*2 admis- Based on Weiss’ STEADMAN, erly obtained. Before RUIZ of sions, Specification filed a Bar Counsel WASHINGTON, Judges. Associate had violated alleging that Weiss Charges WASHINGTON, Judge: Associate R. OF OF COLUMBIA DISTRICT (c) (2001).1 8.4(b) and CONDUCT PROF’L Responsibili- Professional The Board on “Board”) (the that re- ty recommended 6, 1998, hearings May March 18 and On Randy suspended be spondent, following offered the and Weiss were held period of practice of law for a First, from the Weiss charges. his mitigation of suspended in years, year with one three the firm voluntarily notified he notеd that years Second, a of two probation psychia- favor of two his misconduct. of concludes that thera- therapist or until his actions were that Weiss’ trists concluded illegally necessary, for for secu- py longer is no need psychological result of a firm. The sus- depression-era from his law taking funds his father’s rity born of showing Third, of require psychia- a neither pension, does of poverty. fear likely repeat exception will fitness. filed trist believes that Weiss Weiss Finally, helped ar- and Recommendation Weiss Report Board’s this conduct. help re- procedures to a for more than one firm institute new guing that being divert- his of future funds light of duce the risk year is too harsh sanction firm. Despite Weiss’ ed from the mitigating circumstances. claims, of adopt the recommendation Hearing December On
the Board. stating report issued its Committee had been established misconduct
I. 8.4(b) (c). had violated Rule Weiss miscon- Despite the seriousness his law May Weiss notified Committee, duct, Hearing he had firm and the Bar Counsel that in mit- offered by the evidence persuaded firm. funds from the improperly diverted be sus- that Weiss igation, recommended in num- admitted that Specifically, Weiss re- a fitness year one without pended for he handled on behalf ber of transactions probation placed then quirement and May 1997 April firm between 1993 and proba- years. The recommended for two portions he diverted of title insurance fees quarterly to submit required Weiss firm’s escrow accounts to his own confirming therapist his certificates from personal account. He obtained the funds therapy. participation faith his by having payable made di- either checks rectly by placing him or the fees into Hearing agreed with the The Board 8.4(b) of the firm’s accounts over Rule that Weiss violated .escrow Committee took (c), which he had effective control. Weiss recommended that Weiss but fifty-four from the firm on occasions for a funds from the of law suspended $676,465.99. those sus- placed years three with one totaling period of thе exis- for two money pended probation in a market account in favor of anyone. therapist advised Bar Counsel was not disclosed to or until his tence of which necessary. longer therapy firm the en- was no Ultimately, repaid the was that condition improp- that he had tire amount (c) Engage respects; in conduct yer in other professional miscon- 1. Rule 8.4 states: "It is deceit, fraud, .(b) misrep- dishonesty, .. Commit a crimi- involving duct for a to: adversely lawyer’s on the nal act that reflects ...” resentation. trustworthiness, honesty, or fitness as law- tee, treating therapist quarterly Weiss’ submit but should be for three confirming good years certificates continued with one favor participation therapy. years probation faith two re- and no fitness
quirement. question before us is *3 II. whether the Board’s recommended sanc- prior dispositions is inconsistent with Weiss contends that the Board’s recom- comparable for conduct or is otherwise mendation that he be for more unwarranted under circumstances. the year than onе is excessive and fails to adequately take into mitigat- argues account the Weiss that in other cases where ing presented factors that were on his it was a law firm’s funds that were divert ed, reviewing behalf. supported imposition When recommended this court the disciplinary against attorney, sanction an lesser sanctions than those recommended case, therefore, and, adopt this court must the Board’s recom- the Board in this mended sanction “unless do so would the Board’s recommеndation should be re tendency jected foster a prior disposi toward inconsistent dis- as inconsistent with positions comparable comparable conduct or would tions for As support conduct. otherwise be proposition, unwarranted.” See D.C. Bar for this relies on two XI, § 9(g)(1). deciding reciprocal Paraga R. When whether re disciplinary In no, (D.C.2000) 1189, possibility there is the for inconsistent dis- 747 A.2d 1190 and In (D.C.1997). 876, positions, compare Berg, this court should “the re 694 A.2d In 877 misconduct, gravity frequency respondents the both of thоse cases the were any prior discipline, any mitigating year for one or less for divert court, cooperation ing factors such as with Bar funds from their firm. This Coun- law sel, remorse, illness, or stress” between has never ruled that diversion present past involving require the case and decisions. In re a law firm a lesser (D.C.1993). Steele, 196, In Paragano Berg 630 A.2d 199 sanction. Neither nor can determining particular proposition. whether a recom- be cited for that warranted, mendation is this court should Paragano, Jersey supra, was a New violation, examine “the nature of the the respondent suspend- case which the was circumstances, mitigating aggravating for six for writing ed months numerous protect the need to public, [and] checks from his law firm business account courts, profession.” In re personal expenses partner’s without his (D.C.1980). Haupt, 422 A.2d authorization, mischaracterizing and for mitigation While evidence offered the disbursements the firm’s records unique among adopting in this case is those cases order to conceal his actions. In attorneys im- improperly where have diverted the Board’s recommendation that we funds, Appler, of a six pose reciprocal see identical (D.C.1995) attorney suspension, month noted that the New (disbarring an ask ing directly Jersey specifically clients to him rather than court found that bill Gil, firm); presented see evidence to them failed to estab- also (D.C.1995) attorney attorney actually that the stole (disbarring who lish and, thus, they took funds from a friend outside the attor from thе ruled context), attorney only ney-client guilty the Board determined was mischarac- terizing personal should neither be disbarred nor disbursements. Because that, less, specific finding of that there receive a for one court’s theft, Hearing recommended was no actual we found that Commit- cir- mitigating that the suspension, month Weiss contends discipline imposed, a six by the Board upon under the cumstances relied reasonable circumstances year suspension prior and not with our deci- a оne recommending inconsistent sions. identical to the Hutchinson were almost offered As mitigating circumstances here. Berg, supra, respondent was sus- result, the recommended he reasons that pended it was after deter- inconsistent with in this case is sanction mined that he had diverted law firm funds cor- prior our While Weiss is decisions. for his own personal use. While the mis- mitigation rect that evidence offered case, of Berg, conduct in that was substan- mitigation here is similar to the evidence tially similar to the misсonduct Hutchinson, that is the presented *4 here, their personal circumstances differ similarity between the two that exists significantly. Berg, respondent In the conduct, cases. Hutchinson’s unlike this to agreed permanently retire from the case, any did breach of his not involve practice serving of law after the court clients or fiduciary obligation to his to his imposed if the court suspension, would Thus, contention, partners. law Weiss’ not agree primarily to disbar him. Based to that this court should look Hutchinson rеtire, promise permanently on his to and guidance of the similarities in the of Appeals deference to what Court mitigating between the circumstances pre- Maryland for the acknowledged State of ignores completely sented both career, long was a distinguished the gave to underlying the conduct which rise agreed court him for suspend year to one responsibility ethical Our is the violation. and not him. Berg’s disbar Because Board is not recom- to ensure that agreement permanently to retire tan- was dispositions mending inconsistent disbarment, agreed tamount to im- to It “comparable conduct.” is that con- pose reciprocal discipline. identical Unlike mitigating that we to see whether text look however, Berg, clearly Weiss intends to consistently applied. In being factors are to return of law once his conduct, comparable the absence of a miti- such, suspension is concluded. As his cir- analysis significance. gation is of little clearly distinguishable cumstаnces are from those presented Berg. significant steps to While Weiss took mitigate by self-reporting his misconduct Finally, argues even if this theft; making his efforts to ensure that court finds argu- his law diversion misappropriate money opportunity to unpersuasive, presented ment he has com- his firm firms will be more and other pelling mitigating circumstances future; seeking coun difficult severity any should proposed reduce the help to seling psychologi him address sanction for his conduct to a problems cal led him to his ethical more year. pri- no than one Weiss relies that Weiss unlaw lapse, fact remains marily on our decision In re Hutchin- fully diverted a amount mon son, (D.C.1987), substantial as support A.2d 919 significant a ey from his firm over Hutchinson, law for this proposition. year number of and a sanction respondent engaged illegal insider trad- wholly less inconsistent with would be ing then lied to the Securities and for com discipline imposed others Exchange to cover He up. Commission supra, 669 parable Appler, un- conduct. See for one his 731; Gil, testimony. supra, truthful A.2d at at 303. prior precedents Given those legal profession pro- and the confidence in the case, community by facts of this the Board stated that it affected tect clients and the actions, easily did not come I lawyer’s the conclusion that a conclude that on the case, should not be disbarred. Ultimate- facts of this the individual ly, attorney legal profession the fact that Weiss self-re- as a but ported his by violation led the Board to con- whole would be better served a more clude that the sanction places meaningful should be reduced lenient sanction that years suspension from disbarment to three incentive on disclosure of serious Further, suspended. with one misconduct. Board, obviously influenced the psycho- My nothing dissent has to do with dis- logical presented by evidence decid- agreement majori- over the or the Board’s ed not require showing of fitness as a ty’s gravity characterization of the of Ran- resuming prac- condition of Weiss his law dy fifty-four Weiss’s misconduct. tice. Both of these accommodations years, transactions over a of three significant
the Board are and were war- he embezzled hundreds of thousands of ranted under the circumstances. belonged kept dollars that firm. He
Accordingly, it ORDERED that re- money personal market *5 spondent, Randy is paid account and taxes on the interest from in of law the District of earned, it But for treating as his own. for a of years Columbia three with unusual fact that he did not touch the probation favor of funds, sadly Weiss’s conduсt is reminiscent therapist for two or until his advises people of other thefts from to whom law- Bar therapy longer Counsel that is no yers fiduciary responsibility. owe His necessary. only proba- The condition of conduct is criminal and involves dishones- quarterly 8.4(b) tion is that certificates from ty, and therefore violates Rule (c) treating therapist Weiss’ con- submitted of Responsi- the Rules of Professional firming his faith partic- continued bility.
ipation
therapy. Finally,
direct re-
ordinary
takes this case out of the
What
spondent’s
requirements
attention to the
happened
is what
next.
with re-
Filled
XI, §
of
BAR R.
D.C.
and their effect morse,
and, on
Weiss consulted his rabbi
eligibility
on his
for reinstatement.
advice,
partners
informed his
his
about
16(c).
§
D.C. BAR R. XI
repaid
what he had done: He then
So ordered.
(which, mentioned,
had not
he
used),
to which
foregoing the 17.2% share
RUIZ,
Judge, dissenting.
Associate
the firm
he would have been entitled had
This
that
compels
is a difficult case
us to
received the fees
the normal course.
disciplinary
paid
of our
for an оutside audit and
purposes
consider the
He also
system
attorneys
presents
helped
implement procedures
prevent
with
to
to
us
opportunity
an
to
future occurrences. The record in-
to choose a sanction
similar
that,
voluntary
that
but for his
disclo-
goals. Bearing
further those
mind
dicates
sure,
would not have
overarching purpose
of the
Weiss’s misconduct
system
part-
ceased to be a
punish
is not to
but to enhance
been revealed.1 Weiss
only as
but as title
insurance is nоt shown on
settlement
1. Weiss acted not
counsel
Generally,
agent,
compensated
the licensed title insur-
insurance
and was
statement.
closing
capacities.
testimony,
agent
retains
In his
Weiss ex-
ance
who conducts the
both
that,
fees,
portion
plained
his
her account a
of the title
unlike
the cost of title
therapy
that
is no
therapist
He
his
advises
the firm
his disclosure.
ner of
after
that
For the reasons
firm, however,
necessary.
longer
associated 'with the
remains
follow, I
that the rеcommended
partners have indicated
conclude
his former
it is too
because
sanction
inconsistent
they
upon
will
his status
con-
is
review
Most
to other cases.
comparison
harsh
proceedings.
of these
Weiss has
clusion
is
recommended sanction
important,
psychiatrists,
examined
two
both
been
not ade-
does
were moti-
also unwarranted
of
advise
his actions
whom
promoting
interest
he
insecurity,
quately
extreme
has
serve
vated
Instead,
I would
voluntary
to
and that he is
disclosure.
responded well
treatment
three-
recommended
suspend the entire
unlikely
repeat
his misconduct. The
con-
suspension
in favor
similarly
found that
Hearing Committee
therapy
on the continuation
unlikely in future mis- ditioned
engage
Weiss is
that thera-
therapist
until Weiss’s
advises
conduct.
required.
no
py
longer
is
decision to disclose
miscon-
Weiss’s
have dis
voluntarily
principal
case where we
duct
is not
unusual as a
fact;
reporting
precedent
it is
without
cussed
of misconduct
matter
also
(D.C.
Hutchinson,
Rеjection
disciplinary
of the
our
cases.
(en banc).
1987)
case,
buying
options
in this
After
call
Board’s recommendation
friend,
therefore,
tip
Hutchinson commu
tendency
will
“foster a
to- on
nicated
inside information about
dispositions
compa-
ward inconsistent
lied un
simply
impending
rable conduct” because we
have
tender offer. He then
case
oath
of an
investi
never had a
like this one.2 D.C. Bar
der
in the course
SEC
XI,
majority adopts
§
the insider
9(g).
gation
up
R.
cover
source
id.
recommended
information and his own actions. See
sanction
*6
misstate
years
year suspended
three
with
in at 921.
later recanted his
one
He
truth.
In a civil en-
favor of
two
or until ments and told the
and,
(in
premium
insurance
as a commission
this
ness
candor that
has shown
percent) remitting
case 80
the rest as to the
opposite. See In
some
were the exact
company
title insurance
for its risk associated
(D.C. 1995) (disbarring
Appler,
re
forcement
brought by
likely
action
where was not
to be
$72,000
agreed
Hutchinson
to surrender
Hutсhinson made
tactical decision to dis-
profits.
id.
plead guilty
See
He also
to a
pressure
close
under
of an
in-
SEC
misdemeanor
Ex-
under
the Securities
If
vestigation.
suspended
Hutchinson was
(a)
change
§
Act of
15
ff
U.S.C.
a situation where he dis-
(1982).
ensuing
See id.
In the
discipline
closed in the course of an impending inves-
case, we noted that his eventual coopera-
tigation,
truly
whose disclosure was
mitigated
his offense and
voluntary,
not
should
for two
him
year.
for one
See id at 924-25.
years.
additional
apply
To do so is to
inconsistent sanctions.
majority
dismisses the relevance of
the more lenient sanction in Hutchinson
The recommended sanction is also “un
ground
that the underlying miscon-
in light
warranted”
of “the nature of the
duct in the two cases is different. But the
violation,
mitigating
aggravating
question
differences are immaterial on the
circumstances,
protect
the need to
Although
sanction.
un-
Hutchinson’s
public,
legal profes
the courts and the
testimony
truthful
and disclosure of inside
sion,”
Haupt,
information and Weiss’s
embezzlement
(D.C.1980), and the moral fitness of the
different,
firm funds are
both involve dis-
Smith,
attorney. See In re
crimes3;
honesty and
punishable
are
(D.C.1979).
violation, though
ad
both constitute
violations
the rule mittedly grave,
fully
has been
cured. No
against engaging in dishonest conduct or
trust,
client
or
prime
concern of
committing
impugns
a criminal act that
system,
the disciplinary
were involved.
lawyer’s honesty,
trustworthiness or fit-
misconduct,
The direct victims of the
Moreover,
lawyer.4
ness as a
trad-
insider
partners,
Weiss’s
have been made
ing
typе
is a
of theft from investors who
financially,
whole
and continue to include
do
have the benefit of inside informa-
him in
practice.
their law
moral
Weiss’s
tion to
gain.
avert
loss or realize
fitness,
is evidenced
his decision to self-
Hutchinson, 534 A.2d at
(noting
report, the actions he took to correct his
in consent
settling
order
the SEC civil en-
misconduct,
any
and the absence of
prior
forcement action
profits
Hutchinson’s
anticipated problem
with the
*7
trading
insider
were distributed to sellers
system.
Thus,
options).
of stock
I disagree that
remaining question
the
So
is what sanc-
the
misconduct
the two cases is not
protect
public,
tion will best
the
the
comparable.
significantly
What is
differ-
profession and the courts.
I do not dis-
nothing
suggests
ent is that
in Hutchinson
a
pute
that
that
valuable function of sanction is
trading
gone
the insider
would have
value,
undetected,
immediately
as
the
its deterrent
and that a sanction of
SEC
Weiss,
an
investigation.
might
mounted
Unlike
routine cases deter
reported
who
engaging
his misconduct to his
others from
similar conduct.
and to Bar
fidelity
Counsel under circumstances But
to the facts of this case re-
Here,
8.4(b)
lying
applicable provision
3.
In Hutchinson we noted that
the
is Rule
felony punishable by imprisonment
(c).
SEC is a
predecessor
and
at issue in Hutchin-
both,
$10,000,
for five
or a fine of
1-1.02(A).
son was D.R.
(1982),
§
lying
under 18 U.S.C.
and that
perjury
§
under oath is
under 18 U.S.C. 1621
(1982)
(1981).
§
and D.C. code
22-2501
Hutchinson,
that opportunity. A.L., Appellant. Larry D. appellant. Williams for
No. 00-FS-1541. Bixler, Sidney Corporation R. Assistant District of Appeals. Columbia Court of Counsel, Teal, with whom Arabella In W. terim Corporation Counsel at the time the Argued Nov. 2003. filed, Reischel, brief was Charles L. Depu Decided Dec. ty Corporation Counsel at the time the filed,* Rosalyn was brief Calbert Groce, Supervisory Counsel, Corporation brief, were on the for the District of Co lumbia. TERRY, SCHWELB,
Before GLICKMAN, Associate Judges. SCHWELB, Judge: Associate Following factfinding A.L., hearing, juvenile, guilty pos- found unlawful marijuana. session of appeal, pres- On he evidentiary ents a claim of insufficiency. We affirm.
Viewed, be, light as must most T.M., Distriсt, favorable to the see (D.C.1990), the evi- dence showed that Ralph Officer Shumac of the Metropolitan Department Police (MPD) walking observed A.L. down the shiny object street with a in his hand. object Shumac believed that was a plastic bag. Upon arrival police, making eye and after contact with Officer Shumac, A.L. detoured down a stairwell laundry towards the locked room of an *9 house, apartment stayed in the stairwell seconds, for a few and then returned to the * filing Mr. died Reischel after the of the brief.