Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             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.
                                          7




                       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
                                          11


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.
                                         12


      “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.
