspended attorney in New York must make the same showing pursuant to N.Y. COMP. CODESR. & REGS. tit. 22, § 691.11 (2007). See In re D'Onofrio, 764 A.2d 797, 798 n.1 (D.C. 2001) (per curiam) (finding that the "fitness requirement is functionally ...

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