In Re Greenspan

RUIZ, Associate Judge,

dissenting:

These cases come to us in an odd posture and are being decided by the majority through the application of principles of statutory interpretation that are primarily designed to defer to another branch of government, with little regard to purpose or overall context, notwithstanding that what is presented for interpretation is a rule fashioned by this court in the highly interrelated context of reciprocal discipline. In my opinion, the reflexive application of “plain meaning” interpretation to our rule unnecessarily yields a result at odds with the system of reciprocal discipline.

At the outset I would note that the posture of the cases is that neither of the sanctioned attorneys takes exception to the imposition of reciprocal discipline based on the proceedings in the original disciplining jurisdictions, Massachusetts and Maryland. Indeed, Mr. Greenspan stipulated that he violated the Massachusetts Rules on Professional Conduct, waived his right to a hearing, and agreed to a public reprimand. Before us, he has in no way challenged the Massachusetts sanction nor argued against the imposition of reciprocal discipline here — -indeed he has not filed an exception to the recommendation of the Board on Professional Responsibility for a more severe non-identical reciprocal sanction of a 30-day suspension. The case is similar with respect to Ms. Silverman, who agreed with Maryland Bar Counsel that her conduct violated the Maryland Rules of Professional Conduct, and jointly filed a petition for public reprimand with the Maryland Attorney Grievance Commission. Before us, she also does not challenge the Maryland procedure nor does she argue against the imposition of the corresponding sanction here. In other words, this is an intramural dispute between Bar Counsel and the Board on Professional Responsibility, albeit only a partial dispute, as they agree that the Massachusetts Board of Bar Overseers should be deemed a “disciplining court;” their disagreement is only over whether the Maryland Attorney Grievance Commission should be deemed so as well. The majority disagrees with both the Board on Professional Responsibility and Bar Counsel in the Massachusetts case and sides with the Board in the Maryland case. For the reasons that follow, I agree with the test in the Greenspan case that the Board and Bar Counsel recommend, and would decide, applying that test, that both the Massachusetts Board of Bar Overseers and the Maryland Attorney Grievance Commission come within the definition of “disciplining court” for the purpose of triggering reciprocal discipline.

The dispute between the Board and Bar Counsel over whether we should defer to the uncontested determinations made and sanctions imposed by the proper disciplinary bodies in Maryland and Massachusetts turns on an interpretation of a rule of this court which defines “disciplining court” as:

[A]ny court of the United States as defined in Tile 28, Section 451 of the United States Code, the highest court of any state, territory, or possession of the United States, or any other agency or tribunal with authority to disbar or suspend an attorney from the practice of law in any state, territory, or possession of the United States.

D.C. Bar R. XI, § 11(a) (emphasis added). Specifically, the issue is whether the Attorney Grievance Commission in Maryland and the Board of Bar Overseers in Massachusetts are encompassed by the second prong of the definition of the term “disci*345plining court,” which includes “the highest court of any state, territory or possession of the United States.” D.C. Bar R. Rule XI, § 11(a). Obviously neither the Massachusetts Board of Bar Overseers nor the Maryland Attorney Grievance Commission is literally the “highest court” of its state, but each acts as its highest court’s alter ego in issuing reprimands, as the former has been expressly designated by the Massachusetts Supreme Judicial Court and the latter by the Maryland Court of Appeals— the highest courts in their respective jurisdictions — to act precisely as they have done in these cases. No one disputes the authority of those judicial bodies to delegate this responsibility and there is no challenge that the delegated responsibility has been exceeded or irresponsibly exercised.25

So what is the source of the resistance? As the majority reasons, it is that neither of these alter egos of the highest courts is the highest court itself, and thus, cannot be considered under our rule to be a “disciplining court.” I disagree with this rigid interpretation of our rule and with the majority’s reasoning to achieve it. Any interpretation of the language of a rule must be contextual, taking into account related provisions and the purpose of the rale. We have more leave than usual to do so in this case because the rule being interpreted is one we have issued under our “broad supervisory power over attorney discipline” and “we should be prepared in disciplinary cases, more readily than in other types of proceedings” to interpret our rale in light of its purpose. In re McBride, 602 A.2d 626, 687 n. 20 (D.C.1992) (en banc). For this reason, the usual canons of statutory and regulatory interpretation relied upon by the majority that restrict courts to “plain meaning” application of statutory language do not apply with equal force because we are not here concerned with separation of powers issues that arise when the judicial branch of government is tasked with implementing enactments of the legislative or executive branches. See Fogleman v. Mercy Hosp., 283 F.3d 561, 569 (3d Cir.2002) (“The preference for plain meaning is based on the constitutional separation of powers.... ”).

Nor do context and drafting history support the majority’s restricted reading; to the contrary, they require a more expansive interpretation. The majority’s indication that the term “disciplining court” is used in a number of other provisions, see ante at 331, does not, without more, elucidate its meaning in a contextual setting, but simply begs the question before us: what is a “disciplining court” for the purposes of reciprocal discipline? What the repeated use of the term “disciplining *346court” in other sections of the rule should alert us to is that there are consequences elsewhere in our rules to a too-limited interpretation. One of them is the loss of prompt disciplinary information to Bar Counsel and the public. In addition to streamlining and harmonizing the process of imposing discipline across jurisdictions, the reciprocal discipline system is an effective way of informing consumers of legal services in this jurisdiction of lapses by attorneys that have occurred and been sanctioned elsewhere. As Bar Counsel points out, however, the restrictive reading of “disciplining court” that the majority adopts will have the unwanted consequence of narrowing the obligation we impose on attorneys admitted to our Bar “to promptly inform Bar Counsel” of “professional disciplinary action by a disciplining court outside the District of Columbia .... ” D.C. Bar R. XI, § 11(b). Under the majority’s interpretation, neither Mr. Greenberg nor Ms. Silverman would have an obligation to inform D.C. Bar Counsel of their public reprimands-yet the majority, perhaps unaware of this casualty, impliedly takes Ms. Silverman to task for not reporting her Maryland sanction to D.C. Bar Counsel. See ante at 330.26

I also disagree with the majority’s conclusion that “under the plain words or ordinary meaning of § 11(a), all disciplining bodies mentioned-federal courts, highest courts, and agencies and tribunals— either have or must themselves have the authority to disbar or suspend an attorney from the practice of law in the jurisdiction before reciprocal discipline can be imposed.” See ante at 340. It argues that under the doctrines of noscitur a sociis and ejusdem generis, the term “disciplining court” includes “only th[o]se categories of courts, tribunals or agencies” that have the “ultimate” power “to suspend and disbar an attorney from the practice of law.” See ante at 340. The majority’s analysis under those principles is incomplete, however, in at least two respects. First, it fails to explain why in a definition composed of three parallel subparts, the first prong of the definition should not similarly “take color” from the third prong’s requirement; and, second, it does not take cognizance that what the third prong requires is the authority to “disbar or suspend an attorney from the practice of law in any state, territory, or possession of the United States.” D.C. Bar R. XI, § 11(a) (emphasis added). Thus, the “ultimate” power the majority would require of all “disciplining courts” would disqualify the “courts of the United States as defined in Title 28, section 451 of the United States Code” — which are “disciplining courts” under the first prong of the definition — yet do not have the power “to disbar or suspend attorneys from the practice of law in any state, territory, or possession of the United States,” a power that in virtually all states is possessed only by the highest state court. See, e.g., In re Robertson, 608 A.2d 756, 757 (D.C.1992).

Similarly, the majority’s exposition of the drafting history of the rule is unpersuasive. That the term “disciplining court” was adopted rather than “disciplining authority” is beside the point as the term is defined in the rule and it is that definition that concerns us. Under the rule, a “disciplining court” need not be a court at all as it is clear beyond peradventure that under the third prong of the definition “an agency or other tribunal” is deemed a “disciplining court” for purposes of reciprocal discipline if it has the requi*347site authority to disbar or suspend from the practice of law. D.C. Bar R. XI, § 11(a). What is important about the drafting history is that the proposed rule was amended, and a definition added, for the express purpose of expanding it to include non-judicial bodies as “disciplining courts” in order to take account of the different disciplinary structures in other jurisdictions. See Joint Comments of the Board on Professional Responsibility and the D.C. Bar Board of Governors, ante at 342.

Instead, what should concern us is whether application of reciprocal discipline to include the sanctions imposed in these cases would unfairly catch lawyers who would have relied on our rule to believe they could stipulate to misconduct and consent to public reprimands in Maryland and Massachusetts without any reciprocal discipline in the District of Columbia. The majority does not proffer that as a problem, and I see no reason to believe that an attorney would think that she or he would be immune from the usual reciprocal consequences of attorney discipline depending on details of the adjudicatory structure in the original disciplining jurisdiction that do not implicate fairness concerns. There is one procedural issue that I believe could give this court pause before giving a non-literal interpretation to the term “highest court” in the definition of “disciplining court,” and that is whether there might be arguments against recognizing foreign discipline imposed by bodies like the Maryland Attorney Grievance Commission and the Massachusetts Board of Bar Overseers that could be received from other interested persons through the process of a proposed rule change after notice and a period for comment — an opportunity for broader input that is absent from case adjudication. This is an important consideration, and one that would be dispositive for me, were it not for the fact that we have zealous and opposing advocacy by highly competent parties. The Board, which objects to recognizing the Maryland Grievance Commission’s reprimand as reciprocal discipline under the rule as presently drafted, presents no unanswerable objection to a change to the text of the definition, were we to make it expressly via an amendment to the rule, that would encompass the Maryland reprimand as properly falling within the system of reciprocal discipline.27 Indeed we would be hard pressed as a court to fault the approach taken by Massachusetts and Maryland as we ourselves have seen fit in this jurisdiction to delegate the imposition of reprimands to the Board on Professional Responsibility, see D.C. Bar R. XI, § 3(a)(4), and the issuance of informal admonitions to Bar Counsel. See id. at § 3(a)(5).

What makes sense, consistent with orn-eases giving effect to a nationwide system of reciprocal discipline, is to recognize and give deference when discipline has been imposed pursuant to another jurisdiction’s lawful authority as mandated by the highest court of that jurisdiction. Effective *348reciprocal discipline is an essential tool in the increasingly multi-jurisdictional and national practice of law, and our rules reflect “a conscious effort by the drafters to presume similar reciprocal discipline should be imposed unless the circumstances warrant a different result.” In re Drury, 638 A.2d 60, 63 (D.C.1994). Such recognition is consistent with our often-expressed view that the system of reciprocal discipline “accord[s] deference, for its own sake to the actions of another jurisdiction with respect to the attorneys over whom we share supervisory authority.” In re Zdravkovich, 831 A.2d 964, 969 (D.C.2003). Moreover, should there be concern that the system adopted in a sister jurisdiction or a particular proceeding does not meet standards of fairness we deem fundamental, our rules already provide an escape valve by permitting attorneys to show by clear and convincing evidence that the procedure in another jurisdiction was “so lacking in notice or opportunity to be heard as to constitute a deprivation of due process,” there was an “infirmity of proof,” “imposition of the same discipline by the court would result in grave injustice,” or “misconduct elsewhere does not constitute misconduct in the District of Columbia.” D.C. Bar R. XI, § 11(c)(1), (2), (3). Similarly, in cases of reciprocal discipline the Board is permitted to argue, after notice to the attorney and an opportunity to be heard, for a greater or lesser sanction as an exception to identical discipline. See D.C.Bar. R. XI, § 11(e), (f); In re Drury, 638 A.2d at 62 (permitting imposition of greater discipline in a reciprocal discipline case subject to notice and opportunity to be heard in this jurisdiction). Our reciprocal discipline rules are framed, in other words, to permit exceptions for substantive reasons but only in special circumstances, not to have us engage in second-guessing the considered decisions made by our judicial colleagues in the highest courts of other jurisdictions in fashioning the precise contours of their bar disciplinary structures.

As an example, the Board in this case has recommended reciprocal but not identical sanction — a 30-day suspension — for Mr. Greenspan’s neglect of client matters and failure to cooperate with Massachusetts disciplinary authorities on the ground that the misconduct warrants a greater sanction here. The majority does not reach the merits of this recommendation, but dismisses the reciprocal action against him, with the understanding that Bar Counsel may institute an original proceeding based on the same misconduct to which Mr. Greenspan has stipulated and for which he has already been sanctioned in Massachusetts — and which is likely to result in the same 30-day suspension recommendation that the Board recommends in the reciprocal case. In addition to highlighting the obvious (and in my mind unnecessary) expenditure of resources of requiring an original discipline proceeding to accomplish a conclusion more readily-accomplished in the reciprocal discipline proceeding, the Board’s recommendation of non-identical reciprocal discipline illustrates that deference to the fact of imposition of sanction in another jurisdiction under a system of reciprocal discipline does not leave us without authority to depart from the identical sanction in an appropriate situation. The cases before us raise only the preliminary question of whether the reciprocal disciplinary system is to be invoked at all, with its concomitant shift in burden to those who would depart from the imposition of identical reciprocal discipline.

I dissent because I believe that under the majority’s reasoning, important benefits of reciprocal discipline as well as common sense and efficient use of already stretched bar discipline resources (includ*349ing this court’s) are needlessly being sacrificed on the altar of “plain meaning.” Because it would further the purpose of reciprocal discipline and for reasons of practicality and comity, I would recognize, as this court is authorized to do, that the public reprimands that were lawfully issued and consented to in Maryland and Massachusetts trigger application of the reciprocal discipline system in the District of Columbia.

. In this court, no one argues that the first or third prongs of the definition of "disciplining court” is applicable here to the Maryland Attorney Grievance Commission or the Massachusetts Board of Bar Overseers. Some Board members dissenting in the Greenspan case have argued that if alter egos such as the ones before us (with limited power of sanction) are considered to be equivalent to the "highest court” under the second prong, a similar body in another state could also come under the third prong of the definition if, in addition, it had greater "authority to disbar or suspend an attorney from the practice of law in any state, territory or possession of the United States.” D.C. Bar R. XI, § 11(a). I submit the argument does not hold water. The possibility that a particular body might be covered under two prongs of the definition does not necessarily make either one superfluous as evidenced by this case where neither the Massachusetts Board of Bar Overseers nor the Maryland Grievance Commission has authority to "disbar or suspend” (as required by the third prong of the definition), but both exercise the authority to issue reprimands directly under the aegis of the highest court. Further, the third prong refers to “any other agency or tribunal” suggesting an intent to be inclusive rather than restrictive.

. According to Bar Counsel, Mr. Greenspan also failed to report his Massachusetts reprimand.

. The Board raises the problem that, in cases where the attorney does not agree to a reprimand, the Maryland Attorney Grievance Commission acts first as an adjudicator and then also as prosecutor before the Maryland Court of Appeals because it oversees the activities of Maryland Bar Counsel. Rather than assume in the abstract that the Maryland Court of Appeals has designed a procedurally-flawed discipline system, however, if the Attorney Grievance Commission’s dual role were in fact to implicate fairness concerns in a particular case, we can address them under our rules if the resulting proceeding is “so lacking notice or an opportunity to be heard as to constitute a deprivation of due process” or if imposition of reciprocal discipline would constitute "a grave injustice.” D.C. Bar R. XI, § 1(c)(1), (3).