September 9, 2010
IN RE STEPHEN J. WILLIAMS, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 422088)
On Report and Recommendation of the Board on Professional Responsibility (BDN 295-05).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued February 17, 2010
Before WASHINGTON, Chief Judge, and KRAMER and FISHER, Associate Judges.
This matter comes before this court as a result of discipline imposed upon Stephen J. Williams by the Connecticut Superior Court. The Board on Professional Responsibility ("Board") recommends that we impose the non-identical reciprocal discipline of a six-month suspension with a fitness requirement. We agree with its recommendation of a six-month suspension but we conclude that Mr. Williams's conduct warrants the imposition of a requirement that he complete an ethics and practice course before he is reinstated, rather than that he make the full reinstatement showing.
I. Factual Background
Williams was admitted to the Bar of the District of Columbia Court of Appeals on January 3, 1990, on motion. At the time, he had also been admitted to practice law in Connecticut and New York. In 2006, Williams was suspended from the practice of law in Connecticut for six months for violations of the Connecticut Rules of Professional Conduct ("Connecticut Rules") in connection with his pro se representation in a traffic matter.*fn1 The Connecticut court concluded that Williams's conduct "constitute[d] a danger to the administration of justice and to the citizens of Connecticut who might unwittingly engage his ponderous services."Finding clear and convincing evidence thatWilliams violated Connecticut Rules 1.1, 3.5 (3), 4.4, and 8.4 (4),*fn2 the court suspended Williams's license to practice law for six months on July 18, 2005, and conditioned his reinstatement upon completion of an approved "course of instruction on legal ethics and Connecticut Practice and Procedure." Williams has failed to comply with these conditions and remains suspended in Connecticut.
New York subsequently imposed a six-month suspension as reciprocal discipline. District of Columbia Bar Counsel filed a certified copy of the Decision and Order of the Connecticut Court with this court on June 12, 2006, and a copy of the New York court's order on September 11, 2006.*fn3 On March 6, 2007, we suspended Williams on an interim basis pursuant to D.C. Bar R. XI, § 11 (d) (1991),*fn4 and directed the Board to either (1) recommend whether identical, greater or lesser discipline should be imposed as reciprocal discipline, or (2) determine whether the Board should proceed de novo.
In response, Williams filed several motions with the Board, including a motion to dismiss for lack of personal and subject matter jurisdiction, a motion to strike parts of Bar Counsel's brief, and a motion to compel discovery. The Board denied all of Williams's motions in a May 8, 2007, order. Williams moved to vacate this order, but the Board denied the motion and prohibited Williams from filing additional motions without prior leave from the Board, citing Williams's history of "filing repetitive motions." Williams also petitioned this court for an en banc rehearing of his interim suspension. We denied that petition on July 12, 2009.*fn5
II. Standard of Review
D.C. Bar R. XI, § 11 (f)(2) embodies a rebuttable presumption in favor of the imposition of identical reciprocal discipline unless the respondent demonstrates, or the court finds on the face of the record by clear and convincing evidence, that one or more of the five exceptions set forth in D.C. Bar R. XI, § 11 (c) applies. "A determination that one or more of the exceptions... applies is a question of law or ultimate fact. Accordingly, the court's review is de novo."*fn6 If none of the exceptions apply, "a final determination by a disciplining court outside the District of Columbia... that an attorney has been guilty of professional misconduct shall conclusively establish the misconduct for the purpose of a reciprocal disciplinary proceeding in this Court."
III. Legal Analysis
As a threshold matter, we must respond to Williams's challenge that we lack subject matter jurisdiction to impose reciprocal discipline. The District of Columbia Home Rule Act vests our court with the authority to impose reciprocal discipline on attorneys.*fn7 Section 431 of the Act provides that the District of Columbia Court of Appeals has jurisdiction over "any other matters granted to the District of Columbia courts by other provisions of law."*fn8 D.C. Code § 11-2502*fn9 is the "other provision of law" which, together with the legal principle of collateral estoppel, establishes that the disciplinary power vested in our court includes the power to impose reciprocal discipline in addition to original discipline.*fn10
Williams next contends that two of the exceptions to the imposition of reciprocal discipline enumerated by D.C. Bar R. XI, § 11 (c), specifically a denial of due process and an infirmity of proof, have been established by clear and convincing evidence.*fn11 He further argues that he was denied the assistance of counsel in Connecticut, that his privilege against self-incrimination was infringed, and that the proceedings against him were unfair and biased. In addressing Williams's arguments, D.C. Bar R. XI, § 9 (h) requires us to "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record...."
A. Exceptions to Reciprocal Discipline Pursuant to D.C. Bar R. XI, § 11 (c)
1. Due Process
D.C. Bar R. XI, § 11 (c)(1) provides that reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that "[t]he procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process...." Williams alleges that the Connecticut proceedings denied him due process because he was not provided proper notice and he was denied his right to confront witnesses and use the compulsory process.*fn12 We disagree. The Board found Williams had proper notice because he "participated extensively in the Connecticut disciplinary process, filed numerous motions, many of which are analogous to the motions he filed before our Court in the District of Columbia," and was "granted continuances... and repeatedly urged to seek the advice of counsel."The Connecticut court also cited the disciplinary rules Williams allegedly violated, providing Williams fair notice of the charges against him, and the possible sanctions attached thereto.*fn13 Thus, Williams has failed to provide any evidence, much less clear and convincing evidence, that he lacked proper notice.
Substantial evidence also supports the Board's findings on the issue of Williams's right to confront witnesses and to compulsory process.*fn14 The record shows that Williams subpoenaed three witnesses to appear at his 2005 Connecticut disciplinary hearing: the Assistant State's Attorney, the Deputy Chief Clerk of the Superior Court, and the presiding Superior Court Judge. All three were present in the courtroom during his hearing. Williams, however, failed to make an adequate proffer as to the testimony he planned to elicit from them. Thus, the Board correctly concluded that Williams had an "opportunity to confront his accusers and to elicit their testimony," but failed to do so.
2. Infirmity of Proof
D.C. Bar R. XI, § 11 (c)(2) provides that reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that "there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject.... " As noted by the Board, the Connecticut Court found "clear and convincing evidence" that Williams engaged in the charged misconduct. We decline to engage in a de novo review, for to do so would be inconsistent with the principles of collateral estoppel.*fn15 "[O]ur responsibility in reciprocal matters is not to sit in appellate review of the foreign disciplinary proceedings, in order to determine whether they conformed in every respect to local procedural and substantive law."*fn16 The burden is on the respondent to establish an infirmity of proof, which Williams has failed to sustain.
3. Other Claims
As Bar Counsel points out, Williams's remaining objections to the imposition of reciprocal discipline are not encompassed by any of the exceptions recognized by D.C. Bar R. XI, § 11 (c). Even if Williams's claims could be construed as an argument that "imposition of the same discipline by the Court would result in grave injustice,"*fn17 the Board properly found Williams's remaining claims to be meritless. Williams contends that he was denied the right to counsel, but the record clearly shows that the Connecticut court provided Williams multiple opportunities to retain counsel, and even explicitly encouraged Williams to do so.Williams also asserts that his Fifth Amendment privilege against self-incrimination was infringed when he was placed under oath in his disciplinary hearing. But the Fifth Amendment privilege against self-incrimination was inapplicable because Williams was not asked to testify to anything which could lead to criminal prosecution.*fn18 Finally, Williams argues that the Connecticut court was corrupt and that the proceedings against him were unfair. He does not, however, provide any evidence to support these accusations. Thus, the Board properly dismissed this argument.
B. Interim Suspension
Williams makes an additional due process argument with regards to his interim suspension pursuant to D.C. Bar R. XI, 11 (d).*fn19 He contends that "the order of suspension was entered without notice or hearing and without opportunity to the accused to explain the transaction and, if he could, to vindicate his conduct." This issue is not properly before us because this court has already made its final ruling on the issue of Williams's interim suspension and that decision is res judicata.*fn20 In any event, it is clear thatWilliams had proper notice and an opportunity to be heard.*fn21
C. Fitness Requirement
Bar Counsel urges us to adopt the Board's determination that a fitness requirement should be imposed, which the Board concedes would constitute substantially different discipline pursuant to the exception to the imposition of identical reciprocal discipline in D.C. Bar R. XI, § 11 (c)(4).*fn22 Because Bar Counsel seeks substantially different discipline, it bears the burden of proving that there is "clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law."*fn23 This Bar Counsel failed to do. Bar Counsel relied upon the Connecticut court's conclusion that Williams was "not fit to practice before the courts,"but also conceded at oral argument that these words are not dispositive. Because Williams's reinstatement in Connecticut is not conditioned upon a showing of fitness and the Connecticut court did not utter these words as a conclusion of law, we conclude that these words do not carry the significance which Bar Counsel asserts. Thus, we decline to adopt the Connecticut court's statement as a dispositive conclusion of law.
In the alternative, Bar Counsel suggests that we should require Williams to make a full fitness showing based upon his "misconduct that served to 'obfuscate, inflame and attenuate a simple legal proceeding.'" This blanket statement, however, fails to provide the necessary "clear and convincing evidence"*fn24 for requiring such a showing.
Instead, having concluded that some measure is nevertheless desirable to provide the public with sufficient protection against respondent's potential future misconduct, we hold that Williams's reinstatement shall be subject to the identical requirement imposed by Connecticut - namely that he complete an approved legal ethics course.*fn25
Williams fails to demonstrate that any of the exceptions to identical discipline apply in his case. D.C. Bar Rule XI, § 9 (h) instructs us to "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted." We agree with the Board's findings and recommended disposition, with the exception of its recommendation to require Williams to demonstrate fitness before reinstatement. We therefore suspend Williams from the practice of law in the District of Columbia for six months, which will be deemed to run from March 15, 2007, the date he filed an affidavit in compliance with D.C. Bar R. XI § 14 (g). In addition, Williams must comply with the same requirement imposed by Connecticut, namely the completion of an approved legal ethics course, before he may be reinstated.