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In re Sibley

March 11, 2010


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

On Report and Recommendation of the Board on Professional Responsibility (BDN 408-06)

Argued October 15, 2009

Before FISHER and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

On March 7, 2008, the Supreme Court of Florida imposed upon respondent Montgomery Blair Sibley a three-year suspension from the practice of law in that jurisdiction, with his reinstatement conditioned upon a showing of fitness. The Board on Professional Responsibility ("the Board") has recommended that this court impose identical reciprocal discipline as to practice in the District of Columbia. Respondent contends that the presumption in favor of identical reciprocal discipline is overcome in this case, because the proceedings in Florida did not meet the requirements of due process and because there was an infirmity of proof to establish the charged misconduct. We conclude that respondent has failed to support his contentions with clear and convincing evidence, and we therefore adopt the Board's recommendation.


Under the terms of respondent's divorce-settlement agreement, which was incorporated into a court order of divorce, upon his move from South Florida, respondent was required to pay his former wife $4,000 each month to fulfill his child-support obligation to their three children. Respondent left Florida in May of 2000 and moved to the District of Columbia. Thereafter, he failed to pay any child support for 25 months, falling $100,000 behind in his payments. On August 5, 2002, the Circuit Court for the Eleventh Judicial Circuit of Florida (the "Florida Family Court") issued an order requiring respondent to pay $30,000 of the past-due child support by October 1, 2002, $30,000 by November 1, 2002, and $40,000 by December 1, 2002, while also satisfying his ongoing child-support obligation of $4,000 per month. At a hearing on November 22, 2002, finding that as of that date respondent had failed to make any of the required payments, the court held respondent in civil contempt and ordered him incarcerated until he purged himself of contempt. The court notified the Florida Bar of the contempt finding.

In a separate matter, on November 3, 2004, the Florida Third District Court of Appeal ("the Third District") entered an order sanctioning respondent for filing "vexatious and meritless litigation." Sibley v. Sibley, 885 So. 2d 980, 988 (Fla. Dist. Ct. App. 2004). The court found that respondent had "repeatedly tried to re-litigate matters decided in earlier proceedings, without any legitimate basis to do so[,]" id. at 986, and had filed over three dozen non-meritorious appeals or lawsuits, including twenty-seven appellate proceedings in the Third District and "at least twelve actions in federal court against judges who have been assigned to his cases." See id. at 986, 987-88 & app. (cataloguing respondent's litigation history). The Third District Court order precluded respondent from any further self-representation in that court. Id. at 988.

On July 14, 2006, the Florida Bar filed a complaint against respondent, charging him with violating Florida Bar Rules 4-8.4 (h) (willful refusal to pay a child-support obligation) and 4-3.1 (non-meritorious claims and contentions). The Supreme Court of Florida appointed a Referee to hear the matter. The Referee found that respondent had willfully failed to pay child support and had initiated meritless litigation, in violation of Florida Bar Rules 4-8.4 (h) and 4-3.1, and recommended that respondent be suspended for three years. On March 7, 2008, the Supreme Court of Florida approved the Referee's report and ordered the recommended suspension (which, under Florida law, triggers a requirement to show fitness for reinstatement).

Respondent advised the District of Columbia Office of Bar Counsel of the Florida discipline, and Bar Counsel notified this court on April 11, 2008. On May 8, 2008, we suspended respondent on an interim basis and referred the matter to the Board for its recommendation as to whether we should issue a final order imposing identical reciprocal discipline, or whether a de novo disciplinary proceeding was warranted. In its Report and Recommendation dated November 14, 2008, the Board recommended that this court impose identical reciprocal discipline.


With regard to attorney-discipline cases that come to us as reciprocal matters, D.C. Bar R. XI, § 11 (c) establishes a rebuttable presumption in favor of this court's imposition of discipline identical to that imposed by the original disciplining jurisdiction. See In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992); see also In re Hallal, 944 A.2d 1085, 1087 (D.C. 2008). The presumption applies unless the party opposing discipline (or urging non-identical discipline) shows, by clear and convincing evidence, that an exception should be made on the basis of one or more of the grounds set out in Rule XI, § 11 (c) (1)--(5).*fn1 In re Zdravkovich, 831 A.2d 964, 969--70 (D.C. 2003). Rule XI, § 11 (c) imposes a "rigid standard," as to which exceptions "should be rare." Id. at 968, 969. "[R]eciprocal discipline proceedings are not a forum to reargue the foreign discipline." Id. at 969.


Respondent argues that an exception is warranted in his case on the basis of Rule XI, § 11 (c)(1) and (2). He relies on the following procedural history as the basis of his claims that the Florida proceedings were lacking in due process and that there was an infirmity of proof to support the Florida discipline.

During the proceedings before the Florida Referee, the Florida Bar filed a motion to strike the affirmative defenses that respondent raised in his answer to the Florida Bar Complaint.*fn2

Respondent asserts that the Referee granted the motion to strike "without affording [respondent] an opportunity to be heard in opposition." The Referee also did not rule on a request by respondent for the issuance of subpoenas duces tecum to the Florida Family Court judge who held respondent in contempt and to five judges of the Third District, all of whom respondent sought to question about what he alleges were the "true ...

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