October 1, 2009
IN RE HENRY J. USCINSKI, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 412779)
On Report and Recommendation of the Board on Professional Responsibility (BDN130-03).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Argued March 31, 2009
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
A. The New York Court
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 the Board extend his time to file an answer until his release from custody, until the Eleventh Circuit's decision of respondent's direct appeal, or until March 1, 2004.
The Board agreed to give respondent an extension until March 1, 2004 to file his answer. On March 1, 2004, respondent filed a motion for an indefinite stay of the proceedings because he had been moved to a different correctional facility and, thus, was unable to communicate with his counsel. The Board then granted the motion and stayed the proceedings pending respondent's release from incarceration or notice from Bar Counsel or respondent's counsel that the conditions of respondent's incarceration had changed, permitting his assistance in the preparation of his defense. Ultimately, the Board continued the stay and ordered both Bar Counsel and respondent to notify the Board in writing within thirty days of issuance of discipline against respondent in either Connecticut or New York, stating what, if any, discipline was issued and what effect it should have on the stay in this matter.
In a January 31, 2007 letter, respondent informed the Board and Bar Counsel of the discipline imposed by New York, and on March 14, 2007, Bar Counsel filed with this court a certified copy of the New York Court's order suspending respondent for five years. The following day, on March 15, 2007, Bar Counsel requested that the Board continue the stay of the pending disciplinary proceeding based on respondent's conviction because the possible imposition of reciprocal discipline by this court (based on the New York Court's sanction) might obviate the need for a moral turpitude hearing on respondent's criminal conviction.On March 27, 2007, pursuant to D.C. Bar Rule XI, § 11 (d), we suspended respondent from the practice of law pending final disposition of a proceeding in the District of Columbia and ordered that Bar Counsel inform the Board of its position regarding reciprocal discipline and whether such discipline should be identical, greater, or lesser.
C. The Board's Recommendation
The Board makes two recommendations.*fn10 First, the Board recommends that respondent be disbarred, as a "substantially different discipline," for intentional misappropriation of client funds. Second, the Board recommends that the tax evasion issue be dismissed as moot. Looking to Bar Counsel's recommendations*fn11 and citing In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc), the Board found that respondent's conduct rose to the level of intentional misappropriation, "for which the presumptive sanction . . . is disbarrment." Furthermore, the Board reasoned that its decision was undergirded by respondent's failure to object to Bar Counsel's recommendation of disbarrment and the Addams presumption of disbarrment for reckless or intentional misappropriation.
Respondent took exception to the Board's Report and Recommendation and requested a briefing schedule from this court. Accordingly, we granted respondent until February 20, 2008 (forty days), to file a responsive brief to the Board's Report and Recommendation. Respondent moved for an extension of time, and we granted it - ordering that his brief be filed on or before April 11, 2008. On April 11, 2008, respondent filed his objections to the Board's Report and Recommendation. Bar Counsel then submitted a motion to strike because respondent had neither filed his April 11, 2008 pleading with the Board nor served a copy on Bar Counsel pursuant to D.C. App. Rule 25 (b). Bar Counsel also contended that respondent's April 11, 2008 pleading failed to comply with several other provisions of the Rules of the District of Columbia Court of Appeals. We denied Bar Counsel's motion to strike.
A. Standard of Review
When we review disciplinary cases, "[we defer] to the Board's recommended disposition unless the sanction is unwarranted or inconsistent with sanctions for comparable conduct." In re Drury, 683 A.2d 465, 468 (D.C. 1996) (quoting In re Slosberg, 650 A.2d 1329, 1330 (D.C. 1994)). When we review reciprocal discipline cases, we "can impose a greater sanction than that imposed in the other jurisdiction." Id. (quoting In re Dietz, 653 A.2d 854, 855 (D.C. 1995)). 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. See Ditton, supra, 954 A.2d at 989 (citing In re Jacoby, 945 A.2d 1193, 1198 (D.C. 2008), and 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 . . . ." Id. (quoting In re Zilberberg, 612 A.2d 832, 835 (D.C. 1992)); see also Jacoby, supra, 945 A.2d at 1198; In re Goldsborough, 654 A.2d 1285, 1287 (D.C. 1995) (citing Zilberberg, supra, 612 A.2d at 834).
B. Respondent Did Not Waive His Right to Oppose Greater Reciprocal Discipline
Respondent contends that his failure to contest Bar Counsel's proposed imposition of disbarrment for misappropriation before the Board was not a waiver of his right to oppose greater reciprocal discipline. We agree.
In In re Demos, 875 A.2d 636 (D.C. 2005), we addressed the issue of whether a respondent waived his right to challenge the Board's recommendation of greater reciprocal discipline. There, we noted that we "found no reported case in this jurisdiction in which the failure to participate in the Board's proceedings precluded an attorney from arguing against greater discipline." Demos, 875 A.2d at 641 (emphasis in original). Accordingly, we noted our obligation to at least "'satisfy [ourselves] that no obvious miscarriage of justice would result' from imposing the recommended sanction." Id. (alteration in original) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C. 1998)). Thus, "while respondent (or any attorney) may be barred from arguing to this court that identical reciprocal discipline should not be imposed after failing to make such an argument before the Board, we see no reason to preclude him from arguing against the imposition of greater discipline than that imposed by the original disciplining court." Id. Accordingly, where - like here - the recommended discipline is greater than that imposed by a sister court, respondent is entitled to challenge that recommendation. Id.
C. The Board Did Not Establish by Clear And Convincing Evidence That Respondent's Conduct Constituted Intentional Misappropriation, Thus Requiring Disbarrment
Respondent challenges the Board's recommendation for a "substantially different" sanction than what was imposed by the New York Court. He contends that the Board wrongly concluded that what the New York Court characterized as his "improper transfer of client funds" constituted "intentional misappropriation" in the District of Columbia. We agree.
Bar Counsel may rely on the "substantially different discipline" exception in D.C. Bar Rule XI, §11 in urging greater reciprocal discipline. D.C. Bar Rule XI, § 11 (c)(4); see Jacoby, supra, 945 A.2d at 1198; see also In re Coury, 526 A.2d 25, 25-26 (D.C. 1987). A two-step inquiry is necessary to determine if this exception applies. First, we consider whether "the misconduct in question would not have resulted in the same punishment here as it did in the disciplining jurisdiction[,]" In re Garner, 576 A.2d 1356, 1357 (D.C. 1990) (citing In re Hirschberg, 565 A.2d 610, 614 (D.C. 1989)); and second, "where the discipline imposed in this jurisdiction would be different from that of the disciplining court, we must then determine whether the difference is substantial." Id. (citing In re Brickle, 521 A.2d 271, 273 (D.C. 1987)). We have previously determined that there is a substantial difference between disbarrment and suspension. See In re Hilson, 953 A.2d 1018, 1019 (D.C. 2008) (per curiam); In re Grossman, 940 A.2d 85, 87 (D.C. 2007) (per curiam).
If respondent's conduct were determined to constitute intentional misappropriation, the appropriate sanction in the District of Columbia would be disbarrment, not suspension. See Hilson, supra, 953 A.2d at 1019 (citing Grossman, supra, 940 A.2d at 86-87) (finding disbarrment appropriate for intentional misappropriation where attorney "intentionally converted client funds for his own use"). District of Columbia law defines misappropriation as "any unauthorized use of client's funds entrusted to him [or her], including not only stealing but also unauthorized temporary use for the lawyer's own purpose, whether or not he [or she] derives any personal gain or benefit therefrom." Addams, supra, 579 A.2d at 194 n.9 (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983)) (alteration in original). Where an attorney acted intentionally in misappropriating client funds, we will usually order disbarrment. Id. at 196. Intentional misappropriation is such a serious offense because it compromises the integrity at the heart of the client-attorney relationship. Id. For this reason, intentional misappropriation warrants per se disbarrment. Id. at 198(explaining that, "in general, neither the usual mitigating factors, nor subsequent proper bookkeeping practices or client satisfaction can overcome the presumption that . . . disbarrment will be the appropriate sanction.") (internal citations omitted).
Respondent contends that the New York Court never used the word "misappropriation" in reference to his conduct vis-a-vis his client's funds. Respondent offers several other explanations he contends militate against the Board's finding that his conduct constituted intentional misappropriation: (1) that he had power of attorney to transfer those funds for payment of his services; (2) that simply because his client's Canadian account was established to pay attorney's fees, that did not preclude respondent from withdrawing funds from the Austrian account because he had been authorized by the client to do so; (3) that it was unclear at the time he transferred funds from his client's account to his own account whether those funds were the client's funds or the government's funds; and (4) that the withdrawn funds were legitimate funds that did not have to be relinquished to the government.*fn12 Absent a finding of intentional misappropriation, our court has declined to impose disbarrment as a per se sanction. See Addams, supra, 579 A.2d at 191 (noting that most cases of misappropriation warrant disbarrment unless the misappropriation was negligent). The New York Court did not characterize respondent's conduct as "misappropriation," in any form. Instead, the New York Court characterized respondent's conduct as the "improper transfer" of client funds.*fn13 Uscinski, supra, 36 A.D.3d at 310. The New York Court did not specify why the transfer was improper. The Board recharacterized respondent's conduct as "intentional misappropriation," despite the New York Court's finding that the conduct constituted an "improper transfer," as in In re Pennington, 921 A.2d 135, 143 (D.C. 2007), and asks this court to do the same. On this record, however, we cannot.
In Pennington, we explained that with the exception of instances of intentional misappropriation, we do not apply the "presumption" of disbarrment as an appropriate sanction.921 A.2d at 141 (citing Addams, supra, 579 A.2d at 191). In Pennington, the Maryland Court of Appeals found that the respondent committed, inter alia, violations of the Maryland Rules of Professional Conduct 8.4 (b) & (d) - i.e., "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation," and "engag[ing] in conduct that is prejudicial to the administration of justice," respectively. Id. at 139. These violations led the Maryland court to disbar the respondent. Id. (citation omitted). The respondent's disbarrment in Maryland was dictated by "a presumption under Maryland law that an attorney who engages in intentional dishonesty will be disbarred." Id. at 140. We went on to agree with the Board's recommendation that the respondent's Maryland misconduct would not warrant disbarrment in the District of Columbia, absent additional circumstances of aggravation that were not demonstrated. Id. Our determination was largely based on the fact that the Board recharacterized "the misconduct found by Maryland in a manner that [could not] be reconciled with Rule XI, § 11 (c)."*fn14 Id. at 142.
Similarly, in this case, the Board concluded that respondent committed an "intentional misappropriation" of client funds based upon its recharacterization of what the New York Court described as an "improper transfer." "Given these actions, we cannot help concluding that the recommended [discipline] by the Board reflects disagreement with the very nature of the misconduct found by [New York] - a disagreement that was beyond its authority in this reciprocal matter." Pennington, supra, 921 A.2d at 143 (citation omitted).
D. Respondent's Criminal Conviction Matter Should Not be Dismissed as Moot
Lastly, respondent contends that he is entitled to an opportunity to address the Hearing Committee on the matter of whether his criminal conviction, in the United States District Court for the Northern District of Florida, involved moral turpitude - as defined in D.C. Code § 11-2503 (a).*fn15 We agree.
Where we impose disbarrment as reciprocal discipline, we may dismiss a criminal conviction matter as moot and forego the moral turpitude inquiry. See In re Gailliard, 944 A.2d 1109, 1111-12 (D.C. 2008) (citing In re Novick, 619 A.2d 514 (D.C. 1993)) (holding that where a discipline proceeding involves both a criminal conviction and a reciprocal discipline matter, the court may impose reciprocal discipline without engaging in a moral turpitude inquiry on the criminal conviction if the resulting discipline would be the same if a moral turpitude inquiry had been conducted). Bar Counsel recommended to the Board that we adopt this approach here. The Board proceeded by recommending reciprocal discipline and dismissal of the criminal conviction matter as moot.
Here, we do not adopt the Board's recommendation that we impose the greater reciprocal discipline of disbarrment for "intentional misappropriation." We therefore decline to dismiss the criminal conviction matter as moot, and it is now necessary to determine whether respondent's tax evasion conviction involved moral turpitude. See D.C. Code § 11-2503 (a); see also Gailliard, supra,944 A.2d at 1111 (explaining that "if respondent ever seeks reinstatement, he will have to confront then, and the Board will have to resolve, the issue of whether his underlying conviction involved moral turpitude on its facts"); Shorter, supra, 570 A.2d at 765-66 (holding that tax evasion is not a crime of moral turpitude per se, but may be so under certain circumstances). That determination should be made by a Hearing Committee. See Casalino, supra, 697 A.2d at 12. Here, the Hearing Committee never had the opportunity to consider whether respondent's tax evasion conviction constituted "moral turpitude." Accordingly, "we remand this matter to the Board with instructions to remand it to the Hearing Committee for a determination . . . as to whether or not Mr. [Uscinski] was convicted of an offense involving moral turpitude on the facts." In re Sims, 844 A.2d 353, 366 (D.C. 2004), rev'd on other grounds, In re Sims, 861 A.2d 1, 2 (D.C. 2004).