The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 434709)
On Report and Recommendation of the Board on Professional Responsibility
Before BLACKBURNE-RIGSBY, Associate Judge, and PRYOR and REID,*fn1 Senior Judges.
This case arises out of the disciplinary proceeding involving respondent, G. Paul Howes, a former Assistant United States Attorney ("AUSA"), who wrongfully distributed more than $42,000 worth of witness vouchers in several felony prosecutions to individuals who were ineligible to receive them under 28 U.S.C. § 1821, as implemented by 28 C.F.R. § 21 (1986). Respondent compounded this initial misconduct by failing to disclose the voucher payments to either the court or opposing counsel, pursuant to District of Columbia Rules of Professional Conduct Rule 3.8 (e), Brady v. Maryland, and Giglio v. United States, even though such payments were relevant to the jurors' credibility determinations of key government witnesses' testimony.*fn2 Finally, respondent intentionally misrepresented to the court that such disclosures had been made. Respondent's egregious conduct resulted in the substantial reduction of sentences for at least nine convicted felons and violated District of Columbia Rules of Professional Conduct ("Rules of Professional Conduct") 3.3 (a), 3.4 (c), 3.8 (e), 8.4 (a), 8.4 (b), 8.4 (c), and 8.4 (d). At issue in this proceeding is the question of the appropriate sanction for respondent's conduct, and, for the first time, we are asked to consider the appropriate sanction in the context of misconduct by a federal prosecutor. A fractured five-to-four majority of the Board on Professional Responsibility ("Board") voted to suspend, rather than disbar, respondent. Divided in its recommendation for respondent's sanction, the Board issued four separate reports, with recommendations ranging in severity from a one-year suspension without a fitness requirement to disbarrment. Respondent, in his exception to the Board's report, urges the court to suspend him for a term of one year without a fitness requirement, as in In re McBride, 642 A.2d 1270 (D.C. 1994) (per curiam) and In re Hutchinson, 534 A.2d 919 (D.C. 1987) (en banc), highlighting mitigating factors, such as altruistic motivation behind the misconduct and absence of a disciplinary record. In its exception to the Board's recommendation, Bar Counsel argues that any mitigating factors regarding respondent's conduct are outweighed by the overwhelming aggravating factors and disbarrment is, therefore, the appropriate sanction for respondent's misconduct, consistent with the recommendation of four members of the Board and with our recent decisions in In re Cleaver-Bascombe, 986 A.2d 1191 (D.C. 2010) (per curiam) (hereinafter "Cleaver-Bascombe II")and In re Kanu, 5 A.3d 1 (D.C. 2010).
This court is granted substantial discretion to fashion a proportionate disciplinary sanction when the misconduct is novel to our jurisdiction and where the recommendations of the Board are divided. See In re Cleaver-Bascombe, 892 A.2d 396, 402 (D.C. 2006) (hereinafter "Cleaver-Bascombe I"); In re Addams, 579 A.2d 190, 192 n.3 (D.C. 1990) (en banc). Respondent's misconduct is decidedly egregious and, though we have not yet sanctioned a prosecutor in like circumstances, it is a logical extension of our prior cases to find disbarrment warranted over a lesser sanction. We are not dissuaded from our view that disbarrment is the appropriate sanction, despite respondent's exceptions and request for a mitigated sanction, as there is clear and convincing evidence that respondent misused federal witness voucher funds, misled the court and defense counsel, and violated his duties as a prosecutor, resulting in substantial reductions in sentences for several convicted felons. Nor do we accept respondent's contention that his cooperation with Bar Counsel, the absence of prior discipline, the absence of personal financial gain, or the delay in the proceedings are mitigating factors which should preclude imposition of our most stringent sanction. Respondent's misconduct was significantly compounded by the protracted and extensive nature of the dishonesty involved. We conclude, for reasons discussed below, that, on this record, disbarrment is the appropriate sanction.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent's violations of the Rules of Professional Conduct arose from his misuse of witness vouchers from 1993 to 1995, while he was an AUSA in the United States Attorney's Office for the District of Columbia ("USAO") investigating and prosecuting gang and drug-related murders in three cases: (1) in the Superior Court of the District of Columbia ("Superior Court"), United States v. Card, No. F-7682-91 (D.C. Super. Ct. 1994), United States v. Rice, No. F-6601-92 (D.C. Super. Ct. 1994), and United States v. Edwards, No. F-4437-92 (D.C. Super. Ct. 1994) (collectively, the "Card/Moore" case)*fn3 ; (2) in the United States District Court for the District of Columbia ("District Court"), United States v. Hoyle, No. CR-92-284 (D.D.C. 1994), United States v. McCollough, No. CR-92-284 (D.D.C. 1994), United States v. Goldston, No. CR-92-284 (D.D.C. 1994), and United States v. Harris, No. CR-92-284 (D.D.C. 1994) (collectively, the "Newton Street Crew" case)*fn4 ; and (3) an unrelated alleged sexual assault case (the "Jones" case).*fn5 As an AUSA, respondent had the authority to issue vouchers for payment of witness fees to individuals. See 28 C.F.R. § 21.4
(a) (1986) (which allows a fact witness to be paid an "attendance fee . . . for each day's attendance" at a judicial proceeding "for the time necessarily occupied in going to and returning from the place of attendance").*fn6 The regulation also allows for modest transportation and subsistence expenses.*fn7 However, 28 U.S.C. § 1821 (f) states that "any witness who is incarcerated at the time that his or her testimony is given . . . may not receive fees or allowances under this section," and 28 C.F.R. § 21.4 (d) reiterates this limitation on voucher use. See 28 C.F.R. § 21.4 (d) ("A witness in custody . . . is ineligible to receive the attendance and subsistence fees provided by this section."). Respondent stipulated that he, despite these regulatory limitations, issued vouchers to incarcerated witnesses, though he knew the practice to be prohibited, and provided vouchers to the "family and friends of government witnesses for unauthorized purposes."
The United States Department of Justice Office of Professional Responsibility ("OPR") conducted an internal investigation from March 1996 to February 1998 of respondent's conduct in the Newton Street Crew case.*fn8
OPR examined 719 vouchers, 684 of which "were signed by or on behalf of G. Paul Howes," entailing total payments to government witnesses in the amount of $140,918.14. OPR determined that many individuals "received payments that could not be explained adequately by anyone [OPR] interviewed," finding "strong evidence that [respondent] intentionally abused the witness voucher system in several ways." OPR concluded that this evidence gave "rise to a strong inference that many of the vouchers were issued improperly in that they did not compensate a witness for an appearance to prepare for or give trial testimony, or even to provide the sort of intelligence information provided by informants." OPR determined that any mitigating factors were outweighed by aggravating factors, which were overwhelming, including the extended duration of the repeated misconduct, respondent's issuance of vouchers even after the conclusion of his work at the USAO, and respondent's "non-disclosure of voucher payments made to relatives and girlfriends of government witnesses to the court and defense counsel," all of which demonstrated that respondent had "committed intentional professional misconduct."
Upon its completion, the OPR Report was disclosed, initially under seal, to the United States District Court for the District of Columbia, which ultimately resulted in each convicted defendant in the Newton Street Crew case filing motions for new trials based on respondent's misconduct. In March 2002, the government agreed not to oppose the four defendants' motions, instead stipulating to significantly reduced sentences. Mark Hoyle, originally sentenced to eight life terms, plus twenty-five years, had his sentence reduced to twenty-eight years. United States v. Hoyle, No. CR-92-284 (D.D.C. 1994). John McCollough, originally sentenced to nine life terms, plus eighty-five years, had his sentence lowered to twenty-eight years. United States v. McCollough, No. CR-92-284 (D.D.C. 1994). Anthony Goldston, originally sentenced to four life terms, plus five years received a reduced sentence of eighteen years, which ran concurrent with his Superior Court sentence. United States v. Golston, No. CR-92-284 (D.D.C. 1994). Finally, Mario Harris, originally sentenced to five life terms, plus twenty-five years, received a reduced sentence of eighteen years.*fn9 United
States v. Harris, No. CR-92-284 (D.D.C. 1994).
Defense counsel in the Card/Moore case became aware of the post-conviction litigation in the Newton Street Crew case, inspiring them to file similar motions to vacate their clients' convictions in the Superior Court of the District of Columbia. The government, again, declined to oppose the motions and instead offered stipulated dispositions. Javier Card, originally sentenced to sixty-nine years to life in United States v. Card, No. F-7682-91 (D.C. Super. Ct. 1994) received a lowered sentence of twenty-three years to life, with the execution of all but twenty-three years suspended. Jerome Edwards, originally sentenced to sixty-one years to life (with a mandatory minimum of thirty years) in United States v. Edwards, No. F-4437-92 (D.C. Super. Ct. 1994) received a reduced sentence of twenty-three years to life (with the execution of all but twenty-three years suspended). Finally, Antoine Rice in United States v. Rice, No. F-6601-92 (D.C. Super. Ct. 1994) was originally sentenced to forty years to life (with a mandatory minimum of twenty-five years) and received a lowered sentence of five to fifteen years.
A. Bar Counsel's Investigation
Bar Counsel learned of respondent's prosecutorial misconduct from newspaper coverage about post-conviction litigation in the Newton Street Crew case, obtained a partially redacted version of the OPR Report and subsequently instituted its own investigation. Following the investigation, Bar Counsel and respondent negotiated a Stipulation of Facts and Charges ("Stipulation"). In the June 2006 Stipulation, respondent admitted to multiple violations of six Rules of Professional Conduct in the Newton Street Crew, Card/Moore and Jones cases: (1) Rule 3.3 (a) (false statement of material fact or law to a tribunal); (2) Rule 3.4 (c) (disobeying an obligation under the rules of a tribunal); (3) Rule 3.8 (e) (failing to timely disclose evidence that tended to negate the guilt of the accused); (4) Rule 8.4 (a) (violating or assisting in violating the Rules of Professional Conduct); (5) Rule 8.4 (c) (engaging in conduct involving dishonesty or misrepresentation); and (6) Rule 8.4 (d) (engaging in conduct that seriously interfered with the administration of justice).
Bar Counsel subsequently filed a Petition Instituting Formal Disciplinary Proceedings and an accompanying Specification of Charges, which, in addition to violation of the six rules identified in respondent's Stipulation, accused respondent of two additional violations in the Card/Moore, Newton Street Crew, and Jones cases: Rule 8.4 (b) (committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness to practice law) and Rule 3.4 (b) (offering a prohibited inducement to a witness). In its petition, Bar Counsel recommended that Howes be suspended for two years with a fitness requirement, stating that it "[n]ormally . . . would recommend disbarrment for misconduct as serious and extensive as that of [r]espondent," but due to "mitigating factors [respondent's stipulations and cooperation with Bar Counsel, and the delay between the charged misconduct and the institution of disciplinary proceedings] . . . a substantial suspension of at least two years with a fitness requirement, would be adequate to protect the courts, the public, and the integrity and standing of the Bar."
B. Hearing Committee Report and Recommendations
An evidentiary hearing was held before Hearing Committee Number One of the Board on Professional Responsibility ("Hearing Committee") in May 2007, and a report was issued the following August. The two-person*fn10 Hearing Committee observed that Bar Counsel and respondent "fundamentally differ[ed] as to what the Stipulation mean[t], with [r]espondent perceiving only technical violations in areas where Bar Counsel allege[d] serious, substantive, and deliberate ethical breaches." This fundamental difference required the Hearing Committee to consider additional evidence of respondent's conduct beyond the conduct referenced in the Stipulation to reach its conclusions.
Ultimately, the Hearing Committee found that the following six Rule violations,*fn11 to which respondent stipulated, were supported by clear and convincing evidence:
1) issuing witness vouchers worth more than $42,000 to friends and relatives of government witnesses, not to serve as witnesses but to help the witnesses maintain their "resolve" to testify for the government in the Card/Moore and Newton Street Crewcases (in violation of Rules 3.3 (a), 3.4 (c), 8.4 (a), 8.4 (c), and 8.4(d));*fn12
2) "miscaptioning" witness vouchers by issuing federal court vouchers (Newton Street Crew case) to witnesses in connection with a Superior Court case (Card/Moore case), consequently impeding discovery in the Card/Moore case by frustrating opposing counsel's efforts to subpoena information concerning payments to government witnesses and continuing an intentional effort to conceal both the miscaptioning and respondent's misuse (in violation of Rules 3.3 (a), 3.4 (c), 3.8 (e), 8.4 (a), 8.4 (c), and 8.4(d));
3) using witness vouchers to compensate two retired police detectives for their work in assisting respondent as "case agents" in the Card/Moore and Newton Street Crew cases, for periods from 68 to 167 days, though they testified only for one to three days (in violation of Rules 3.3 (a), 3.4 (c), 8.4 (a), 8.4 (b), 8.4 (c), and 8.4 (d));
4) using witness vouchers to make unlawful and excessive payments to incarcerated witnesses, prohibited both by their plea agreements and under 28 U.S.C. § 1821 (f), in the Card/Moore and Newton Street Crewcases since there was "no federal money," and because he wanted to ensure that the incarcerated witnesses "wouldn't revert . . . [and] wouldn't get ...