On Report and Recommendation of the Board on Professional Responsibility (BDN 86-05).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and KRAMER, Associate Judges, and FERREN, Senior Judge.
The Supreme Judicial Court for Suffolk County, Commonwealth of Massachusetts, issued an order, dated June 26, 2007, indefinitely suspending respondent, Oscar W. Weekes, Jr. from the practice of law. The Board on Professional Responsibility ("Board") has "recommend[ed] that [this court] impose [on Mr. Weekes] the functionally equivalent reciprocal discipline of a five-year suspension with the requirement to show fitness as a condition of reinstatement." The Board also recommended that the suspension date run from June 24, 2008, when Mr. Weekes filed the affidavit required under D.C. Bar R. XI, § 14 (g) (2009).
Mr. Weekes opposes the recommendation that his suspension begin on June 24, 2008. He maintains that the suspension should date from October 19, 2005 when he submitted his affidavit following his temporary suspension by this court. Bar Counsel contends that the appropriate sanction should be disbarment, but he agrees with the Board that Mr. Weekes's suspension should date back to June 24, 2008. We adopt the recommendations of the Board.
The record reveals that the Houghton Mifflin Company ("HM" or "the Company") employed Mr. Weekes during 2001 and 2002 as an assistant general counsel. His duties included reviewing vendor requests for payment and authorizing payments to vendors and third parties. The stipulation of Massachusetts Bar Counsel and Mr. Weekes, filed in the Massachusetts disciplinary proceeding, specified that "[i]n May 2001, July 2001, and October 2001, [Mr. Weekes] intentionally and fraudulently caused three [HM] checks totalling $22,701 to be written to 'Equity R.P.'" Equity R.P. stood for "Equity Real Protection," purportedly a security company that provided service on behalf of HM. However, that company did not exist. Mr. Weekes actually gave the checks to the manager of his apartment building, "Equity Residential Property Management," to cover his residential rental payments.
The stipulation also indicated that in May 2002, Mr. Weekes "intentionally and fraudulently caused a [HM] check for $3,400 to be issued to Attorney Robert D. Keough," supposedly for legal fees pertaining to Mr. Keough's alleged representation of HM in an employment discrimination case. Instead, the check covered Mr. Weekes's share of rent for a Rhode Island summer vacation home.
When we temporarily suspended Mr. Weekes in 2005, pending the final outcome of the Massachusetts disciplinary proceeding, we informed Mr. Weekes of the requirement that he submit an affidavit in compliance with D.C. Bar R. XI, § 14 (g). The Board submitted a Report, dated January 20, 2006, noting that the October 19, 2005 affidavit submitted by Mr. Weekes did not comply with the applicable rule. The Board therefore recommended that "any period of suspension that ultimately may be imposed by [this court] as reciprocal discipline would run from the date Respondent files the affidavit required by D.C. Bar R. XI, § 14 (g)." More than two years after the Board's 2006 Report, and following other communications advising Mr. Weekes that he had not submitted an acceptable affidavit, he filed an affidavit complying with Rule XI, § 14 (g).
Mr. Weekes's sole contention in his appellate brief and during his main oral argument centered on the Board's position that his October 19, 2005 affidavit did not comply with D.C. Bar R. XI, § 14 (g), and that, consequently, his suspension should date from the time he filed his June 2008 affidavit complying with Rule XI, § 14 (g). Bar Counsel asserted in its brief, and at oral argument, that Mr. Weekes's sanction should commence as of June 24, 2008. Bar Counsel further insisted that Mr. Weekes should be disbarred because his misconduct constituted intentional misappropriation. During his rebuttal argument, Mr. Weekes opposed Bar Counsel's advocacy of his disbarment.
We first set forth the legal principles and authorities that will guide our analysis. D.C. Bar R. XI, § 11 (c) mandates reciprocal discipline ("Reciprocal discipline shall be imposed") except in certain limited situations.*fn1 As we have said previously: "In reciprocal discipline cases, the presumption is that the discipline in the District of Columbia will be the same as it was in the original disciplining jurisdiction." In re Meisler, 776 A.2d 1207, 1207-08 (D.C. 2001); see also In re Kennon, No. 09-BG-1327, 2010 D.C. App. LEXIS 17, at *2 (D.C. January 28, 2010). The limited situations in which this court will not impose reciprocal discipline are set forth in Rule XI, § 11 (c) (1) through (5); the exception in subsection (5) addresses the situation where "[t]he misconduct established warrants substantially different discipline in the District of Columbia."
"Under D.C. Bar R. XI, § 14 (g), a suspended attorney must file an affidavit demonstrating that he has satisfied his obligation pursuant to the Rule to, inter alia, notify clients of his suspension, withdraw from pending matters, return client property, notify opposing parties, and cease practicing law." In re Maignan, No. 07-BG-1362, 2010 D.C. App. LEXIS 29, at *7 (D.C. February 4, 2010). Section 14 (g) provides:
(g) Required affidavit and registration statement. - Within ten days after the effective date of an order of disbarment or suspension, the disbarred or suspended attorney shall ...