On Report and Recommendation of the Board on Professional Responsibility (BDN130-03).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
This case involves two parallel disciplinary proceedings*fn1 - one arising as a reciprocal disciplinary matter*fn2 that originated in New York and another arising as a result of respondent's criminal conviction.*fn3 Henry Uscinski ("respondent") challenges a report of the District of Columbia Board on Professional Responsibility ("Board") recommending greater reciprocal discipline than that imposed on respondent by the Supreme Court of the State of New York, Appellate Division, Second Judicial Department ("New York Court").*fn4 With respect to respondent's reciprocal discipline matter, the Board recommends that we impose the greater reciprocal discipline of disbarrment because the New York Court's imposition of a five-year suspension was a "substantially different" discipline than would have been imposed in the District of Columbia for the same actions. The Board recommends that the proceedings which stem from respondent's conviction for tax evasion be dismissed as moot.
Respondent raises three issues, contending that: (1) he did not waive his right to argue against Bar Counsel's proposed imposition of greater reciprocal discipline; (2) the Board wrongly concluded that the New York Court's determination that he "improperly transferred" client funds constituted a finding of "intentional misappropriation," thereby warranting per se disbarrment in the District of Columbia; and (3) he deserves an opportunity to address a Hearing Committee on the issue of whether his tax evasion conviction constituted a crime involving "moral turpitude."*fn5
We agree with respondent, and as we discuss more fully below, we decline to adopt the Board's recommendation of disbarrment and instead impose the identical discipline imposed by the New York Court. Additionally, we decline to dismiss the proceedings stemming from respondent's criminal conviction as moot. We conclude that the record before us lacks clear and convincing evidence to support the Board's finding that respondent's actions in New York of "improperly transferring" client funds constitute "intentional misappropriation" under District of Columbia law, thereby warranting the greater sanction of per se disbarrment. We remand the respondent's original proceeding stemming from his criminal conviction to the Board with instructions to refer it to a Hearing Committee for a determination as to whether respondent's conviction for tax evasion involves moral turpitude.
I. Factual and Procedural Background
Respondent is an attorney barred in New York, Connecticut, and the District of Columbia. He pled guilty to tax evasion in the United States District Court for the Northern District of Florida. United States v. Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004). On August 7, 2003, the New York Court suspended respondent from the practice of law for his conviction of a serious crime.*fn6
The factual findings that led to respondent's suspension from the New York Bar are as follows. The New York Court's Special Referee found that respondent's client, Claude DuBoc, was indicted in 1996 in connection with an international drug trafficking and money laundering prosecution. As part of his plea agreement, Duboc agreed to forfeit all of his assets to the Federal government. Respondent's law firm, Coudert Brothers, was retained to handle matters relative to the forfeiture of Duboc's assets. Respondent was the partner in charge of these transactions. Legal fees owed to Coudert Brothers were to be paid from Canadian assets that had been turned over to DuBoc's criminal defense attorney, F. Lee Bailey. On May 22, 1996, Duboc executed a power of attorney enabling respondent to act on behalf of Duboc in all respects with his bank accounts. Between August 1, 1996 and November 19, 1996, respondent used DuBoc's power of attorney to transfer more than $1,550,000.00 from DuBoc's bank account in Austria to respondent's personal, Swiss accounts. Between 1996 and 1998, respondent transferred portions of these funds to other bank accounts he controlled in Hong Kong and Thailand for his personal use. Respondent failed to report any funds he received from DuBoc on his 1996 federal tax return, which understated his income by $1,551,863.00 and his tax due by $638,698.00. In subsequent conversations with government lawyers as well as attorneys from Coudert, respondent denied that he knew anything about assets in Austria that were under DuBoc's control.
On December 5, 2006, at the conclusion of the disciplinary proceedings, the New York Court determined that respondent had violated New York Disciplinary Rules 1-102 (a)(3) and (4)*fn7 and suspended respondent from the practice of law for five years. In re Uscinski, 36 A.D.3d 308, 310 (N.Y. App. Div. 2006) (per curiam).*fn8 The New York Court relied on the Special Referee's factual findings and assessment that respondent "willfully evaded income taxes in 1996 in an effort to hide the money he had improperly transferred from his client . . . [and that respondent had] l[ied] to the government during a January 1999 telephone conference regarding the location and purpose of the transfers." Id. (emphasis added).
B. The District of Columbia Court of Appeals
This court was informed, by letter dated April 24, 2003, that respondent was convicted of income tax evasion, and pursuant to D.C. Bar Rule XI, § 10 (c), we suspended respondent from the practice of law in the District. Further, this court ordered the Board to institute formal proceedings to determine what final discipline should be imposed on respondent, in light of whether or not respondent's crime involved "moral turpitude within the meaning of D.C. Code § 11-2503 (a)."*fn9 See In re Colson, 412 A.2d 1160, 1165 (D.C. 1979) (en banc) (noting that if a crime does not involve moral turpitude per se, requiring automatic disbarrment, the matter should be referred to a Hearing Committee for an examination of the underlying facts). The matter never went to a Hearing Committee, however, because the Board stayed the matter several times at the request of both respondent and Bar Counsel during respondent's incarceration and during the pendency of the New York disciplinary matter.
On December 5, 2003, Bar Counsel filed a Specification of Charges, which alleged that respondent's conduct underlying his conviction violated Rules of Professional Conduct 8.4 (b) (committed criminal acts (tax evasion and obstruction of justice) that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects); 8.4 (c) (engaged in conduct involving dishonesty, fraud, deceit, and/or misrepresentation); and 8.4 (d) (engaged in conduct that seriously interferes with the administration of justice). In addition, Bar Counsel petitioned the Board for formal disciplinary proceedings. In response, respondent requested that ...