The opinion of the court was delivered by: Fisher, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN265-03)
Submitted December 7, 2007
Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
This is a hybrid attorney discipline case. Based on proceedings conducted in Virginia, the Board on Professional Responsibility ("Board") recommends that we impose on respondent Michael H. Ditton reciprocal discipline in the form of a five-year suspension from the practice of law. In addition, however, the Board recommends "imposition of a fitness requirement . . . based on the standard applied in original proceedings." We neither accept nor reject the Board's recommendations at this time, but remand for further inquiry.
Respondent Michael Ditton is a member of the District of Columbia and Virginia bars, but this disciplinary saga began when he applied for admission to the State Bar of Montana in the year 2000. The Commission on Character and Fitness denied his application, concluding, as the Supreme Court of Montana later summarized, that "Ditton's behavior as shown in the record constituted evidence of abuse of legal process, neglect of financial responsibilities, and current mental or emotional illness or disorder." The Supreme Court of Montana affirmed the decision to deny admission to the bar of that state.
In August 2001, after being advised that the Supreme Court of Montana had denied respondent admission, the Virginia State Bar initiated disciplinary proceedings based on the conduct described in the Montana rulings. In August 2004, respondent was present and testified at an evidentiary hearing before a three-judge panel of the Circuit Court for the City of Alexandria on a Rule to Show Cause why his law license should not be suspended or revoked.The court found, by clear and convincing evidence, that respondent had violated DR 1-102 (Misconduct); DR 7-102 (Representing a Client Within the Bounds of the Law); Rule 3.3 (Candor Toward The Tribunal); and Rule 8.4 (Misconduct) of the Virginia Code of Professional Responsibility and Rules of Professional Conduct.*fn1 The court suspended respondent's license to practice law in the Commonwealth of Virginia for five years.
On appeal, the Supreme Court of Virginia affirmed the Circuit Court's order. Respondent presented fourteen assignments of error, but the court declined to evaluate ten of the issues because respondent did not timely file the transcript from the Circuit Court proceeding.With respect to the remaining issues, the court noted that it was guided by certain principles: "We view the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the Virginia State Bar, the prevailing party in the circuit court." Moreover, the court "conduct[s] an independent examination of the whole record and view[s] the three-judge court's factual findings as prima facie correct." Having applied these principles during its independent review of the record, the court found no merit in the remaining assignments of error. Although the five-year suspension had been stayed pending Supreme Court review, the Circuit Court reinstated the suspension on December 2, 2005.
Bar Counsel in the District of Columbia deferred his own inquiry until the proceedings in Virginia were completed. He then initiated this reciprocal disciplinary proceeding. On February 27, 2006, we suspended respondent from the practice of law in the District of Columbia pending final disposition of this matter. See D.C. Bar R. XI, § 11 (d). The Board's Report and Recommendation and the briefs of the parties are now before us.
D.C. Bar Rule XI, § 11 (c)*fn2 "creates a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Moreover, "reciprocal discipline proceedings are not a forum to reargue the foreign discipline." In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003). Where the Board recommends reciprocal discipline, D.C. Bar Rule XI, § 11 (f)(2) requires that identical discipline be imposed unless the attorney demonstrates, or the court finds on the face of the record, by clear and convincing evidence, one of the five exceptions set forth in D.C. Bar Rule XI, § 11 (c).*fn3 See also In re Goldsborough, 654 A.2d 1285, 1287 (D.C. 1995) (citing In re Zilberberg, 612 A.2d at 834).
Bar Counsel and the Board may rely upon the "substantially different discipline" exception, D.C. Bar Rule XI, § 11 (c)(4), when arguing for or recommending a greater sanction. In re Jacoby, 945 A.2d 1193, 1198 (D.C. 2008); In re Drury, 638 A.2d 60, 62 n.6 (D.C. 1994). However, "in a reciprocal proceeding, when a greater sanction is sought in the District of Columbia, the record must affirmatively show that a greater sanction is warranted . . . ." Zilberberg, 612 A.2d at 835. "If the existing record from the original disciplining jurisdiction is insufficient for that purpose, then the record must be augmented before a greater sanction may be imposed. The usual means of augmentation will probably be, we expect, a de novo hearing before a hearing committee. See D.C. Bar Rule XI, § 11 (g)(2)." Id. In addition, if we determine that identical discipline should not be imposed, we may enter an "appropriate" order, which may include "referral of the matter to the Board for its further consideration and recommendation." D.C. Bar R. XI, § 11 (f)(2); see In re Maxwell, 798 A.2d 525, 531 (D.C. 2002).