Resignation Merits Reciprocal Discipline

An interesting issue of reciprocal was addressed recently by the full Massachusetts Supreme Judicial Court. The attorney had first been admitted in Connecticut. While serious bar charges were pending in Connecticut, the attorney returned to South Africa and did not contest the allegations. An order of disbarment was entered. He then sought (and was able) to vacate the disbarment and resign from the Connecticut Bar.

Massachusetts concluded that the “voluntary” resignation was no different from disbarment for reciprocal discipline purposes under the circumstances:

Becausethe respondent voluntarily elected to resign in Connecticut withoutpursuing his right to challenge the validity of the disciplinarycharges against him, he is not entitled to an opportunity to litigatethose Connecticut misconduct charges in the Commonwealth as a conditionprecedent to our imposing reciprocal discipline. See In re Richardson,692 A.2d at 434 (“We agree with Bar Counsel … that Richardson’s lossof an evidentiary hearing in Florida was his own choice; by electing toresign, he waived his right to a hearing where he could have contestedthe charges. We also agree that, as a consequence of Richardson’sFlorida waiver, we are entitled to rely–for purposes of final,reciprocal discipline–on the disciplinary result in Florida, properlycertified to this court, without affording Richardson the evidentiaryhearing on the Florida charges he elected to forego earlier”). See alsoAnusavice v. Board of Registration in Dentistry,451 Mass. at 795-796 (“Where, as here, charges of serious professionalmisconduct have been brought before the licensing board of a foreignjurisdiction, and the professional is afforded the full opportunity tochallenge the truth of those allegations but has chosen to waive thatopportunity, and to resolve the complaints by agreeing to discipline,we see no need for the Massachusetts board to take on the burden ofconducting an out-of-State investigation, and attempting to prove thoseallegations in order to impose reciprocal discipline”). [FN4]

Important policy reasons support the conclusion that the respondent’svoluntary resignation in Connecticut unaccompanied by an admission orfinding of misconduct warrants the imposition of reciprocal disciplinein Massachusetts without the need to litigate the validity of theConnecticut charges. If an attorney like the respondent may permanentlyresign in another State in the face of serious allegations ofmisconduct–here involving multiple clients–but do so withoutadmission of misconduct, and then practice in Massachusetts withoutrestriction unless bar counsel undertakes the burdensome and expensivetask of investigating and proving the other State’s charges, it would”tend [ ] to undermine public confidence in the effectiveness ofattorney disciplinary procedures and threaten[ ] harm to theadministration of justice and to innocent clients.” Matter of Lebbos, 423 Mass. at 755.  See Ramirez v. Board of Registration in Med., 441 Mass. 479, 482-483 (2004), quoting Marek v. Board of Podiatric Med.,16 Cal.App.4th 1089, 1098 (1993) (discussing same policy concerns inrelation to physicians who enter voluntary consent agreements withoutadmission to professional misconduct in one jurisdiction and seek topractice in another jurisdiction).

The case is Matter of Ngobani, decided on February 13. This link should take you the court’s web page. Note that the court relies on a District of Columbia case (In re Day) that I handled to support its conclusion. (Mike Frisch)