In re Silva
29 A.3d 924
| D.C. | 2011Background
- Respondent Silva was found to have committed serious Rule violations including dishonesty and forgery in a real estate transaction matter; the Board recommended a three-year suspension with a fitness requirement and reinstatement conditioned on demonstrated fitness; Bar Counsel objected to the sanction but did not object to the Board’s factual findings; the court applied deferential review and adopted the Board’s sanction; the effective suspension date hinges on Rule XI, § 14(g) filing and notice requirements; prior discipline from Virginia was also considered in the reciprocal matter.
- Respondent’s misconduct involved drafting and signing an ERA (easement relocation agreement) without completion, forging signatures and notarizations, and falsely informing the client and partner that the ERA was recorded; he later lied about sending construction notices; the firm incurred substantial costs resolving the matter and terminated him; disciplinary proceedings revealed extensive dishonesty toward Bar Counsel and the Hearing Committee, including false statements about addiction and treatment; the Board found aggravating factors and rejected disbarment, endorsing a three-year suspension with fitness.
- The court noted the Board’s disposition falls within a wide range of acceptable outcomes and emphasized consistency with comparable cases; it rejected Bar Counsel’s push for disbarment based on the record and precedent; it concluded the sanction is unimpeachable under deferential review and within the Board’s discretion.
- The subsequent Kersey mitigation defense was largely rejected; the court held that cocaine addiction did not excuse the misconduct under Marshall; the court imposed a three-year suspension with fitness and required proof of fitness before reinstatement; the court also addressed the reciprocal Virginia discipline and directed publication of that action on the D.C. Bar website.
- Respondent’s suspension is effective from the date he files the Rule XI, § 14(g) affidavit (or later if necessary), and subject to fitness for reinstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s three-year suspension with fitness is appropriate. | Bar Counsel urged disbarment given misconduct. | Board’s three-year suspension with fitness within comparable precedent. | Three-year suspension with fitness adopted. |
| Whether Respondent’s conduct violated 8.4(b) and related statutes. | Bar Counsel proved forgery and criminal acts. | Forgery evidenced but not all statutory elements; not all claims met. | Rule 8.4(b) proven; 8.4(c) and others also supported sanction. |
| Whether the District of Columbia Code § 22-1404 notary issue was proven. | Respondent impersonated notaries. | Statutory element requiring impersonation and attempt to exercise notary powers not proven. | Not found to violate § 22-1404; no notary impersonation proven. |
| Whether Kersey mitigation could justify lesser sanction. | Mitigation due to addiction should lessen sanction. | Marshall bars Kersey-based mitigation for cocaine addiction. | Kersey mitigation rejected; sanction remains three years with fitness. |
Key Cases Cited
- In re Slaughter, 929 A.2d 433 (D.C. 2007) (forgery and misrepresentations; dishonesty sanctions considered in context of discipline)
- In re Goffe, 641 A.2d 458 (D.C. 1994) (pattern of dishonesty; sanctions guidance; disbarment considerations)
- In re Pelkey, 962 A.2d 268 (D.C. 2008) (extensive dishonesty; comparison for sanctions; fitness considerations)
- In re Marshall, 762 A.2d 530 (D.C. 2000) (Kersey mitigation limitations for cocaine addiction)