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In Re David L. Shurtz

August 4, 2011

IN RE DAVID L. SHURTZ, RESPONDENT.


Reciprocal Discipline from the Commonwealth of Virginia (BDN164-09)

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

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 454598)

Argued July 12, 2011

Before GLICKMAN and FISHER, Associate Judges, and NEWMAN, Senior Judge.

Following an evidentiary hearing, the Circuit Court for Arlington County, Virginia, found, by clear and convincing evidence, that respondent had violated Rules 1.4 (b) and (c), Rule 1.8 (e), and Rules 8.4 (b) and (c) of the Virginia Rules of Professional Conduct. We will not repeat the details of respondent's misconduct, which are described in the Circuit Court's Memorandum Order, attached to this opinion as an Appendix. The Circuit Court suspended respondent from the practice of law in Virginia for eighteen months without apportioning the sanction among the various violations it found to have been proven. That decision was affirmed by the Supreme Court of Virginia, and the suspension became effective on June 25, 2010.

On September 29, 2010, this Court suspended respondent from the practice of law in the District of Columbia pending the final disposition of this reciprocal discipline proceeding. We also ordered respondent to show cause why he should not be suspended in this jurisdiction for an identical period of eighteen months. D.C. Bar R. XI, § 11 (d).

Under our rules, "[r]eciprocal discipline may be imposed whenever an attorney has been disbarred, suspended, or placed on probation by another disciplining court." D.C. Bar R. XI, § 11 (c).

Reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that:

(1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) There was such 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; or

(3) The imposition of the same discipline by the Court would result in grave injustice; or

(4) The misconduct established warrants substantially different discipline in the District of Columbia; or

(5) The misconduct elsewhere does not constitute misconduct in the District of Columbia.

Unless there is a finding by the Court under (1), (2), or

(5) of this subsection, a final determination by another disciplining court 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.

Id. Moreover, "[i]f the Court decides that a referral to the Board [on Professional Responsibility] is unnecessary, it shall impose identical discipline unless the attorney demonstrates by clear and convincing evidence, or the Court finds on the face of the record, that one or more of the grounds set forth in subsection (c) of this section exists." D.C. Bar R. XI, § 11 (e). Invoking subsections (c)(4) and (c)(5), respondent asserts that his loans to his client would not constitute misconduct in the District of Columbia. He argues, therefore, that he should only be suspended in this jurisdiction for a period of six months.*fn1 He does not attack the Virginia Court's findings with respect to the other violations.

It is true that the relevant rules respecting financial assistance to a client are different in Virginia and the District of Columbia. Virginia prohibits a lawyer from giving financial assistance except for "court costs and expenses of litigation."*fn2 The District of Columbia takes a more tolerant approach, authorizing a lawyer to provide "[o]ther financial assistance which is reasonably necessary to permit the client to institute or maintain the litigation or administrative proceeding."*fn3 Although respondent practiced primarily in the Commonwealth of Virginia, and his office was located there, he asserts that this aspect of his conduct had its "predominant effect" in the District of Columbia because his client lived here and the automobile accident giving rise to her personal injury claim occurred here. Therefore, he argues, the District of Columbia rule should govern our decision. See D.C. R. Prof. Cond. 8.5 (Disciplinary authority; choice of law).

We need not decide which jurisdiction's rule governs in these circumstances or whether respondent's conduct would violate the District of Columbia rule*fn4 because, even if we disregard the violation of Rule 1.8 found by the Virginia Court, respondent has not shown by clear and convincing evidence that the other "misconduct established warrants substantially different discipline in the District of Columbia." D.C. Bar R. XI, § 11 (c)(4).

The other violations found by the disciplining court in Virginia (and not contested by respondent here) included: ignoring calls from his client, failing to update her on the status of her case, and failing to inform her of settlement offers; signing his client's name to an authorization to release medical records; accepting a settlement without his client's authorization; signing her name to a settlement agreement; instructing two of his employees to sign as witnesses to the client's signature; and notarizing the client's signature, falsely attesting that she had "personally appeared" before him and had executed the ...


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