"When the court disagrees with the Board as to the seriousness of the offense or the demands of consistency, however, the Board's recommendations are accordingly granted less weight." In re Kennedy, 542 A.2d 1225, 1228 (D.C. 1988) (citing In re Reback, 513 A.2d 226, 230-31 (D.C. 1986) (en banc)). More specifically, decisions of this court can serve as overall guidelines to assist in defining the permissible range of sanctions.
The Office of Bar Counsel and respondent filed exceptions to the report and recommendation of the Board on Professional Responsibility. The dissent relied on In re Kennedy, 542 A.2d 1225 (D.C. 1988) (ninety-day suspension); In re Zeiger, 692 A.2d 1351 (D.C. 1997) (sixty-day suspension); and In re Jackson, 650 A.2d 675 (D.C. 1994) (six-month suspension). We have received briefs and have heard argument from respondent, from the Board, and from Bar Counsel. Bar Counsel agrees with the Board's conclusion that respondent violated Rule 8.4(c), but recommends a six-month suspension rather than a public censure.
The dishonesty also need not involve representations to a client. In re Kennedy, 542 A.2d 1225, 1230 (D.C. 1988); In re Hutchinson, 534 A.2d 919, 925 (D.C. 1987) (en banc). 2.
"When the court disagrees with the Board as to the seriousness of the offense or the demands of consistency, however, the Board's recommendations are accordingly granted less weight." In re Kennedy, 542 A.2d 1225, 1228 (D.C. 1988) (citing In re Reback, 513 A.2d 226, 230-31 (D.C. 1986) (en banc)). More specifically, decisions of this court can serve as overall guidelines to assist in defining the permissible range of sanctions.
We have held that "dishonest actions committed outside of the representation of a client . . . need not necessarily be sanctioned to the same degree as similar acts committed in the course of representation." In re Kennedy, 542 A.2d 1225, 1230 (D.C. 1988). "The relation of an act to the practice of law illuminates and properly focuses [the appropriate discipline] inquiry . . . the essential purpose of . . . which is to question the continued fitness of a lawyer to practice his profession." Id. (citation and quotation omitted).
Respondent acknowledges that the Maryland court found a “misappropriation of client funds,” see Carithers, 25 A.3d at 198, but emphasizes that it made no finding that those funds were misappropriated from a client or that respondent injured or potentially injured any clients. [Respondent's Sanctions Brief at 8] He also acknowledges that he failed to open a trust account. However, he argues that this was “a fee dispute between a law firm and its ‘of counsel’ attorney” [Respondent's Sanctions Brief at 1] and compares his misconduct to that in In re Kennedy, 542 A.2d 1225 (D.C.1988), where this court imposed a ninety-day suspension. Therefore, respondent argues, the District of Columbia would impose substantially different discipline than disbarment.
Instead, the Board recommends a 90-day suspension distinguishing this matter from a case that the Hearing Committee relied on, In re Soininen, 853 A.2d 712 (D.C. 2004), in that this matter involves a respondent who was administratively suspended for failure to pay dues; whereas, In re Soininen involved a respondent who was suspended for ethical violations. The Board Report relies on In re Kennedy, 542 A.2d 1225 (D.C. 1988) to support a 90-day suspension for all of respondent's ethical violations. Bar Counsel has informed the court that he takes no exception to the Board's Report and Recommendation, and respondent has not filed any exception to it.
Cf. Davis v. Henderson, 652 A.2d 634, 636 (D.C. 1995) (upholding the Parole Board's promulgation of guidelines for granting parole, where the guidelines "merely formalize[d] the manner in which the Board exercises the discretion conferred upon it by [D.C. Code § 24-204 (2001)]."). Sitcov also argues that this court's decision in In re [ Thomas] Kennedy, 542 A.2d 1225 (D.C. 1988), forecloses the Bar from suspending him for nonpayment of dues. Specifically, Sitcov points to the court's statement that
Generally speaking, if the Board's recommended sanction falls within the wide range of acceptable outcomes, it will be adopted and imposed. "When the court disagrees with the Board as to the seriousness of the offense or the demands of consistency, however, the Board's recommendations are accordingly granted less weight." In re Kennedy, 542 A.2d 1225, 1228 (D.C. 1988) (citing In re Reback, 513 A.2d 226, 230-31 (D.C. 1986) (en banc)). Ultimately, the system of attorney discipline, including the imposition of sanctions, is the responsibility and duty of this court.
The risk to the public presented by respondent's conduct is all the more serious because it occurred in connection with his practice of law. See In re Miller, 553 A.2d 201, 205 (D.C. 1989); In re Kennedy, 542 A.2d 1225, 1230-31 (D.C. 1998). In In re Meisnere, 471 A.2d 269, 270 (D.C. 1984) (per curiam), this court concluded that perjury and perjury-related offenses involve moral turpitude per se and therefore convictions of such crimes mandate disbarment under D.C. Code § 11-2503(a) (2001).