Reciprocal Surprises

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A lawyer disciplined for misconduct in one state is subject to reciprocal discipline in every other jurisdiction in which he or she is admitted to practice.

Reciprocal discipline is hard to avoid. Most state-level disciplinary authorities require lawyers to notify them if they have been disciplined in another jurisdiction. Authorities also have access to the ABA’s National Lawyer Regulatory Data Bank, a repository of cases reported voluntarily by agencies around the U.S.

Reciprocal discipline cases usually result in identical sanctions. A second jurisdiction may decide, however, to impose a less severe sanction. More severe sanctions also may be sought in reciprocal discipline cases, although jurisdictions disagree on their permissibility.

The Utah Supreme Court recently held that its lawyer discipline rules do not permit stricter reciprocal discipline. In re Welker, 100 P.3d 1197 (2004).

In that case, H. Delbert Welker, a lawyer licensed in Utah and California, was suspended and placed on four-year probation in California for misconduct in four matters involving neglect, misappropriation of client funds, and also for failing to report to the State Bar of California that he had previously been suspended in Utah.

The Utah State Bar’s Office of Professional Conduct subsequently sought disbarment for Welker in a petition filed under the reciprocal discipline provision in Rule 22 of the state’s Rules of Lawyer Discipline and Disability.

Welker objected, contending that, because the rule addresses “equivalent discipline,” it allows equal or lesser sanctions than California meted out, but not more severe discipline. The trial court agreed.

The Utah Supreme Court affirmed, noting that Rule 22 requires equivalent discipline unless 1) there was a deprivation of due process in the other state’s hearing, 2) equivalent discipline would result in grave injustice, or 3) the misconduct warrants “substantially different discipline” or is not misconduct in Utah. The argument that Rule 22 permits harsher reciprocal discipline is simply not supported by the language of the rule, the court said.

Raising the Stakes

The District of Columbia Court of Appeals, which hears many reciprocal discipline cases, has taken a different approach to the issue. It has held that the District of Columbia Bar’s Office of Bar Counsel has standing to object to identical discipline and may recommend a different sanction when it believes an exception applies. But such instances “should be rare,” the court added, and absent proof of an exception, there is a strong presumption toward identical discipline. I, 831 A.2d 964 (2003).

The court laid out a two-step inquiry for determining if different sanctions are warranted: 1) whether the misconduct in question would have resulted in the same punishment if the District of Columbia had been the original disciplinary jurisdiction; and 2) whether the sanction would have been substantially different if the District of Columbia had disciplined the lawyer first.

Applying that test, the court has held that, if the discipline imposed by the foreign jurisdiction is within the range of sanctions that would be imposed for the same misconduct in the District of Columbia, a more severe sanction may be imposed even if the difference is substantial. In re Sheridan, 798 A.2d 516 (2002).

Taking a similar approach, other jurisdictions permit stricter sanctions for misconduct that qualifies as particularly serious under their ethics rules. Florida, for instance, disbarred a lawyer for bribery even though Massachusetts, where the misconduct occurred, only suspended him. Florida Bar v. Karahalis, 780 So.2d 27 (2001). The Florida Supreme Court said bribery is a particularly noxious violation of the state’s ethics rules that “strikes at the very heart of the attorney’s responsibility to the public and profession.”

Kathleen Maher, a lawyer, is with the ABA Center for Professional Responsibility.

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