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In re Amberly

June 25, 2009

IN RE VINCENT M. AMBERLY, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 365590)



On Report and Recommendation of the Board on Professional Responsibility, (BDN445-07).

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

Argued May 14, 2009

Before KRAMER and FISHER, Associate Judges, and BELSON, Senior Judge.

In this reciprocal discipline proceeding, the Board on Professional Responsibility ("Board") recommends that we impose the substantially different discipline of a thirty-day suspension. We accept the Board's recommendation.

I.

This proceeding arises from allegations that Vincent Mark Amberly, an attorney licensed to practice law in the Commonwealth of Virginia and the District of Columbia,*fn1 lied about attempting to serve a counterclaim on Martin B. Katz, a self-represented opposing party, in the General District Court of Fairfax County, Virginia, on September 19, 2005.

The Virginia State Bar Disciplinary Board ("Virginia Board") specifically found (1) that Mr. Amberly's "statements in the certificate of service that he attempted hand delivery of the Counterclaim to [Mr. Katz], and that [Mr. Katz] refused such delivery, were false, and were made by [Mr. Amberly] with knowledge of their falsity"; (2) that Mr. Amberly "made representation as contained in the foregoing certificate of service in open court . . . in response to [Mr. Katz's] motion to dismiss the counterclaim"; and (3) that in a December 19, 2005, letter to Bar Counsel in Virginia, Mr. Amberly made "misleading" representations that "were calculated to induce Bar Counsel to conclude a) that [Mr. Amberly] had in fact furnished [Mr. Katz] with a copy of the Counterclaim on September 19, 2005, and b) that [Mr. Amberly] first learned from [Mr. Katz] on September 30, 2005, that [Mr. Katz] did not have a copy of the Counterclaim."

In light of these facts, the Virginia Board found by clear and convincing evidence that Mr. Amberly had violated four provisions of the Virginia Rules of Professional Conduct -- that he (1) knowingly made a false statement of fact or law to a tribunal in violation of Rule 3.3; (2) knowingly made a false statement of fact or law in the course of representing a client (Rule 4.1); (3) knowingly made a false statement of material fact in connection with a disciplinary matter (Rule 8.1); and (4) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on his fitness to practice law (Rule 8.4). The Virginia Board ordered "that the Respondent receive an Admonition with Terms" and that he complete six hours of Continuing Legal Education within a year. Failure to comply with those terms would "result in a hearing to determine what sanctions are appropriate."

II.

Our Board did not find, and respondent has not established, by clear and convincing evidence, that the proceedings in Virginia deprived him of due process, D.C. Bar R. XI, § 11 (c)(1); that there was infirmity of proof, id., § 11 (c)(2); or that his conduct there would not constitute misconduct here. Id., § 11 (c)(5). "'Thus, we must treat respondent's misconduct as conclusively established by the decision'" of the Virginia Board. In re Barrett, 966 A.2d 862, 863 (D.C. 2009) (citing In re DeMaio, 893 A.2d 583, 586 (D.C. 2006)).

Although in his brief and at oral argument, Mr. Amberly's counsel frequently suggested that the Virginia Board misunderstood the facts, he specifically requests that we impose identical reciprocal discipline. The Board on Professional Responsibility recommends that we impose the "substantially different discipline of a 30-day suspension."

"At the outset, we note that the authority of the Board to recommend greater discipline, and of this court to impose it, is well established.*fn2 Determining whether the 'substantially different discipline' exception warrants a greater or lesser sanction involves a two-step inquiry. First, we must determine if the misconduct would not have resulted in the same punishment here as it did in the disciplining jurisdiction. . . . Second, if the discipline imposed in the District of Columbia would be different from that of the original disciplining court, we must then decide whether the difference is 'substantial.'" Barrett, 966 A.2d at 864 (internal citations and quotation marks omitted); In re Demos, 875 A.2d 636, 642 (D.C. 2005).

Nevertheless, where an attorney licensed in the District of Columbia is disciplined in another jurisdiction, there is a presumption in favor of imposing identical discipline here. See In re Jacoby, 945 A.2d 1193, 1197 (D.C. 2008) (There is "a rebuttable presumption that the discipline will be the same in the District of Columbia as it was in the original jurisdiction.") (citing Demos, 875 A.2d at 641). When Bar Counsel recommends a greater sanction than that imposed by another jurisdiction, he bears the burden of demonstrating by clear and convincing evidence that a more severe sanction is appropriate. See In re Jacoby, 945 A.2d at 1198 (interpreting ...


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