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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-BG-455

                     IN RE CHESTER W. NOSAL, RESPONDENT.

                         A Suspended Member of the Bar
                   of the District of Columbia Court of Appeals
                          (Bar Registration No. 167668)
                                    (BDN 57-14)

(Submitted December 4, 2014                                Decided April 2, 2015)

      David U. Fierst was on the brief for respondent.

     Wallace E. Shipp, Jr., Bar Counsel, and William R. Ross, Assistant Bar
Counsel, were on the brief for the Office of Bar Counsel.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FERREN,
Senior Judge.

      PER CURIAM: By order of the Supreme Court of Illinois, respondent Chester

Nosal was suspended from the practice of law for two years and until further order

of the court for numerous acts of professional misconduct.        Upon notice of

respondent’s suspension, this court notified and temporarily suspended respondent

from the practice of law in the District of Columbia, pending proceedings to

determine whether to impose reciprocal discipline, with instructions for respondent
                                         2

to show cause for why we should not do so, pursuant to D.C. Bar R. XI, § 11 (d).

Respondent requests a de novo evidentiary hearing to demonstrate that the Illinois

suspension was not supported by the evidence. Bar Counsel recommends identical

reciprocal discipline of two years suspension with a fitness requirement. Because

“reciprocal discipline proceedings are not a forum to reargue the foreign

discipline,” In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003), we adopt Bar

Counsel’s recommendation.



      Respondent’s violations of the Illinois Rules of Professional Conduct

(“Illinois Rules”) stem from his involvement with Capacitive Deionization

Technology Systems, Inc. (“CDT”), a Texas company.            The Illinois Attorney

Registration and Disciplinary Commission (“Commission”) found that an attorney-

client relationship existed between respondent and CDT from 1999 through 2007,

and that during this time respondent engaged in various acts of self-dealing without

disclosing conflicts of interest or obtaining informed consent, including acting as a

lender for multiple high-interest loans and converting notes given in lieu of

outstanding attorney fees to stock in CDT. Ultimately, respondent’s transactions

gave him an ownership interest in CDT between eleven and fifteen percent.

Additionally, the Commission found that respondent made false statements to the

United States District Court for the Northern District of Texas and to the
                                         3

Commission regarding the time period in which he represented CDT. Finally, the

Commission found that respondent knowingly failed to cooperate with its

investigation and ignored a subpoena requiring respondent to appear before it. In

reaching its decision to suspend respondent, the Commission considered

documentary evidence of respondent’s agreements with CDT, testimony from a

CDT board member and its CEO, and respondent’s filing characterized as a

“Motion to Strike and Dismiss,” in which he contested the facts at issue.



      Respondent declined to participate in the Illinois proceedings, either in

person or through counsel.        Instead, respondent repeatedly contested the

Commission’s jurisdiction through various filings, announcing that he “never

agreed to perpetual subjugation to the jurisdiction of the Illinois Supreme Court

nor the bloated Commission” and “will not be participating in the Commission’s

proceedings” and “will not file a brief,” and the Commission repeatedly informed

respondent that its jurisdiction was proper. As the proceedings commenced in his

absence, respondent threatened to take action against the Commission in federal

court and filed a “Notice to Cease and Desist,” but did not prevent the Commission

from holding a hearing and issuing its final report recommending respondent’s

suspension. Respondent now requests an evidentiary hearing in the District of

Columbia, contending that reciprocal discipline would be unfair because the
                                          4

Commission’s decision was based on a one-sided record, due to respondent’s

absence from the proceedings. Respondent contends that he was absent because he

reasonably believed, in good faith, that the Commission had no jurisdiction over

him, as he had not practiced in Illinois for several decades, had retired from the

Illinois bar,1 and the conduct at issue had no connection with Illinois.



      We have adopted a “rigid standard” in reciprocal discipline cases,

“presumptively impos[ing] identical reciprocal discipline, unless the attorney

demonstrates by clear and convincing evidence that the case falls within one of

five specified exceptions articulated in [D.C. Bar Rule XI, § 11 (c)].” In re

Zdravkovich, supra, 831 A.2d at 968. These five exceptions are:

             (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

      1
          Respondent was on “inactive” status when the investigation began and
subsequently received “retirement status.” The Illinois Supreme Court Rules on
the Admission and Discipline of Attorneys provide multiple registration statuses,
including “inactive status,” Rule 756 (a)(5), and “retirement status,” Rule 756
(a)(6), neither of which serves to “bar, limit, or stay any disciplinary investigations
or proceedings against an attorney,” Rule 756 (i), with the exception of “permanent
retirement status,” Rule 756 (a)(9), for which respondent was not eligible due to
this pending investigation.
                                         5


             (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. Unless there is a
             finding by the Court under (1), (2), or (5) of this
             subsection, a final determination by another disciplining
             court that an attorney has been guilty of professional
             misconduct shall conclusively establish the misconduct
             for the purpose of a reciprocal disciplinary proceeding in
             this Court.

D.C. Bar R. XI, § 11 (c). This standard “comports with constitutional due process

requirements because the attorney either has had an evidentiary hearing or had the

right to one.” In re Zdravkovich, supra, 831 A.2d at 969 (citation omitted).

Accordingly, “reciprocal discipline proceedings are not a forum to reargue the

foreign discipline.” Id.



      Respondent has not met his burden to show that his case falls within any of

these exceptions. With regard to exceptions one and two, respondent received

notice and the opportunity for a full evidentiary hearing in Illinois in which he

opted not to participate. Respondent’s challenges to jurisdiction and subsequent

filings indicate that he chose a tactic of non-participation, but this tactic did not

deprive him of due process. See D.C. Bar R. XI, § 11 (c)(1). Even without
                                          6

repeated notice from the Commission, respondent, as a member of the Illinois bar,

knew or should have known that he remained subject to the Commission’s

jurisdiction.   We note, as well, that the proper forum for an appeal of the

Commission’s jurisdiction is with an Illinois court. In the evidentiary hearing, the

Commission considered, inter alia, the terms of respondent’s agreements with

CDT and the testimony of a board member who would have been the recipient of

any disclosure from respondent in his duty to seek informed consent. There is no

basis for us to conclude that the Commission rendered its decision on inadequate

proof, such that the presumption in favor of identical reciprocal discipline in this

jurisdiction has been rebutted. See D.C. Bar R. XI, § 11 (c)(2). We will not now

hold a de novo evidentiary hearing after respondent deliberately waived his right to

participate in the Illinois hearing. See In re Steele, 914 A.2d 679, 681 (D.C. 2007)

(treating as waived additional arguments against a Florida Bar Counsel proceeding

that respondent declined to attend); see also In re Zdravkovich, supra, 831 A.2d at

969 (“Underlying our strict standard in reciprocal bar discipline cases is not only

the notion that another jurisdiction has already afforded the attorney a full

disciplinary proceeding, but also the idea that there is merit in according deference,

for its own sake, to the actions of other jurisdictions with respect to the attorneys

over whom we share supervisory authority.”).
                                          7

      With regard to the remaining exceptions, respondent argues that imposing

reciprocal discipline would be “unduly harsh,” as the District of Columbia would

not have imposed a two year suspension with reinstatement dependent on an order

of the court. In support, respondent essentially argues that the District of Columbia

Rules of Professional Conduct (“D.C. Rules”) proscribe different conduct than the

Illinois Rules and that, unlike prior cases where this court has imposed such a

suspension, he did not benefit from the transaction at issue. See, e.g., In re

McLain, 671 A.2d 951 (D.C. 1996) (suspending an attorney who did not repay

funds borrowed from a client and who lived rent-free in a client’s home). We do

not agree. Respondent’s violations of the Illinois Rules correlate to violations of

the D.C. Rules.2 Respondent’s attempt to distinguish his conduct by the absence of


      2
        Respondent’s primary challenge in this regard concerns the Commission’s
determination that he violated Illinois Rule 1.8 (a) regarding conflicts of interest.
Respondent contends that the commission found a violation because “CDT had no
independent advice,” which would not be a violation in the District of Columbia,
where the client must simply have “a reasonable opportunity to seek independent
counsel.” Respondent is incorrect. The Illinois and District of Columbia rules
regarding conflicts of interest are virtually the same. Illinois Rule 1.8 (a) provides:

             Unless the client has consented after disclosure, a lawyer
             shall not enter into a business transaction with the client
             if: (1) the lawyer knows or reasonably should know that
             the lawyer and the client have or may have conflicting
             interests therein; or (2) the client expects the lawyer to
             exercise the lawyer’s professional judgment therein for
             the protection of the client.

                                                                        (continued…)
                                          8

any actual benefit to him ignores the evidence in the record on which the

Commission relied: that he charged CDT a high rate of interest and had acquired

an ownership interest in CDT of between eleven and fifteen percent without

disclosure or informed consent. That respondent had not yet received this benefit

was of no consequence; rather, the Commission noted that “the attorney need only

stand to benefit.” Relying on the principles of collateral estoppel, which we have

repeatedly held applicable in reciprocal discipline cases, we accept this ruling. In

re Shearin, 764 A.2d 774, 777 (D.C. 2000) (citation omitted) (“Under principles of

collateral estoppel, in reciprocal discipline cases we generally accept the ruling of

the original jurisdiction.”); accord In re Zdravkovich, supra, 831 A.2d at 969.




(…continued)
Similarly, D.C. Rule of Professional Conduct 1.8 (a) provides:

             A lawyer shall not enter into a business transaction with a
             client or knowingly acquire an ownership, possessory,
             security, or other pecuniary interest adverse to a client
             unless: (1) The transaction and terms on which the
             lawyer acquires the interest are fair and reasonable to the
             client and are fully disclosed and transmitted in writing to
             the client in a manner which can be reasonably
             understood by the client; (2) The client is given a
             reasonable opportunity to seek the advice of independent
             counsel in the transaction; and (3) The client gives
             informed consent in writing thereto.
                                         9

      Further, the Commission treated respondent’s failure to cooperate or

participate as an aggravating factor in its decision because it demonstrated “a

conscious disregard for his professional obligations.” In the District of Columbia,

failure to cooperate with the disciplinary process could, in itself, result in the

imposition of a fitness requirement, which is our functional equivalent to

subjecting reinstatement to further order of the court. See In re Ras, 884 A.2d 44,

46 (D.C. 2005) (equating Illinois’s “reinstatement subject to further order of the

court” to the District of Columbia’s “fitness requirement”); In re Lea, 969 A.2d

881, 891 (D.C. 2009) (citations and internal quotation marks omitted) (noting that

evidence of “deliberate disregard for the disciplinary process” is a factor in

imposing a fitness requirement, and that such disregard may, in itself, “raise[] a

serious question about the attorney’s continuing capacity and willingness to fulfill

his or her professional obligations”).



      Respondent has not rebutted by clear and convincing evidence the

presumption in favor of imposing identical reciprocal discipline. See D.C. Bar R.

XI, § 11 (c); In re Zdravkovich, supra, 831 A.2d at 968. Accordingly, it is



      ORDERED that Chester Nosal is suspended from the practice of law in the

District of Columbia for two years, with reinstatement conditioned upon proof of
                                        10

fitness, pursuant to D.C. Bar R. XI, §§ 16 and 3 (a)(2). We direct respondent’s

attention to the requirements of D.C. Bar R. XI, § 16 (c) and their effect on his

eligibility for reinstatement, and note his timely compliance with the requirements

of § 14 (g).



                                             So ordered.
