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In re FitzGerald

October 22, 2009


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

On Report and Recommendation of the Board on Professional Responsibility

(BDN 376-07)

Argued September 21, 2009

Before REID and THOMPSON, Associate Judges,and KING, Senior Judge.

Respondent Desmond P. FitzGerald has been a member of the District of Columbia Bar, with inactive status, since January 8, 1999. On September 24, 2007, the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts ("Massachusetts Board") issued an Order of Public Reprimand to respondent for violating Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.7 (b) (personal conflict of interest), and 1.16 (a)(1) (failure to withdraw representation) of the Massachusetts Rules of Professional Conduct.*fn1 The Massachusetts Board notified Bar Counsel in this jurisdiction of respondent's disciplinary violations, and Bar Counsel filed a certified copy of the Order of Public Reprimand with this court on December 13, 2007. We issued an interim order on January 7, 2008, directing the Board on Professional Responsibility (the "Board") to advise the court as to whether (1) identical, greater or lesser discipline should be imposed as reciprocal discipline, or (2) the Board elected to proceed de novo. The Board issued its report on July 24, 2008, recommending that the court impose a 30-day suspension as "substantially different reciprocal discipline."

I. The Governing Rule

If the Massachusetts discipline had been a suspensory sanction or disbarrment, we would proceed immediately to our analysis of whether to accept the Board's recommendation, employing the "rebuttable presumption that the sanction imposed by this court in a reciprocal discipline case will be identical to that imposed by the original disciplining court." In re Beattie, 956 A.2d 84, 85 (D.C. 2008) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)). However, effective August 1, 2008, this court amended D.C. Bar R. XI, § 11 (c) so that, in pertinent part, it now reads as follows:

Standards for reciprocal discipline. Reciprocal discipline may be imposed whenever an attorney has been disbarred, suspended, or placed on probation by another disciplining court. It shall not be imposed for sanctions by a disciplining court such as public censure or reprimand that do not include suspension or probation. For sanctions by another disciplining court that do not include suspension or probation, the Court shall order publication of the fact of that discipline by appropriate means in this jurisdiction.

D.C. Bar R. XI, § 11 (c) (italics added). Thus, amended Rule XI, § 11 (c) establishes a change in our procedure for handling certain cases that we previously treated as reciprocal-discipline cases. If the amended rule applies in the instant case, it dictates that we impose no reciprocal discipline, but that we instead order Bar Counsel to publish the fact of the Massachusetts Order of Public Reprimand.

We did not state in the amended rule whether it would apply to cases already pending before us as of August 1, 2008 (which was the posture of this case once the Board filed with us its July 24, 2008 Report and Recommendation).*fn2 Ordinarily, when there is a change in a statute or rule that effects a change in procedure, the amended law may be applied to all cases that are pending on the effective date of the change.*fn3 See DeGroot v. DeGroot, 939 A.2d 664, 670 n.5 (D.C. 2008) (citing Duvall v. United States, 676 A.2d 448, 450 (D.C. 1996) ("laws which provide for changes in procedure may properly be applied to conduct which predated their enactment")).*fn4

That principle permits us to follow the amended rule in this case. As Bar Counsel points out, however, we did not follow this course in our recent opinion in In re Amberly, 974 A.2d 270 (D.C. 2009). The opinion in that case notes that, on June 13, 2008, after the Virginia State Bar Disciplinary Board had imposed the sanction of an admonition (with terms requiring that Mr. Amberly complete six hours of continuing legal education within a year), the Board recommended to this court that we impose the substantially different discipline of a 30-day suspension. Explaining that we "perceive[d] no unfairness in applying to [Mr. Amberly] the rules governing reciprocal discipline that were in effect both at the time of his misconduct and when the Virginia Board issued its ruling," id. at 273 n.2, we applied the pre-August 1, 2008 rule, and we went on to accept the Board's recommendation. Because of this precedent, because we similarly perceive no unfairness in applying the previous rules here, and because Bar Counsel informs us that there are few if any other pending matters that straddle the August 1, 2008, effective date of the new rule and that will present a similar issue about which rule to apply, we have determined to resolve this case under the pre-August 1, 2008 rule. At the same time, as we proceed to our analysis of whether to impose identical or different reciprocal discipline, we deem it appropriate to treat the result that would have ensued under application of the new rule -- publication of the Massachusetts order of public reprimand -- as a factor that weighs at least somewhat in favor of identical reciprocal discipline (a public reprimand) and weighs against imposition of a (more severe) suspensory sanction.

II. Background and the Massachusetts Discipline

In 1998, respondent began representing a client who sought political asylum in the United States. After an immigration judge denied the client's application on August 13, 1998, respondent filed a notice of appeal*fn5 "but failed to ensure that the notice of appeal was received by BIA within 30 days as required."*fn6 Although respondent promptly notified the client that the appeal had been dismissed, he did not inform the client of a possible claim of ineffective assistance of counsel as a result of the untimely filed notice of appeal. After the BIA dismissed the appeal on January 21, 1999, respondent filed a motion three days late to reconsider the dismissal, but "failed to ensure that the motion was received by BIA within 30 days of the BIA decisions as required."*fn7 The BIA denied the motion as untimely. Again, respondent informed the client that the motion had been denied, but he failed to inform the client that he may have an additional claim of ineffective assistance of counsel as a result of the untimely filed motion for reconsideration.

Respondent continued to represent the client, pursuing alternative paths to legalize the client's immigration status, including a diversity immigrant visa program and an application for labor certification, but these efforts were not successful. In 2002, the client was arrested under a final deportation order. In June 2002, respondent filed a motion to reopen ...

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