IN RE MENACHEM E. LIFSHITZ ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-BG-704 2/23/17
IN RE MENACHEM E. LIFSHITZ,
RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 428625)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-214-16)
(Submitted February 1, 2017 Decided February 23, 2017)
Before FISHER and EASTERLY, Associate Judges, and REID, Senior
Judge.
PER CURIAM: In response to this court’s show cause order as to why
he should not be disbarred in this reciprocal discipline matter, respondent
Menachem E. Lifshitz requested that his sanction be less severe, and that at
any rate, the sanction be effective nunc pro tunc to November 20, 2008, the
effective date of his disbarment in the State of New York. Pursuant to D.C.
Bar R. XI, § 11 (d), Disciplinary Counsel recommends disbarment, to run
nunc pro tunc to July 28, 2016, the date of Mr. Lifshitz’s interim suspension
2
in this jurisdiction. For the reasons stated below, Mr. Lifshitz is disbarred,
effective nunc pro tunc to November 20, 2008.
FACTUAL SUMMARY
Mr. Lifshitz pleaded guilty to one count of filing a false personal tax
return in violation of N.Y. Tax Law § 1804 (b) and accordingly notified the
New York Clerk of the Court of his resignation on November 20, 2008. Mr.
Lifshitz was disbarred on October 1, 2009, effective nunc pro tunc to
November 20, 2008, the date of his conviction.1
Mr. Lifshitz was admitted to the District of Columbia Bar on May 24,
1991, but he never practiced in the District of Columbia at any point during
his career. He did not immediately self-report his New York disbarment to
the District of Columbia’s Disciplinary Counsel. However, he stopped
1
The New York State Supreme Court, Appellate Division, First
Department, determined that Mr. Lifshitz “falsely understated his income tax
liabilities by more than $1,500 on his New York State Personal Income Tax
Return for 2005.” At the time of his guilty plea, he agreed to pay $442,827
to the New York State Department of Tax and Finance, and $4,750,000 to
the New York District Attorney, a sum which covered the costs of
investigation and a payment in lieu of fines and forfeitures. In re Lifshitz,
885 N.Y.S.2d 592 (N.Y. App. Div. 2009).
3
paying his dues in 2009, and he was administratively suspended in this
jurisdiction on October 1, 2009. He notified Disciplinary Counsel of his
conviction and New York disbarment in January 2016—when he sought
reinstatement in New York. This court suspended Mr. Lifshitz on July 28,
2016, pursuant to D.C. Bar R. XI, § 11 (d), and ordered him to show cause
as to why reciprocal discipline should not apply in his case—as well as
indicating that he should file an affidavit pursuant to D.C. Bar R. XI, § 14
(g). Mr. Lifshitz filed his 14 (g) affidavit and an affidavit pursuant to In re
Goldberg, 460 A.2d 982 (D.C. 1982), on August 12, 2016.
In September 2016, a hearing panel of the New York Disciplinary
Committee recommended to the New York State Supreme Court, Appellate
Division, that Mr. Lifshitz’s petition for reinstatement be granted. The
hearing panel took into consideration Mr. Lifshitz’s failure to immediately
self-report his New York disbarment to the District’s Disciplinary Counsel.
The panel determined that his “stated reasons for failing to notify [this
jurisdiction] of his conviction and disbarment are credible[,]” and the panel
concluded that his “conduct was clearly unintentional.”
4
ANALYSIS
Reciprocal Discipline
D.C. Bar R. XI, § 11 (c), governing reciprocal discipline establishes a
default rule requiring this court to impose the same discipline as the original
disciplining jurisdiction unless the attorney establishes by clear and
convincing evidence that his or her case falls within one of five stated
exceptions; we interpret these exceptions narrowly. See In re Katz, 150
A.3d 778, 780 (D.C. 2016) (citing In re Chaganti, 144 A.3d 20, 23 (D.C.
2016)). 2 Mr. Lifshitz has invoked only the § 11 (c)(3) exception which
provides that: “The imposition of the same discipline by [this] [c]ourt would
result in grave injustice.”
Mr. Lifshitz argues that reciprocal discipline in his case would be a
“grave injustice” because if he were disbarred, then he would have to wait
until 2021—thirteen years after his initial disbarment in New York—to
2
This court previously has said that D.C. Bar R. XI, § 11 (c)
establishes a “rebuttable presumption,” but see Chaganti, supra, 144 A.3d at
23 n.3 (“it seems more accurate to say that [§ 11 (c)] sets forth a [default]
rule subject to [narrow] exceptions”).
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apply for reinstatement in the District of Columbia. We have previously
held that when, as here, an attorney has never practiced, has no clients, and
no intent to practice in the future in the District of Columbia, assertions of
“grave injustice” regarding the reciprocal discipline doctrine are “largely
meritless.” In re Fuchs, 905 A.2d 160, 164 (D.C. 2006) (“This argument is
largely meritless as respondent argues grave injustice and then stipulates that
he has never practiced in the District of Columbia, has no relationship with
any counsel in the District of Columbia, has no clients or office in the
District of Columbia and has no plans to practice law in the District of
Columbia.”). Accordingly, the grave injustice exception does not apply in
Mr. Lifshitz’s case, and thus, we impose reciprocal discipline.
Disbarment
Mr. Lifshitz argues that his disbarment in the District of Columbia
should run retroactively from the effective date of disbarment in New York,
that is, November 20, 2008. Pursuant to In re Goldberg, supra, it is
generally the norm that reciprocal discipline runs concurrently with the
original disbarment. 460 A.2d at 985. However, it is required that an
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attorney promptly notify Disciplinary Counsel after disbarment and refrain
from practicing law in the District of Columbia. See id.
Mr. Lifshitz did not promptly notify Disciplinary Counsel. However,
he analogizes his case with that of In re Glasco, 726 A.2d 680 (D.C. 1999).
In Glasco, the respondent did not notify the District of Columbia of his
disbarment until he was already reinstated in the foreign jurisdiction. Id. at
681. The respondent had never practiced in the District of Columbia and did
not do so during his suspended time. Id. Although, as here, Disciplinary
Counsel opposed retroactive application in In re Glasco, this court held that
respondent’s discipline would be applied retroactively despite his failure to
promptly notify Disciplinary Counsel. Id. at 681-82. The court reasoned
that, as in this case, the respondent in In re Glasco never practiced in the
District and that he took “extraordinary strides towards rehabilitating his
reputation and career.” Id. at 682. Moreover, the court recognized the
“harsh result that would occur” because “respondent could not petition for
reinstatement until . . . sixteen years after his [original suspension].” Id.
“Whether a particular suspension should be concurrent will depend to
a considerable extent on the actions of the attorney involved.” Id. at 682
 7
(quoting In re Goldberg, supra, 460 A.2d at 985). Similar to the respondent
in In re Glasco, Mr. Lifshitz never practiced in the District of Columbia and
thus his failure to report was not a calculated feat designed to illegally
practice in the District. Indeed, as he indicates, in October 2009 he was
administratively suspended from the practice of law due to his nonpayment
of dues. Moreover, the New York Departmental Disciplinary Committee,
which was aware of this disciplinary matter in the District of Columbia,
concluded that Mr. Lifshitz “has demonstrated that he possesses the requisite
character and general fitness to practice law.” That Committee stressed Mr.
Lifshitz’s moral transformation and newfound goals to set up a pro bono
practice.3
Accordingly, Mr. Lifshitz is disbarred, effective nunc pro tunc to
November 20, 2008.
So ordered.
3
To be reinstated to the District of Columbia Bar, Mr. Lifshitz is
required to file an appropriate petition for reinstatement with the Board. Mr.
Lifshitz may petition for readmission to the bar in this jurisdiction
immediately because it has been more than five years since the effective date
of his disbarment. The criteria and the process for reinstatement in contested
petitions are set forth in D.C. Bar R. XI, § 16 (d).