The opinion of the court was delivered by: Schwelb, Senior Judge
On Report and Recommendation of the Board on Professional Responsibility (BD No. 096-06)
Submitted February 7, 2008
Before REID*fn1 and KRAMER, Associate Judges, and SCHWELB, Senior Judge.
This reciprocal disciplinary proceeding is predicated on an order of the Supreme Court of California, dated December 16, 2005, accepting the resignation of respondent Walter B. Lebowitz from the State Bar of California while charges against him were pending. In its well-reasoned and persuasive Report and Recommendation, a copy of which is attached hereto and made a part hereof, the Board on Professional Responsibility has recommended, as identical reciprocal discipline, that Lebowitz be suspended from practice in the District of Columbia for five years, and that reinstatement be conditioned upon a demonstration by Lebowitz of his fitness to practice law. Lebowitz has excepted to the recommendation; Bar Counsel has not.
Our review of the Board's recommendation is deferential, see D.C. Bar R. XI, § 9 (g), and we accord that recommendation substantial weight. In re Slosberg, 650 A.2d 1329, 1330 (D.C. 1994); see also In re Soininen, 853 A.2d 712, 723 (D.C. 2004). Essentially for the reasons stated by the Board, and with only the limited elaboration that follows, we adopt as our own the Board's Report and Recommendation.
The case is somewhat unusual; indeed, it presents a question of first impression in this jurisdiction. This is so because, as noted by the Board, the misconduct that led to the disciplinary proceeding against Lebowitz occurred before Lebowitz' admission to our Bar on November 12, 2004. We agree with the Board, however, that regardless of when the underlying misconduct in another jurisdiction occurred, "[r]eciprocal discipline is necessary, for otherwise such suspended or disbarred lawyers would be free to relocate in the District of Columbia and take up or continue practicing law there." As the Supreme Court of California explained in Stratmore v. State Bar of California, 538 P.2d 229, 230-31 (Cal. 1975) (en banc) (per curiam), "since . . . we may discipline an attorney for conduct either in or out of his profession which shows him to be unfit to practice, it is irrelevant that Stratmore's misconduct preceded his admission to practice." See also Debra T. Landis, Annotation, Disciplinary Action Against Attorney Based on Misconduct Prior to Admission to Bar, 92 A.L.R. 3d 807 (Supp. 2007). "Courts in many cases have held or recognized the rule that misconduct of an attorney prior to admission to the bar can be the sole basis for disciplinary proceedings." Id. at 809.
Lebowitz claims that the discipline recommended by the Board would be "oppressive" and "unjust," and that it would impose a hardship upon himself and others, on the basis of acknowledged but stale misconduct that occurred before Lebowitz became a member of our Bar.*fn2 According to Lebowitz, he has been living "an exemplary life" since this misconduct occurred. We conclude, on the contrary, that there are aggravating circumstances of quite recent vintage. In affidavits filed on April 21, 2006, pursuant to D.C. Bar R. XI, § 14 (g) and In re Goldberg, 460 A.2d 982 (D.C. 1983), Lebowitz assured the court, inter alia, that he "has no active cases in the District of Columba," that he "had no clients to notify that he was suspended," and that he has "refrained from practicing in the District of Columbia, since he resigned from the State Bar of California and received notice of this action." This was a somewhat startling assertion because, less than three weeks earlier, on April 4, 2006, Lebowitz had represented, in his "Response to Proposed Suspension," that to suspend him from practice "would be a great hardship on [him] and the people he is helping with their immigration problems." According to Lebowitz, these people (obviously clients)*fn3 would not be able to secure the assistance of new counsel "who could became familiar with their problems fast enough before they could be deported." On April 25, 2006, in light of these apparently contradictory representations, Bar Counsel sent Lebowitz a letter requesting that he "clarify" his statements. So far as the record reveals, there has been no "clarification" from Lebowitz during the almost two years that have elapsed since Bar Counsel sent his letter, and Lebowitz has made no mention of the point in his exception to the Board's Report, which he filed on February 7, 2007.
In the absence of any explanation from Lebowitz, we are compelled to conclude that the conflicting representations made by him on April 4, 2006, and April 21, 2006 cannot both be true. If, as Lebowitz represented on April 4, his suspension in the District would work a hardship on his immigration clients, then his representations seventeen days later that he had no clients whom he could notify of his suspension, and that he had not been practicing law, were necessarily false. If, on the other hand, Lebowitz had no clients to notify, then the claimed hardship to his immigration clients was a fabrication. Either way, Lebowitz' conduct in this proceeding has been less than "exemplary," and the evidence, unexplained by Lebowitz, provides substantial reason to believe that he has violated Rule 3.3 (a) of the Rules of Professional Conduct (making false statements of material fact to a tribunal), as well as Rule 8.4 (c) (conduct involving dishonesty). See, generally, In re Cleaver-Bascombe, 892 A.2d 396, 404-05 (D.C. 2006), discussing these Rules.
Accordingly, and for the reasons stated by the Board in its attached Report, Walter B. Lebowitz, is hereby suspended from practice for a period of five years, with reinstatement conditioned upon his demonstrating his fitness to resume the practice of law. We direct Lebowitz' attention to the requirements of D.C. Bar R. XI, § 14 (g) and their effect on his eligibility for reinstatement, D.C. Bar R. XI, § 16 (c). For purposes of reinstatement, Lebowitz' suspension shall commence upon his full compliance with R. XI, § 14 (g), and upon his providing a candid and satisfactory explanation of the contradictions between his representations of April 4, 2006 and April 21, 2006.
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This reciprocal matter is predicated on an order of the Supreme Court of California, dated December 16, 2005, accepting Respondent's resignation, with charges pending, from the State Bar of California. Bar Counsel urges that we recommend disbarrment, which it contends is the functionally equivalent reciprocal discipline under D.C. Bar R. XI, § 11.
The charges pending at the time Respondent submitted his resignation from the California Bar in November 2005 were based entirely upon Respondent's admissions of misconduct in an earlier Florida case. The admitted misconduct consisted of two instances, during the period from November 2000 to March 2004, of Respondent's practicing law in Florida despite the Florida Supreme Court's acceptance, on September 14, 1989, of his petition for resignation from the Florida Bar without leave to reapply. At the time he engaged in unauthorized practice in Florida, he was not a member of the Florida Bar. Nor was he a member of the District of Columbia Bar.
Two substantial issues arise in this matter. First, can reciprocal discipline be ordered under the District of Columbia disciplinary law when the original court's discipline is based upon conduct that occurred at a time when the respondent was not a member of the District of Columbia Bar? If so, would the misconduct charged against Respondent at the time of his resignation from the California Bar warrant substantially different discipline in the District of Columbia?
Respondent was admitted to the District of Columbia Bar on November 12, 2004. Statement of Bar Counsel, Appendix A. His registration statement discloses his membership in the State Bar of California, as a result of his having been "reinstated" by that bar on January 2, 1986. Id. At present, by virtue of his resignation from the California Bar, he is not a member of any bar other than ...