Opinion
No. 99-BG-1625.
Submitted December 18, 2000
Decided January 11, 2001.
A Member of the Bar of the District of Columbia Court of Appeals On Report and Recommendation of the Board on Professional Responsibility.
Before Steadman, Farrell, and Glickman, Associate Judges.
Respondent was suspended from the practice of law in California, with a portion of the suspension stayed in favor of probation. The discipline stemmed from respondent's conversion to his own use of money from an oral trust established by his father (Melvin Belli, Sr.) on behalf of respondent and his then-minor sister. Respondent had been made trustee and administrator of the trust. His misappropriation of the funds was stipulated in California to have resulted from "gross negligen[ce]."
The matter is before us on the recommendation of the Board on Professional Responsibility for reciprocal discipline. In such a case both D.C. Bar R. XI, § 11 and notions of comity dictate that we give deference to the assessment of an attorney's conduct and the measure of discipline imposed by the other jurisdiction. See In re Velasquez, 507 A.2d 145, 147 (D.C. 1986) ("[T]here is merit in the idea of granting due deference — for its sake alone — to the opinions and actions of a sister jurisdiction with respect to attorneys over whom we share supervisory authority."). Moreover when, as in this case, neither the respondent nor Bar Counsel has objected to the Board's recommended discipline, the deference we normally afford to the Board's recommendation, see Rule XI, § 9 (g), is compounded. See In re Goldsborough, 654 A.2d 1285, 1288 (D.C. 1995).
Because of these considerations, we elect not to resolve in this case a potentially important question raised by California's determination that respondent acted with "gross negligen[ce]" in misappropriating funds from the family trust. In keeping with the California discipline, the Board recommends that respondent (1) be suspended from practicing law in the District of Columbia for two years, with a showing of fitness required for reinstatement, but (2) be permitted to seek a vacatur of the sanction upon a showing that he has satisfied the requirements of probation imposed by California. That recommendation is at least arguably inconsistent with our holding in In re Addams, 579 A.2d 190 (D.C. 1990) (en banc), that "in virtually all cases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence." Id. at 191 (emphasis added); see In re Cooper, 591 A.2d 1292, 1298 (D.C. 1991) (remanding to Board for consideration of whether attorney's conduct involved "something more serious than simple negligence."). Gross negligence does not easily equate with "simple negligence." On the other hand, in subsequent cases including this one, the Board has apparently assumed that negligence of any degree is insufficient to require disbarment under Addams: to require that sanction the misappropriation must at least be "reckless." Our decisions lend some support to that position. See, e.g., In re Micheel, 610 A.2d 231, 235-236 (D.C. 1992) (sustaining Board's conclusion, over determination of "simple negligence" by hearing committee, that attorney "misappropriated funds as a result of reckless disregard for the security of his client's funds and should be disbarred"); In re Powell, 646 A.2d 340 (D.C. 1994) (imposing reciprocal discipline of six month suspension with fitness requirement where Maryland court found misappropriation to be "`perilously close' to gross negligence").
The conceptual distinction between "gross negligence" and "recklessness" can be elusive in any context, and we believe — for the reasons stated earlier — that this case is an inappropriate one in which to decide whether grossly negligent misappropriation of funds comes within the near-automatic disbarment rule of Addams. It is unsuitable too because of the fairly sparse record before us of the conduct resulting in respondent's California suspension. We highlight the issue only as one that may need the attention of the Board and the court in the future.
That record does suggest, however, that respondent's conduct occurred as part of what appears to have been a family affair rather than in the context of an attorney-client relationship. See In re Confidential, 664 A.2d 364, 367-68 (D.C. 1995).
It is, therefore, ORDERED that respondent be suspended from the practice of law in the District of Columbia in accordance with the recommendation of the Board set forth above. This order is contingent upon respondent's compliance with the other terms and conditions of probation imposed by California. The sanction shall run nunc pro tunc from July 21, 1999, the date of the California suspension, respondent having complied with the requirements for receiving such retroactive treatment. See In re Slosberg, 650 A.2d 1329 (D.C. 1994)
So ordered.