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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-BG-18
IN RE DAVID H. LOOMIS, RESPONDENT.
A Suspended Member of the Bar
Of the District of Columbia Court of Appeals
(Bar Registration No. 394857)
(BDN-468-11)
(Submitted November 26, 2013 Decided January 9, 2014)
David H. Loomis, pro se.
Wallace E. Shipp, Jr., Bar Counsel, and William R. Ross, Assistant Bar
Counsel, filed a statement regarding reciprocal discipline for the Office of Bar
Counsel.
Before EASTERLY, Associate Judge, and PRYOR and BELSON, Senior Judges.
PER CURIAM: Respondent, David H. Loomis, has been a member of the Bar
of the District of Columbia since November 25, 1985. On October 19, 2011, the
Supreme Court of California suspended respondent from practice for two years,
but stayed part of the suspension in favor of three years of probation with
additional requirements. The California court’s discipline was based on
respondent’s stipulation to intentional misappropriation of entrusted client funds.
On February 11, 2013, this court temporarily suspended respondent’s license to
2
practice in the District of Columbia, pending reciprocal discipline proceedings in
the District. Respondent has not responded to numerous efforts to communicate
with him during these proceedings. Consistent with our settled case decisions, we
now impose reciprocal discipline of disbarment for professional misconduct of this
nature.
I.
On November 1, 1999, respondent was administratively suspended from the
practice of law in the District of Columbia for non-payment of dues and his failure
to file required annual registration statements. In October, 2011, respondent was
disciplined by the Supreme Court of California, after entering a stipulation
admitting that he had intentionally misappropriated entrusted client funds.1 The
California court suspended respondent from practice for two years, but stayed the
suspension in favor of three years of probation, with at least one year of active
suspension; reinstatement was conditioned upon restitution, and other stated
conditions. Later, on September 24, 2012, the California State Bar filed additional
disciplinary offenses alleging that respondent had failed to comply with the court’s
1
On September 1, 2004, respondent’s client, Sequoia Financial Services,
(“Sequoia”), terminated representation, with $13,155.56 in respondent’s trust
account belonging to Sequoia. Despite receiving a letter from Sequoia demanding
return of its funds, respondent withdrew the entire amount and has not returned the
funds.
3
initial disciplinary order; a default judgment was entered against respondent for his
failure to appear at the proceeding, and he was placed on inactive status.
Respondent failed to report his California discipline to the District of
Columbia Bar Counsel, as required by D.C. Bar R. XI, § 11(b). On January 14,
2013, the District of Columbia Court of Appeals received a certified copy of the
California disciplinary order from Bar Counsel. On February 11, 2013, this court
suspended respondent pending the conclusion of this reciprocal discipline matter,
and ordered respondent to show cause why he had not informed Bar Counsel of his
California discipline and also failed to comply with the D.C. Bar R. XI, § 14(g)
affidavit requirements. Respondent has done neither, despite being provided with
repeated notices of this proceeding.2 See In re Steinberg, 953 A.2d 306, 308 n.3
(D.C. 2008) (The Board of Professional Responsibility properly concluded that
respondent had been provided sufficient notice of reciprocal discipline proceedings
where respondent had an obligation to update his address and at least one notice
sent to an address he had provided was not returned as undeliverable.) (citing In re
Powell, 860 A.2d 836, 837 (D.C. 2004)).
2
Bar Counsel first determined that respondent’s addresses of record with
the D.C. Bar, last updated in 1998, were no longer accurate. Notice of this
proceeding, therefore, was sent to respondent at his current address of record with
the California Bar, and the notice has not been returned as undeliverable.
4
II.
D.C. Bar Rule XI, § 11 (c) provides in pertinent part:
Reciprocal discipline shall be imposed unless the
attorney demonstrates to the Court, by clear and
convincing evidence, that:
(1) The procedure elsewhere was so lacking in notice or
opportunity to be heard as to constitute a deprivation of
due process; or
(2) There was such infirmity of proof establishing the
misconduct as to give rise to the clear conviction that the
Court could not, consistently with its duty, accept as final
the conclusion on that subject; or
(3) The imposition of the same discipline by the Court
would result in grave injustice; or
(4) The misconduct established warrants substantially
different discipline in the District of Columbia; or
(5) The misconduct elsewhere does not constitute
misconduct in the District of Columbia.
This court, in In re Sibley, explained the principles governing our
review of reciprocal discipline matters:
D.C. Bar R. XI, § 11(c) establishes a rebuttable
presumption in favor of this court’s imposition of
discipline identical to that imposed by the original
disciplining jurisdiction . . . . The presumption applies
unless . . . an exception should be made on the basis of
one or more of the grounds set out in Rule XI, § 11(c)
(1)-(5).
5
In re Sibley, 990 A.2d 483, 487-88 (D.C. 2010).
The exception in D.C. Bar Rule XI, § 11 (c) (4) allows for non-identical reciprocal
discipline when “[t]he misconduct established warrants substantially different
discipline in the District of Columbia.” D.C. Bar Rule XI, § 11 (c) (4). This court,
in In re Salo, recently summarized the two-step inquiry to assess the substantially
different discipline exception:
First, we determine whether the conduct in question
would not have resulted in the same punishment in the
District of Columbia as it did in the disciplining
jurisdiction. In re Fitzgerald, 982 A.2d 743, 748 (D.C.
2009) (citations and quotations omitted). Second, if the
discipline imposed here would be different from that of
the disciplining court, we must decide whether the
difference between the two is substantial. Id.
In re Salo, 48 A.3d 174, 178 (D.C. 2012).
In this jurisdiction, respondent’s misconduct could only have resulted in
disbarment, which is a substantially different sanction from the stayed suspension
imposed by the California court. See, e.g., In re Grossman, 940 A.2d 85, 86-87
(D.C. 2007) (The court imposed substantially different discipline, disbarring
attorney because misconduct in original jurisdiction constituted misappropriation
in D.C.). There is a strong presumption of disbarment in the District of Columbia
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for all cases involving intentional misappropriation. See, e.g., In re Micheel, 610
A.2d 231, 233 (D.C. 1992); In re Cooper, 591 A.2d 1292, 1297 (D.C. 1991). This
court, in In re Addams, explained, that “in virtually all cases of misappropriation,
disbarment will be the only appropriate sanction unless it appears that the
misconduct resulted from nothing more than simple negligence.” In re Addams,
579 A.2d 190, 191 (D.C. 1990) (en banc); see also In re Hines, 482 A.2d 378, 386
(D.C. 1984). A lesser sanction than disbarment is “appropriate only in
extraordinary circumstances.” Addams, 579 A.2d at 19.
Here, the California court suspended respondent because he stipulated that
he had failed to safeguard his client’s funds by making unauthorized withdrawals
against the funds at the conclusion of the representation. Although the California
court did not describe respondent’s conduct as “misappropriation,” respondent’s
actions clearly constitute misappropriation in this jurisdiction. See, e.g., In re
Carlson, 802 A.2d 341, 348 (D.C. 2002) (Misappropriation occurs whenever the
balance in the attorney’s account falls below the amount due to the client.).
Respondent’s stipulation stated that his violation was “willful,” rather than simple
negligence. In light of this court’s clear and consistent jurisprudence regarding
intentional misappropriation of entrusted funds, we now impose the substantially
different discipline of disbarment.
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Accordingly, it is ORDERED that respondent shall be, and hereby is,
disbarred from the practice of law in the District of Columbia. For reinstatement
purposes, respondent’s discipline will run from the date respondent files an
affidavit in compliance with D.C. Bar R. XI, § 14(g).
So ordered.