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In re Guberman

August 13, 2009

IN RE MARK S. GUBERMAN, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


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

(Bar Registration No. 442683)

On Report and Recommendation of the Board on Professional Responsibility (BDN 311-06)

Argued January 15, 2009

Before RUIZ and THOMPSON, Associate Judges, and FARRELL, Senior Judge.*fn1

On April 13, 2006, the Court of Appeals of Maryland disbarred Mark S. Guberman, concluding that he engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4 (c) of the Maryland Rules of Professional Conduct ("MRPC") and in conduct prejudicial to the administration of justice, in violation of MRPC Rule 8.4 (d).*fn2 After Bar Counsel reported the Maryland discipline to this Court, we issued an interim order suspending respondent from practice in this jurisdiction and directing the Board on Professional Responsibility (the "Board") to provide its recommendation as to whether (1) this court should impose identical, greater or lesser discipline as reciprocal discipline, or (2) the Board should commence an original-discipline proceeding. In its Report and Recommendation dated November 6, 2007 ("Report"), the Board recommended that we impose non-identical reciprocal discipline -- specifically, a suspension of 18 months. We now adopt the Board's recommendation.

I. Background

A. Respondent's Misconduct and the Maryland Proceedings

Respondent's misconduct arose in the course of his employment as an associate with a law firm in Rockville, Maryland. Along with other lawyers at the firm, respondent represented a client as plaintiff in two related matters in Virginia state and federal courts. The federal court case was resolved in the client's favor, but the state court suit was summarily dismissed in favor of the defendants. Thereafter, as found by the hearing court in Maryland,

[The client] advised [respondent] Guberman that he did not want to appeal the [state court] case because he did not want to incur additional fees and expenses. Mr. Guberman discussed the matter with Mr. Cooper [respondent's supervisor at the law firm] and Mr. Moore [another lawyer at the firm]. Mr. Cooper instructed Mr. Guberman to tell [the client] that the firm would modify the fee arrangement if he pursued an appeal. Mr. Guberman did not convey that offer to [the client].

When Mr. Cooper later asked him about the status of the case, Mr. Guberman said he had filed a Notice of Appeal in the Circuit Court. In September 2003, Mr. Guberman told Mr. Cooper that he had filed a Petition For Appeal in the Supreme Court of Virginia. Mr. Guberman placed copies of these pleadings in the firm's file. Both copies bore what appeared to be file stamps indicating that the Clerk had received and filed the pleadings.

Mr. Guberman submitted monthly status reports to the firm. The status report dated December 22, 2003, reported that he was "awaiting court's ruling on petition for appeal. . . ." Mr. Cooper made further inquiries about the status of the appeal in early 2004. Around the end of May 2004, at the request of Mr. Cooper, Mr. Cooper's assistant, Jessica Stitely, watched Mr. Guberman call the court to check on the status of the case. Ms. Stitely was informed that the case was still pending.

In July 2004, Mr. Cooper made inquiries with the Virginia courts and learned that the appeal had never been filed and that the filing receipt stamps were not genuine. When confronted by Mr. Cooper, Mr. Guberman acknowledged that he never filed the appeal. . . . [The client] never authorized Mr. Guberman to file an appeal. He never was told by Mr. Guberman that an appeal had been filed.

Guberman, 896 A.2d at 339. The Maryland hearing court concluded that:

Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4 (c) . . . by falsely representing to Mr. Cooper and other representatives of the firm that he had filed an appeal in [the client's] case. He engaged in conduct prejudicial to the administration of justice [in violation of Rule 8.4 (d)] by creating falsified filing stamps on papers, falsely certifying that the papers had been filed in court.

Id. at 339-40.*fn3 Respondent did not take exception to those findings of fact and conclusions of law. Id. at 340. The Maryland Court of Appeals adopted them and ...


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