48 A.3d 174
D.C.2012Background
- New York Appellate Division sustained most charges against Salo and suspended him for one year with fitness conditioning; suspension took effect Aug 26, 2010 and NY reinstated him Feb 7, 2012.
- Salo’s misconduct involved mismanagement of a $198,000 PI settlement into his IOLA trust account and improper disbursements while maintaining a lien,
- including a $32,000 transfer to his personal account and back to IOLA to satisfy a lien, and keeping a small IOLA balance as low as $102.88.
- Salo conceded improper designation of checks and cash withdrawals from IOLA and acknowledged that his behavior reflected on his fitness; he attributed the conduct to PTSD and depression.
- New York court found venal intent lacking for intentional conversion but serious misappropriation, commingling, improper designation, improper cash withdrawal, and conduct reflecting adversely on fitness; sanctioned one-year suspension with a fitness requirement.
- DC Bar suspended Salo pending final disposition and Bar Counsel sought reciprocal discipline; the DC court ultimately found the NY sanction represented negligent misappropriation and imposed a six-month suspension without a fitness requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reciprocal discipline should be imposed given substantially different sanctions. | Bar Counsel argues no exception; identical discipline should apply. | Salo argues substantial-difference exception should apply. | Substantially different discipline applies; six-month suspension without fitness. |
| Whether the NY conduct constitutes negligent misappropriation under DC standards. | Bar Counsel treats as significant intentional misappropriation. | Salo contends misappropriation was negligent due to disability. | Conduct equated to negligent misappropriation in DC. |
| What is the appropriate DC sanction given the substantial difference finding? | Discipline should reflect NY one-year with fitness. | Six-month DC sanction without fitness is appropriate. | Six-month suspension without fitness, with no fitness requirement. |
| Should reinstatement or fitness conditioning apply given NY reinstatement and DC standards? | Reciprocal discipline policy requires comparable fitness considerations. | No automatic reinstatement; fitness evaluation may be required. | DC sentencing conditioned by fitness assessment; no automatic fitness condition presumed. |
Key Cases Cited
- In re Meisler, 776 A.2d 1207 (D.C. 2001) (rebuttal of reciprocal discipline and standard for exceptions)
- In re Williams, 3 A.3d 1179 (D.C. 2010) (de novo review of exceptions to reciprocal discipline)
- In re Jacoby, 945 A.2d 1193 (D.C. 2008) (two-step test for substantially different discipline)
- In re Garner, 576 A.2d 1356 (D.C. 1990) (substantial difference inquiry guidance)
- In re Fitzgerald, 982 A.2d 743 (D.C. 2009) (definition of substantial difference in reciprocal discipline)