In re Ann M. Olivarius , 2014 D.C. App. LEXIS 161 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-BG-1494
IN RE ANN M. OLIVARIUS, RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 429231)
(BDN-146-12)
(Argued March 4, 2014 Decided May 15, 2014)
Arthur D. Burger for respondent.
William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr.,
Bar Counsel, was on the brief, for the Office of Bar Counsel.
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and FERREN,
Senior Judge.
FISHER, Associate Judge: Respondent Ann M. Olivarius practices from her
office in London, England, where she is a licensed solicitor. She has also been
admitted to the bars of Minnesota, New Hampshire, New York, Virginia, and the
District of Columbia. Following the revocation of respondent‟s admission to the
bar of New York, the District of Columbia Office of Bar Counsel recommended
that we impose reciprocal discipline in the form of an indefinite suspension with a
fitness requirement. We conclude that reciprocal discipline is authorized by our
2
rules, and that a roughly equivalent sanction is an eighteen month suspension with
reinstatement conditioned upon respondent‟s completion of our mandatory course
for new admittees.
I. Factual Background
On April 5, 2012, the Supreme Court of the State of New York, Appellate
Division, Third Judicial Department, found respondent guilty of professional
misconduct; revoked her admission to the bar; and ordered that, “effective
immediately, her name is stricken from the roll of attorneys and . . . respondent is
commanded to desist and refrain from the practice of law in any form[.]” In re
Olivarius, 941 N.Y.S.2d 763, 765 (N.Y. App. Div. 2012). The court also ordered
that respondent “comply with the provisions . . . regulating the conduct of
suspended or disbarred attorneys.” Id. (citation omitted).
On October 31, 2012, after receiving a certified copy of this disciplinary
order, we suspended respondent from the practice of law in the District of
Columbia “pending final disposition of this proceeding.” 1 See D.C. Bar R. XI,
1
On November 15, 2012, respondent filed an affidavit that Bar Counsel
agrees complies with D.C. Bar R. XI, § 14 (g).
3
§ 11 (d). Notice of this interim suspension was published in the official journal of
the District of Columbia Bar. Interim Suspensions Issued by the District of
Columbia Court of Appeals, Washington Lawyer, Jan. 2013, at 9 (“Olivarius was
suspended on an interim basis based upon the revocation of her previously granted
admission to the practice of law in New York.”).
The disciplinary action in New York stemmed from allegations that
respondent had “made materially false statements and . . . failed to disclose
material facts requested in connection with her application for admission to the
New York State bar.” Olivarius, 941 N.Y.S.2d at 764. The court found that
respondent had violated four rules of the New York Code of Professional
Responsibility (in effect at the time of her conduct), id., which correspond to
rules 8.1 (a), 8.4 (c), 8.4 (d), and 8.4 (f) of the District of Columbia Rules of
Professional Conduct. Because respondent‟s misconduct pertained to her 2008 bar
application, the New York court revoked her admission, “but without prejudice to
respondent‟s renewal of her application for admission[.]” 2 Olivarius, 941
N.Y.S.2d at 765. Respondent promptly reapplied to the bar of the State of New
2
“In mitigation,” the court “acknowledge[d] the Referee‟s conclusion that
respondent‟s failure was more due to carelessness than an intent to deceive and
defraud this Court and its Committee on Character and Fitness[.]” Olivarius, 941
N.Y.S.2d at 765. The court also acknowledged “the positive character testimony
on respondent‟s behalf.” Id.4
York and was readmitted on May 9, 2013. In re Olivarius, 965 N.Y.S.2d 896(N.Y. App. Div. 2013).
II. Reciprocal Discipline
In the District of Columbia, “[r]eciprocal discipline may be imposed
whenever an attorney has been disbarred, suspended, or placed on probation by
another disciplining court.” D.C. Bar R. XI, § 11 (c). However, “[f]or sanctions
by another disciplining court that do not include suspension or probation, the Court
[simply] order[s] publication of the fact of that discipline by appropriate means in
this jurisdiction.” Id.
Respondent argues that she was not “disbarred, suspended, or placed on
probation” in New York and therefore the only sanction available under Rule XI,
§ 11 (c) is publication, which has already occurred. Bar Counsel counters that the
New York court‟s action striking Ms. Olivarius from its roll of attorneys amounted
to an indefinite suspension.
Of course, the New York court did not say that it was disbarring or
suspending Ms. Olivarius or placing her on probation. New York courts are
5
permitted to “censure, suspend from practice or remove” attorneys admitted to
practice and are “authorized to revoke such admission for any misrepresentation or
suppression of any information in connection with the application for admission to
practice.” N.Y. Judiciary Law § 90 (2) (McKinney 2014) (emphasis added).
Revocation is a sanction commonly employed in New York when a respondent‟s
misconduct relates to her bar application, but it does not preclude a court from
selecting another form of discipline. In re Grossman, 853 N.Y.S.2d 333 (N.Y.
App. Div. 2008). For example, one respondent was disbarred for misconduct
related to his bar application because the court “decline[d] to revoke his admission
and place him in the position that he was in at the time of his original application
for admission.” In re Osredkar, 805 N.Y.S.2d 760, 762 (N.Y. App. Div. 2005). In
another New York case, a respondent‟s request for a censure or a short suspension
was denied because the court held that “[t]he sanction for making materially false
statements on an application for admission to the bar is revocation of an attorney‟s
admission.” In re Canino, 781 N.Y.S.2d 686, 688 (N.Y. App. Div. 2004).
Appellant suggests that cases such as these demonstrate that the New York court
made a conscious decision not to suspend or disbar her.
Notwithstanding New York‟s practice of revoking admission in these
circumstances (without characterizing its sanction as a suspension or disbarment),
6
the proper inquiry for us is whether the New York sanction is the functional
equivalent of suspension for purposes of applying our Rule XI, § 11 (c), which
establishes standards for reciprocal discipline. There is no escaping the conclusion
that, as a functional matter, respondent was suspended in New York. Prior to the
revocation, respondent could practice law in New York. Afterwards, she was
forbidden to do so. We have previously held that similar sanctions are analogous
to indefinite suspension, and we find no reason to depart from that precedent here.
See In re Demos, 875 A.2d 636, 642 (D.C. 2005) (“[b]eing stricken from the rolls
of attorneys in the Arizona federal court is the functional equivalent of an
indefinite suspension”); In re Brickle, 521 A.2d 271, 273 (D.C. 1987) (“Revoking
respondent‟s license to practice law is analogous to suspending respondent for an
indefinite period and requiring him to demonstrate fitness before being
reinstated.”).3 Because New York in essence suspended respondent, her case is
appropriate for reciprocal discipline under D.C. Bar R. XI, § 11 (c).
3
In both Demos and Brickle, after determining that the respondents‟
revocations were analogous to suspensions, we analyzed whether their misconduct
warranted substantially different discipline from that imposed by the originating
jurisdiction. See D.C. Bar R. XI, § 11 (c)(4) (allowing for a departure from
identical reciprocal discipline on a showing by “clear and convincing” evidence).
The Brickle court held that the alleged misconduct “would almost certainly result
in disbarment” under District of Columbia law and remanded the case for further
findings. 521 A.2d at 273. Similarly, in Demos, this court held that respondent‟s
conduct could not have resulted in an indefinite suspension in the District of
Columbia and imposed the greater sanction of disbarment. 875 A.2d at 643.
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III. Functionally Equivalent Discipline
When a member of our bar is subject to reciprocal discipline, there is a
presumption that this court “shall impose identical discipline[.]” D.C. Bar R. XI,
§ 11 (e); In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003). This may become
difficult because other jurisdictions sometimes employ sanctions which are not
used here. We might, perhaps, fashion a remedy not expressly authorized by our
rules and revoke respondent‟s admission to the bar of this court. See In re
Kenwood, 934 A.2d 928, 929 (D.C. 2007) (“in certain reciprocal matters, it is
appropriate to „apply the foreign discipline in haec verba‟” (quoting In re
Zdravkovich, 831 A.2d at 970)). More often, this court has “deemed it compatible
with [Rule XI, § 11] to impose essentially the same discipline under a different
label where it would be useful to do so. In a number of cases . . . this court has
imposed . . . the „functionally equivalent‟ reciprocal discipline[.]” In re Laibstain,
841 A.2d 1259, 1262 (D.C. 2004).
Because her suspension in the District of Columbia has already lasted longer
than the thirteen months her admission was revoked in New York, respondent
8
argues that she has been sanctioned sufficiently.4 Bar Counsel contends that the
appropriate reciprocal sanction is an indefinite suspension with the requirement
that she demonstrate her fitness to practice law before she may be reinstated.
Although we agree, as discussed above, that the revocation of appellant‟s
admission in New York amounted to a suspension, the fitness requirement
requested by Bar Counsel is not comparable to what occurred in New York.5
New York required respondent to repeat the bar application process, a
sanction she characterizes as a “do-over,” and an investigation was conducted by a
committee on character and fitness. See N.Y. Comp. Codes R. & Regs. Tit. 22,
§ 805.1. After investigating the circumstances surrounding her original application
for admission to the bar of New York, that committee “conclude[d] that [Ms.
4
Although respondent has already been readmitted to the New York bar,
that fact does not control our analysis here. See In re Gonzalez, 967 A.2d 658, 661
(D.C. 2009) (“we have stated repeatedly that [reinstatement in the original
jurisdiction] does not warrant automatic reinstatement in the District of
Columbia”).
5
We have quoted above, see text at note 3, some language from Brickle
about demonstrating fitness before being reinstated. We understand this sentence
to be this court‟s attempt to describe in functional terms what happened when
attorney Brickle was disciplined in Virginia. It does not establish an absolute
requirement that this court must impose a fitness requirement as part of reciprocal
discipline whenever an attorney‟s license to practice in another jurisdiction has
been revoked.
9
Olivarius] currently possesses the requisite character and general fitness to practice
law in the State of New York and recommend[ed] that the renewed application for
admission be granted.” The Supreme Court of New York adopted that
recommendation and admitted her to the bar. In re Olivarius, 965 N.Y.S.2d 896(N.Y. App. Div. 2013).6
The fitness requirement that Bar Counsel recommends in this case would be
substantially different (and greater) discipline. See In re Cater, 887 A.2d 1, 25
(D.C. 2005) (“while a fitness requirement is not quite as severe an enhancement as
disbarment, it comes close; . . . it can transform a thirty-day suspension into one
that lasts for years”). We will impose a fitness requirement when “there exists a
„serious doubt‟ of a respondent‟s fitness to practice law.” Id. at 24. “[I]f no
serious doubt exists about an attorney‟s fitness, it would be unnecessary and unfair
6
By contrast, an attorney who has been suspended, disbarred, or had her
name struck from the roll of New York attorneys due to a felony conviction must
apply for reinstatement. N.Y. Comp. Codes R. & Regs. Tit. 22, § 806.12(a). The
court may grant reinstatement in such a situation after an applicant demonstrates
“by clear and convincing evidence that [she] has fully complied with the
provisions of [her disbarment or suspension], and . . . possesses the character and
general fitness to resume the practice of law.” N.Y. Comp. Codes R. & Regs. Tit.
22, § 806.12 (b). Respondent was not required to go through this process, which
seems more akin to our requirement of demonstrating fitness.
10
to augment the sanction of a limited period of suspension with such an onerous
obligation.” Id.
We have received and reviewed the report of the New York Committee on
Character and Fitness. In addition, the parties have presented numerous documents
related to the discipline and reinstatement of respondent. This record does not
raise the “serious doubt” required by Cater. Moreover, Bar Counsel has not
undertaken to show by clear and convincing evidence that a greater sanction
(“substantially different discipline”) is required. See In re Sibley, 990 A.2d 483,
487-88 (D.C. 2010) (“The presumption [of identical discipline] applies unless the
party opposing discipline (or urging non-identical discipline) shows, by clear and
convincing evidence, that an exception should be made on the basis of one or more
of the grounds set out in Rule XI, § 11(c)(1)-(5).”).
Although a fitness requirement is not warranted, we may “impose any other
reasonable condition, including a requirement that the attorney take and pass a
professional responsibility examination as a condition of probation or of
reinstatement.” D.C. Bar R. XI, § 3 (b); see also D.C. Bar R. XI, § 16 (f) (“The
Court may impose such other conditions on reinstatement as it deems
appropriate.”). It appears that requiring respondent to take the Multistate
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Professional Responsibility Examination (MPRE) and await the results would
unduly prolong her suspension. We therefore conclude that an appropriate
condition on reinstatement is for respondent to complete the course on the District
of Columbia Rules of Professional Conduct and District of Columbia practice that
all new members of our bar are required to complete. See D.C. Bar R. II, § 3.
Respondent will thus be required to repeat this requirement for admission to our
bar and to refresh her knowledge of her professional obligations in this jurisdiction.
Analogizing the discipline imposed in New York to an indefinite suspension
has provided a useful tool for determining whether respondent is subject to
reciprocal discipline. But an open-ended suspension is not expressly authorized by
our rules. See D.C. Bar R. XI, § 3 (a)(2) (authorizing suspension “for an
appropriate fixed period of time not to exceed three years”). Imposing such a
sanction here will complicate the process of reinstatement and likely will result in
treating respondent much more severely than she was treated in New York. We
conclude that a fair result is to suspend respondent for eighteen months, a period
that will end at roughly the time this opinion is issued. Once respondent has
fulfilled the condition described above, the purposes of reciprocal discipline will
have been served in this case.
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“In the absence of . . . a requirement [“that the attorney furnish proof of
rehabilitation as a condition of reinstatement”], the attorney may resume practice at
the end of the period of suspension.” D.C. Bar Rule XI, § 3 (a)(2). Rule XI, § 16
(c) further provides that “[a]n attorney suspended for a specific period of time on
or after September 1, 1989, without being required to furnish proof of
rehabilitation under section 3(a)(2) of this rule shall be reinstated without further
proceedings upon the expiration of the period specified in the order of suspension,
provided that the attorney has timely filed with the Court the affidavit required by
section 14(g) and such other proof as may be required under section 14(h) [relating
to keeping records of compliance with conditions of suspension].”
It is therefore ORDERED that respondent Ann M. Olivarius be, and hereby
is, suspended from the practice of law in the District of Columbia for a period of
eighteen months, nunc pro tunc to November 15, 2012, the date on which she filed
an affidavit in compliance with D.C. Bar R. XI, § 14 (g). Respondent shall be
reinstated to the bar of this court without further proceedings when she files with
this court proof that she has completed the course for new admittees described in
D.C. Bar R. II, § 3.
It is so ordered.