In re Sherryl V.R.S. Goffer a/k/a Sherryl Snodgrass Caffey , 2015 D.C. App. LEXIS 362 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-BG-5
IN RE SHERRYL V.R.S. GOFFER A/K/A SHERRYL SNODGRASS CAFFEY, RESPONDENT. 1
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 405100)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-399-13)
(Argued April 9, 2015 Decided August 6, 2015)
Melanie J. Canter, Assistant Executive Attorney, with whom Elizabeth J.
Branda, Executive Attorney, and James T. Phalen, Deputy Executive Attorney,
were on the brief, for the Board on Professional Responsibility.
William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr.,
Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar Counsel, and Jelani Lowery,
Senior Staff Attorney, were on the brief, for the Office of Bar Counsel.
Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
1
Respondent was registered in the District of Columbia Bar under the last
name “Goffer.” However, in the disciplinary proceedings in Alabama and the
reciprocal proceedings in the District of Columbia that are the subject of this
appeal, she is referred to as “Caffey.” We therefore note both names in the caption
and refer to respondent in this opinion by the name “Caffey” used in the directly
relevant proceedings.
2
FISHER, Associate Judge: When neither the respondent nor Bar Counsel
opposes identical reciprocal discipline, “the imposition of identical discipline
should be close to automatic, with minimum review by both the Board and this
court.” In re Childress, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Cole, 809
A.2d 1226, 1227 n.3 (D.C. 2002). At most, the reviewing body should examine
“the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of
justice would result [from] the imposition of identical discipline—a situation that
we anticipate would rarely, if ever, present itself.” In re Spann, 711 A.2d 1262,
1265 (D.C. 1998).
Although we have often repeated these words, 2 we have yet to provide much
guidance for assessing whether an obvious miscarriage of justice will result. We
do so here and conclude that this is not one of those very rare cases where an
obvious miscarriage of justice will result from imposing identical reciprocal
discipline.
2
See, e.g., In re Reed, 950 A.2d 35, 40 (D.C. 2008); In re Stuart, 942 A.2d
1118, 1120 (D.C. 2008); In re Mininsohn, 896 A.2d 191, 192 (D.C. 2006); In re
DeWitt, 884 A.2d 641, 642 (D.C. 2005).
3
I. Background
On November 18, 2008, the Disciplinary Board of the Alabama State Bar
(the “DBASB”) held a hearing on a complaint filed against Ms. Sherryl Caffey.
Caffey did not attend the hearing or otherwise participate in the disciplinary
proceedings.3 Based on the live testimony and a review of trial transcripts, the
DBASB determined that Caffey had engaged in serious misconduct in her
representation of a defendant in a criminal case culminating in being found in
contempt by the trial court and prompting a mistrial.
Specifically, the DBASB determined that Caffey had violated several of the
Alabama Rules of Professional Conduct; 4 thus, the DBASB issued a judgment
disbarring her. The Supreme Court of Alabama issued an order of disbarment on
3
On the morning of the hearing, Caffey left a voicemail with the Alabama
State Bar. She claimed to have “typical flu symptoms” and asked to continue the
hearing. Representatives of the state bar placed return calls to Caffey’s home and
workplace but were unable to reach her. Caffey made no further attempts to
contact the DBASB or state bar regarding the status of her request.
4
In particular, Caffey violated Rule 3.1 (a) (claims or contentions lacking
merit); Rule 3.2 (delaying litigation); Rule 3.5 (c) (conduct intended to disrupt a
tribunal); Rule 8.2 (false statement concerning integrity of judicial officers);
Rule 8.4 (a) (misconduct); Rule 8.4 (d) (conduct prejudicial to the administration
of justice); and Rule 8.4 (g) (conduct adversely reflecting on attorney’s fitness to
practice law).
4
5
August 21, 2009. Caffey did not report her disbarment to our Board on
Professional Responsibility (the “Board”), as required by D.C. Bar R. XI, § 11 (b).
However, in October 2013, she contacted the D.C. Bar in an apparent attempt to
reinstate her license, which has been administratively suspended for nonpayment
of dues since November 1987. Caffey claimed that she had not been disbarred in
Alabama and that “nefarious actors had inserted a fraudulent document into the
Alabama Court’s records.”
On January 3, 2014, Bar Counsel filed with this court a certified copy of the
Alabama court order disbarring Caffey. See D.C. Bar R. XI, § 11 (b). We then
temporarily suspended Caffey from the practice of law in the District and ordered
her to show cause why she should not be disbarred. Caffey did not reply, and Bar
Counsel recommended that we impose the identical reciprocal discipline of
disbarment.
Under our current rules, reciprocal discipline cases are not normally
considered by the Board. Nevertheless, “[u]pon receipt of the attorney’s response
5
After her disbarment, Caffey filed federal civil actions against nearly all of
the parties involved in her Alabama disciplinary proceedings and the underlying
trial. See Caffey v. Ala. Supreme Court, 469 F. App’x 748, 750 (11th Cir. 2012).
The actions were dismissed, and the dismissals have been affirmed on appeal. Id.
at 750-52.
5
to the show cause order, if any, and of any submission by Bar Counsel, the Court
may refer the matter to the Board for its consideration and recommendation.”
D.C. Bar R. XI, § 11 (e). Notwithstanding that Caffey did not respond to the
show-cause order, we took that course in this case, seeking the Board’s views.
Despite notice, and an opportunity to do so, Caffey did not participate in the
proceedings before the Board.
Applying D.C. Bar R. XI, § 11 (c)(4), the Board found that disbarment is
substantially different from the sanction that would have been imposed had
Caffey’s misconduct occurred in the District. It therefore recommends that we
impose a ninety-day suspension but require Caffey to demonstrate her fitness to
practice law before she may be reinstated. Bar Counsel takes exception to that
recommendation, arguing that the Board failed to accord appropriate deference to
Alabama’s decision and unnecessarily complicated its review in an uncontested
case “by applying the typical exceptions to reciprocal discipline” available to
attorneys who contest identical discipline. Although we appreciate the Board’s
assistance, we agree that it erred by analyzing this case as if it were a contested
proceeding.
6
In considering this matter, we have been assisted by briefs and oral argument
presented by Bar Counsel and the Board. Although we granted Ms. Caffey’s
belated request for an extension of time to file a brief, she ultimately did not file
one.
II. Analysis
“[T]he disciplinary system need not make extraordinary efforts . . . for an
attorney who cares so little about his license to practice law in this jurisdiction that
he makes no objection to the possibility that he might be reciprocally disbarred
here.” In re Drager, 846 A.2d 992, 994 (D.C. 2004). Therefore, in uncontested
proceedings, we impose identical reciprocal discipline almost automatically, with
minimum review to ensure that no obvious miscarriage of justice results.
Childress, 811 A.2d at 807; Spann, 711 A.2d at 1265.
The Board acknowledged this standard, but failed to properly apply it. In a
comprehensive analysis of our case law, the Board surveyed the range of sanctions
that have been imposed for similar misconduct occurring in the District and
determined that disbarment is substantially different. It, in essence, conducted the
typical Rule 11, section 11 (c) review required in contested reciprocal proceedings,
7
see In re Jacoby, 945 A.2d 1193, 1199-1200 (D.C. 2008), undermining at least one
of the policies underlying our standard of heightened deference—to conserve
scarce resources for cases where the parties present an actual controversy.
An obvious miscarriage of justice is “easily discovered, seen, or
understood,” see Webster’s New Collegiate Dictionary 787 (1979) (defining
obvious). To determine whether such a result will occur as a consequence of
reciprocal discipline, a reviewing body need not (and by definition should not)
conduct an in-depth inquiry. It should be easy to see that imposing the identical
sanction will cause a grossly unfair outcome; if it is not, the robust presumption in
favor of identical reciprocal discipline that applies in uncontested cases has not
been overcome.
On the other hand, the imposition of identical discipline is not entirely
automatic even when the attorney has not objected. See D.C. Bar R. XI, § 11 (e)
(providing that the court may impose non-identical discipline if (1) the attorney
demonstrates by clear and convincing evidence, or (2) the court finds “on the face
of the record, that one or more of the grounds set forth in subsection (c) of this
section exists”) (emphasis added). We have applied this limited review with a
particular focus on considerations which can be assessed from the face of the
8
record: notice and an opportunity to be heard in the foreign proceeding and
whether our rules proscribe the sanctioned conduct. 6 See, e.g., In re Gruber, 889
A.2d 991, 992-93 (D.C. 2005) (reciprocal disbarment imposed in uncontested
proceeding where respondent received notice and was given an opportunity to be
heard in the foreign proceeding; his misappropriation and dishonesty violated
District rules; and, “given that Bar Counsel recommends disbarment and
respondent has not opposed it, disbarment [was] not so excessive as to be grossly
unjust”); In re Berger (Awuah), 737 A.2d 1033, 1038, 1043-45 (D.C. 1999)
(reciprocal sixty-day suspension and fitness requirement imposed in uncontested
proceeding where respondent participated in foreign proceeding and his sanctioned
behavior (commingling of client funds) constituted misconduct in the District;
court rejected Board’s determination that it would be a “grave injustice” to impose
6
Citing In re Feigenbaum, Bar Counsel contends that this “[c]ourt has
imposed identical discipline even where . . . the misconduct [in the foreign
jurisdiction] would not even result in discipline in this jurisdiction.” 951 A.2d 754(D.C. 2008). We do not read Feigenbaum so broadly.
In Feigenbaum, we imposed identical reciprocal discipline where a
respondent violated a court order “to file an affidavit stating he notified his clients
and opposing counsel of his suspension.” 951 A.2d at 756. The particular act of
failing to file an affidavit attesting that respondent had notified his clients and
opposing counsel of his suspension—required under D.C. Bar R. XI, § 14 (g)—
was not by itself misconduct in the District. However, where respondent was
ordered to file the equivalent of a § 14 (g) affidavit in the foreign jurisdiction and
failed to do so, his failure to comply with a court order was grounds for discipline
in this jurisdiction. See D.C. Bar R. XI, §§ 2 (b)(3), 14 (g).
9
a fitness requirement “where, even after the Board’s recommendation [of a
downward departure] and Bar Counsel’s exception, respondent Awuah has not
complained to this court that identical discipline should not be imposed”). We
have reiterated “that the ‘obvious miscarriage of justice’ which is required for a
departure from the presumed identical discipline is ‘a situation that we anticipate
would rarely, if ever, present itself’” in an uncontested proceeding. 737 A.2d at
1045 (quoting Spann, 711 A.2d at 1265).
The facts of this case readily demonstrate that this is not the “rare” case
where such an obvious miscarriage of justice will result. Caffey received notice
and was given an opportunity to be heard in the Alabama disciplinary proceeding.
The Board does not dispute that if it had occurred in the District of Columbia,
Caffey’s behavior would have violated our Rules of Professional Conduct,
including Rule 1.1 (b) (duty to serve a client with skill and care); Rule 3.5
(impartiality and decorum of the tribunal); and Rule 8.4 (d) (serious interference
with the administration of justice). Caffey’s misconduct has been deemed
contemptuous and prejudicial to her client by forcing a mistrial. She was found to
have acted dishonestly and with selfish motive.
10
The Board characterizes Caffey’s conduct as “condemnable” but contends
that this case “simply does not involve the egregious facts that result in disbarment
in this jurisdiction.” Arguing that the District’s rules reflect a policy of greater
tolerance than those of Alabama for at least some of Caffey’s conduct, 7 the Board
concludes that her behavior warrants a less severe sanction. We recognize that our
jurisdiction’s policies may differ from those of our sister states. But, particularly
in an uncontested case that involves conduct violative of other disciplinary rules
that have been adopted here, it is not our role to parse nuances in the
implementation of the rules governing attorney conduct. Instead, “the imposition
of identical discipline should be close to automatic, with minimum review by both
the Board and this court.” Childress, 811 A.2d at 807.
It might well be that, if we were reviewing an original proceeding in this
jurisdiction, or, indeed, if we were considering reciprocal discipline in a contested
matter, we could be persuaded not to disbar Caffey for her conduct in connection
with the Alabama trial. But that sort of detailed comparison is not the task before
us. We conduct, instead, a limited review, keeping firmly in mind that Caffey
7
The DBASB found that Caffey violated Rule 8.2 (false statement
concerning integrity of judicial officers), a model rule which Alabama has adopted.
Because of concern regarding its potential chilling effect, this jurisdiction has not
adopted that model rule. See In re De Maio, 893 A.2d 583, 587-88 (D.C. 2006).
11
apparently “cares so little about [her] license to practice law in this jurisdiction that
[s]he makes no objection to the possibility that [s]he might be reciprocally
disbarred here.” Drager, 846 A.2d at 994. Caffey’s indifference is not surprising;
she has been administratively suspended in the District of Columbia for
nonpayment of dues since 1987.
We do not act unfairly by assigning such significant weight to Caffey’s
failure to oppose identical reciprocal discipline. There is no doubt that she had
notice of the instant proceedings. 8 She requested, and was granted, additional time
to file a brief with the court. 9 We recognize that, in some circumstances, physical
or other forms of incapacitation may prevent an attorney who has received notice
from participating in disciplinary proceedings. But Caffey has never claimed that
she was hampered by incapacity. The nature of her misconduct and some of her
actions since then do raise concerns, but there is nothing in the record before us
8
During the course of these proceedings, Caffey has communicated with
the Board’s Office of the Executive Attorney, with the Office of Bar Counsel, and
with this court.
9
At oral argument, Bar Counsel represented that it informed Caffey of her
right to counsel and suggested the possibility of the Board appointing counsel.
12
that establishes any sort of disability or diminished capacity 10 adequate to rebut the
strict presumption that applies in uncontested cases in favor of identical reciprocal
discipline.
III. Conclusion
Accordingly, we order that respondent Sherryl V.R.S. Goffer (also known as
Sherryl Snodgrass Caffey) be disbarred from the practice of law in the District of
Columbia, effective immediately, and that her name be stricken from the roll of
attorneys authorized to practice before this court. For the purposes of
reinstatement, the period of disbarment shall not be deemed to commence until
Caffey files an affidavit that conforms to the requirements of D.C. Bar R. XI,
§ 14 (g).
So ordered.
10
To determine the appropriate disciplinary sanction in the Alabama
proceedings, the DBASB considered whether mitigating circumstances were
present and found that Caffey had no “personal or emotional problems” and no
“physical or mental disability or impairment.” The record before us does not
explain the basis for these findings, but it also does not provide us with a basis to
find that such mitigating circumstances applied.