Fitness

In a complicated reciprocal discipline matter involving a series of sanctions imposed in New Jersey, the District of Columbia Court of Appeals determinated that proof of fitness is required for D.C. reinstatement.

The matter involves reciprocal discipline for Respondent’s fourth and fifth New Jersey sanction.

Senior Judge Thompson authored the opinion

Here, several aspects of the record lead us to conclude that a fitness requirement is warranted. First, respondent’s New Jersey disciplinary history shows a pattern of prolonged and repeated neglect, affecting a large number of clients, over a period of many years. We have said that one “circumstance that warrants imposing a condition on the resumption or continuation of practice is repeated neglect of client matters or a repeat of misconduct of the type for which a respondent was previously disciplined.” Guberman, 978 A.2d at 211; see also In re Boykins, 999 A.2d 166, 176 (D.C. 2010) (explaining that “prior discipline” and “repeated misconduct” weigh in favor of a fitness requirement). We note that this factor is partially mitigated in respondent’s case by (what we understand to be) the fact that his wife will no longer be involved in his practice and that his reinstatement in New Jersey is conditioned upon practice monitoring. See Adams, 191 A.3d at 1122 (declining to impose a fitness requirement where steps had been taken to “reduce[] the likelihood” that the circumstances leading to severe client neglect would be repeated and imposing practice monitoring instead as a condition of reinstatement). However, as the DRB noted in its report regarding respondent’s most recent discipline, respondent’s “significant history of repeating misconduct, despite taking corrective steps, precludes . . . weighing these alleged remedial measures as significant mitigation.” We similarly are unable to regard respondent’s remedial measures as sufficient to allay serious doubt about his fitness to practice.

Next, while respondent has shown a degree of remorse and general acceptance of responsibility, respondent nonetheless has an established pattern of downplaying the severity of his conduct and deflecting blame to others. He focuses most often on his wife, but he has also deflected blame to his counsel in disciplinary proceedings, the courts, and the vulnerable clients he has represented…

This brings us to our final significant concern: respondent’s repeated lack of candor in his disciplinary proceedings both in New Jersey and before this court. We have already noted that the DRB found respondent’s testimony not credible on many factual points.

The Associate Judges Easterly and McLeese concur

It is true, as Judge Thompson notes, that New Jersey automatically imposes a fitness requirement when an attorney has been suspended, whereas this court does not. Supra at 17-19. Our rules, however, contemplate the possibility that an original disciplining jurisdiction might take a different approach to the imposition of sanctions than this court does. The solution reflected in our rules is to presume identical discipline but permit a departure from identical discipline if an attorney can carry the burden of proving that an exception should be made.

(Mike Frisch)