Monday, February 16, 2009

Resignation Merits Reciprocal Discipline

An interesting issue of reciprocal was addressed recently by the full Massachusetts Supreme Judicial Court. The attorney had first been admitted in Connecticut. While serious bar charges were pending in Connecticut, the attorney returned to South Africa and did not contest the allegations. An order of disbarment was entered. He then sought (and was able) to vacate the disbarment and resign from the Connecticut Bar.

Massachusetts concluded that the "voluntary" resignation was no different from disbarment for reciprocal discipline purposes under the circumstances:

Because the respondent voluntarily elected to resign in Connecticut without pursuing his right to challenge the validity of the disciplinary charges against him, he is not entitled to an opportunity to litigate those Connecticut misconduct charges in the Commonwealth as a condition precedent to our imposing reciprocal discipline. See In re Richardson, 692 A.2d at 434 ("We agree with Bar Counsel ... that Richardson's loss of an evidentiary hearing in Florida was his own choice; by electing to resign, he waived his right to a hearing where he could have contested the charges. We also agree that, as a consequence of Richardson's Florida waiver, we are entitled to rely--for purposes of final, reciprocal discipline--on the disciplinary result in Florida, properly certified to this court, without affording Richardson the evidentiary hearing on the Florida charges he elected to forego earlier"). See also Anusavice v. Board of Registration in Dentistry, 451 Mass. at 795-796 ("Where, as here, charges of serious professional misconduct have been brought before the licensing board of a foreign jurisdiction, and the professional is afforded the full opportunity to challenge the truth of those allegations but has chosen to waive that opportunity, and to resolve the complaints by agreeing to discipline, we see no need for the Massachusetts board to take on the burden of conducting an out-of-State investigation, and attempting to prove those allegations in order to impose reciprocal discipline"). [FN4]

Important policy reasons support the conclusion that the respondent's voluntary resignation in Connecticut unaccompanied by an admission or finding of misconduct warrants the imposition of reciprocal discipline in Massachusetts without the need to litigate the validity of the Connecticut charges. If an attorney like the respondent may permanently resign in another State in the face of serious allegations of misconduct--here involving multiple clients--but do so without admission of misconduct, and then practice in Massachusetts without restriction unless bar counsel undertakes the burdensome and expensive task of investigating and proving the other State's charges, it would "tend [ ] to undermine public confidence in the effectiveness of attorney disciplinary procedures and threaten[ ] harm to the administration of justice and to innocent clients." Matter of Lebbos, 423 Mass. at 755.  See Ramirez v. Board of Registration in Med., 441 Mass. 479, 482-483 (2004), quoting Marek v. Board of Podiatric Med., 16 Cal.App.4th 1089, 1098 (1993) (discussing same policy concerns in relation to physicians who enter voluntary consent agreements without admission to professional misconduct in one jurisdiction and seek to practice in another jurisdiction).

The case is Matter of Ngobani, decided on February 13. This link should take you the court's web page. Note that the court relies on a District of Columbia case (In re Day) that I handled to support its conclusion. (Mike Frisch)

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