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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 16-BG-777

                   IN RE LAURENCE F. JOHNSON, RESPONDENT.

                             A Member of the Bar of the
                        District of Columbia Court of Appeals
                            (Bar Registration No. 934398)

                     On Report and Recommendation of the
                      Board on Professional Responsibility
                       (BDN-307-09 and BDN-453-12)

(Argued April 6, 2017                                     Decided May 4, 2017)

      Justin M. Flint for respondent.

      William R. Ross, Assistant Disciplinary Counsel, with whom Wallace E.
Shipp, Jr., Disciplinary Counsel, Jennifer P. Lyman, Senior Assistant Disciplinary
Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for the
Office of Disciplinary Counsel.

      Before BECKWITH and EASTERLY, Associate Judges, and STEADMAN, Senior
Judge.

      STEADMAN, Senior Judge: Respondent, Laurence F. Johnson, was charged

by Disciplinary Counsel with multiple violations of the Maryland Lawyers’ Rules
                                       2

of Professional Conduct (MLRPC).1 Respondent is an experienced immigration

attorney and the violations in question stem from two separate immigration

matters.   On appeal, respondent claims that the Board on Professional

Responsibility (1) misapplied D.C. Bar Rule XI, § 11 (c) in recommending

independent discipline in a matter for which respondent had already been

disciplined by the Attorney Grievance Commission of Maryland (AGCM), and (2)

recommended an unwarranted sanction for his misconduct, which was greater than

that recommended by the Ad Hoc Hearing Committee. We accept the Board’s

recommendation.



                           I. Facts and Proceedings



      The first matter involved respondent’s representation of Carlina Seminiano.

Respondent entered into a retainer agreement with Ms. Seminiano in April 2001

for the purpose of helping her obtain legal permanent residence in the United

States, a process which included labor certification.      Ms. Seminiano paid

respondent approximately $2000 upon signing the retainer agreement. Her delayed


      1
          A lawyer admitted to our bar may be disciplined here for conduct
occurring in another jurisdiction, and in appropriate cases, as here, subject to
discipline here based on the ethics rules of the other jurisdiction. District of
Columbia Rules of Professional Conduct 8.5 (a), (b).
                                         3

labor certification was re-opened in August 2007 and respondent failed to meet a

filing deadline, essential to the labor certification, in November 2007.         On

February 25, 2008, respondent sent a letter to Ms. Seminiano and her employer

indicating that her labor certification application was closed and offered to start a

new application “at a large discount.” Respondent did not return the $2000 to Ms.

Seminiano until June 2012, after an investigation into respondent’s conduct had

begun.



      The second matter involved respondent’s representation of Secundo Jacinto

Jerez Minchala after he was ordered removed from the United States in 2011. Mr.

Minchala retained respondent’s services to appeal from this removal order, which

had a filing deadline of June 2, 2011, and paid respondent a total of $2060 through

various monthly payments between May and October 2011. Respondent never

filed the appeal.   Respondent also deposited the advanced legal fees into his

office’s operating account without informed written consent from Mr. Minchala.



      Respondent wrote Mr. Minchala a letter on June 23, 2011, intending to

terminate his representation. Despite this letter, respondent’s office continued to

bill Mr. Minchala, and respondent did not inform Mr. Minchala that he failed to

file an appeal until February 28, 2012, at which time respondent also refunded Mr.
                                          4

Minchala $2000. Once Mr. Minchala retained new counsel, respondent refused to

provide a letter stating that he failed to file an appeal, believing it would harm his

own interests. Respondent refunded the final $60 in March 2014 after the initial

Specification of Charges was filed in this case.          The AGCM reprimanded

respondent for misconduct related to his representation of Mr. Minchala,

acknowledging that he violated MLRPC Rules 1.1, 1.3, and 8.4 (d).                This

jurisdiction’s charges went beyond the Maryland reprimand and alleged additional

MLRPC violations.



      The Ad Hoc Hearing Committee determined that respondent warranted

Kersey mitigation for the period of misconduct associated with Ms. Seminiano, but

not the misconduct associated with Mr. Minchala.2          The Hearing Committee

concluded that while representing Ms. Seminiano, respondent violated MLRPC

Rules 1.1 (competence) and 1.3 (diligence). While representing Mr. Minchala, the

Committee found that respondent violated Rules 1.1, 1.3, 1.4 (keeping the client

      2
           Respondent asserted that any discipline should be mitigated due to
disability according to In re Kersey, 520 A.2d 321 (D.C. 1987). In 2004,
respondent developed a skin condition that made it difficult to concentrate and led
to fatigue and depression. The Hearing Committee concluded that this condition
contributed to respondent’s misconduct in 2007. Around the time of respondent’s
second offense he exhibited symptoms of depression, but the Hearing Committee
concluded that respondent’s “ability to represent Mr. Minchala was not impaired to
the point that Respondent was unable to comply with the ethical requirements of
practicing law.” (emphasis in original).
                                           5

reasonably informed of the status of the matter), 1.8 (h)(1) (making an agreement

with the client prospectively limiting the lawyer’s liability to the client for

malpractice), 1.15 (a) (holding the client’s funds in a separate account), 1.15 (c)

(failure to deposit fees into a client trust account), 1.16 (d) (properly protecting the

client’s interests on termination of the representation), 8.4 (c) (conduct involving

dishonesty, fraud, deceit, or misrepresentation), and 8.4 (d) (conduct that seriously

interferes with the administration of justice). Ultimately, the Hearing Committee

recommended a suspension of thirty days, with the entire suspension stayed in

favor of a two-year period of probation.



      Respondent filed a general notice of exceptions to the Hearing Committee

Report that indicated he intended to later file detailed exceptions, and Disciplinary

Counsel filed a notice of some specific exceptions. However, subsequently they

jointly withdrew all exceptions to the Report and Recommendation of the Ad Hoc

Hearing Committee and proceeded on review to the Board on Professional

Responsibility without briefing or argument. On review, the Board adopted the

Hearing Committee’s report except its conclusions as to the recommended length

of suspension. Instead, the Board recommended a suspension of ninety days, with

sixty days stayed in favor of one year of probation.
                                         6

                          II. D.C. Bar Rule XI, § 11 (c)



      Respondent first argues that the disciplinary matter related to his actions

representing Mr. Minchala should be dismissed because the AGCM has already

reprimanded respondent for the misconduct. His argument rests on subsection (c)

of D.C. Bar Rule XI, § 11 (Reciprocal Discipline) that reads as follows:


             Reciprocal discipline . . . . shall not be imposed for
             sanctions by a disciplining court such as public censure
             or reprimand that do not include suspension or probation.
             For sanctions by another disciplining court that do not
             include suspension or probation, the Court shall order
             publication of the fact of that discipline by appropriate
             means in this jurisdiction.


Pursuant to this provision, respondent asserts, the only permissible course of action

under our rules relating to the Minchala incident was to publish in the District the

fact of the Maryland reprimand.



      The Hearing Committee heard this argument and rejected it. Respondent

took no exception to this conclusion before the Board but, as already stated, let the

Hearing Committee report be submitted to the Board without briefing or
                                          7

argument.3 “We have consistently held that an attorney who fails to present a point

to the Board waives that point and cannot be heard to raise it for the first time

here.” In re Green, 136 A.3d 699, 700 (D.C. 2016) (quoting In re Holdmann, 834

A.2d 887, 889 (D.C. 2003)). While we re-emphasize that arguments to this court

should ordinarily be presented to the Board to ensure proper appellate review, in

this case the Board explicitly acknowledged the existence of the issue and

concurred with the Hearing Committee’s rejection of the argument.              In this

posture, and to put the question to rest, we have determined to address the tardy

argument.



      We are in no way persuaded by respondent’s argument. Section 11 of D.C.

Bar Rule XI sets forth the procedures to be followed where a sanction is to be

imposed in the District based upon disciplinary action in another jurisdiction. It

does not affect the broad power of Disciplinary Counsel to institute fresh

proceedings against an attorney based on the same conduct. See D.C. Bar R. XI,

§ 6 (a)(2) (“Disciplinary Counsel shall have the power and duty . . . [t]o investigate

all matters involving alleged misconduct by an attorney subject to the disciplinary


      3
         Board on Professional Responsibility Rule 13.5 states that “[i]f no notice
of exceptions is filed within the time allotted, the rights of the parties to brief and
argue before the Board shall be waived, and the Board shall take action based on
the record.”
                                          8

jurisdiction of this Court which may come to the attention of Disciplinary Counsel

or the Board from any source whatsoever, where the apparent facts, if true, may

warrant discipline.”); see also In re Fitzgerald, 982 A.2d 743, 744 (D.C. 2009)

(acknowledging the option of the Board on Professional Responsibility to either

impose reciprocal discipline or proceed de novo); In re Greenspan, 910 A.2d 324,

343 (D.C. 2006) (acknowledging that Disciplinary Counsel may elect to proceed

with an original disciplinary action, despite the greater burden it must bear in doing

so); In re Perrin, 663 A.2d 517, 523 (D.C. 1995) (“[W]e are not prepared to

construe Section 11 (c) as requiring us to permit foreign discipline to trump the

results of an exhaustive original disciplinary proceeding[] here.”). While these

cases preceded the streamlining of the procedures for dealing with reciprocal

discipline introduced by the 2008 amendments of that section, there is no

indication of any intent to narrow the long-recognized power to bring an

independent proceeding.     Thus, Disciplinary Counsel operated well within its

authority in proceeding with original discipline in the matter of Mr. Minchala.
                                        9

                          III. Recommended Sanction



      Respondent also argues that the recommended discipline by the Board was

unwarranted, especially given that the Hearing Committee did not recommend a

period of active suspension.    It is the Board, however, that has the ultimate

responsibility to make its recommendation to this court. “This court reviews the

Board’s legal conclusions de novo.” In re White, 11 A.3d 1226, 1228 (D.C. 2011).

We also “retain[] the ultimate choice of sanction,” In re Scanio, 919 A.2d 1137,

1142 (D.C. 2007) (internal quotation marks omitted), but, by our own rules, we

will accept the Board’s recommendations “unless to do so would foster a tendency

toward inconsistent dispositions for comparable conduct or would otherwise be

unwarranted.” D.C. Bar R. XI, § 9 (h)(1). This standard dictates that “if the

Board’s recommended sanction falls within a wide range of acceptable outcomes,

it will be adopted and imposed.” In re Scanio, 919 A.2d at 1142.



      In deciding the nature and length of disciplinary sanctions, the Hearing

Committee and Board consider numerous factors:


            (1) the seriousness of the conduct at issue; (2) the
            prejudice, if any, to the client which resulted from the
            conduct; (3) whether the conduct involved dishonesty
            and/or misrepresentation; (4) the presence or absence of
            violations of other provisions of the disciplinary rules[;]
                                       10

            (5) whether the attorney had a previous disciplinary
            history; (6) whether or not the attorney acknowledged his
            or her wrongful conduct; and (7) circumstances in
            mitigation of the misconduct.


In re Cole, 967 A.2d 1264, 1267 (D.C. 2009) (quoting In re Thyden, 877 A.2d 129,

144 (D.C. 2005)).



      The Board departed from the Hearing Committee’s recommendation of a

thirty-day suspension, stayed in favor of two years of probation, emphasizing that

respondent’s misconduct involving Mr. Minchala “was serious—involving

dishonesty, commingling and interference with the administration of justice, in

addition to neglect.”4   Moreover, the matter involving Mr. Minchala did not

warrant Kersey mitigation and was respondent’s second offense.          The Board

concluded that “[w]hen examining other cases to determine the appropriate

sanction here, the range of sanctions for comparable misconduct supports the

imposition of a 90-day suspension.”5



      4
        The Board retains the ability to “affirm, modify, or expand the findings
and recommendation of the Hearing Committee.” Board on Professional
Responsibility Rule 13.7.
      5
        The Board also, without explanation, reduced the probationary period
from two years to one. No objection is made to that modification of the Hearing
Committee’s recommendation.
                                          11

      Respondent argues that almost none of the cases cited by the Board are

appropriately similar to the case at hand, except for In re Cole, 967 A.2d 1264

(D.C. 2009). In Cole, the attorney received a thirty-day suspension for violating

Rules 1.1 (a) and (b); 1.3 (a), (b), and (c); 1.4 (a) and (b); and 8.4 (c) and (d)

stemming from one immigration matter. 967 A.2d at 1265 n.3, 1266, 1270. The

attorney failed to file an asylum application and then lied to his client about the

application’s status. Id. at 1265. While the attorney’s actions constituted serious

misconduct, the Board agreed to a thirty-day suspension because “he had no prior

misconduct, displayed a high level of contrition, sought to mitigate the

consequences of his action, and presented two favorable character witnesses.” Id.

at 1266 (internal quotation marks omitted). This case is distinguishable from Cole

on key factors, as Disciplinary Counsel correctly points out. While respondent

presented several favorable character witnesses, respondent’s course of misconduct

stemmed from two separate immigration matters; his acknowledgement of his

misconduct was, as the Hearing Committee noted, “at best, equivocal”; he did not

cooperate with Mr. Minchala’s subsequent counsel out of self-interest; and he

violated additional rules (Rules 1.8 (h)(1), 1.15 (a) and (c), and 1.16 (d)).



      The Board compared this case to others where similar sentences were

imposed, such as In re Perez, 828 A.2d 206 (D.C. 2003). In Perez, this court
                                           12

followed the recommendation of the Board, suspending an attorney for sixty days

for “protracted neglect and intentional conduct that resulted in prejudice and

damage to a vulnerable client,” where the Hearing Committee had initially

recommended a thirty-day suspension. 828 A.2d at 206 & n.1. Sanctions for

violations of somewhat similar groupings of rules in other cases have ranged from

a forty-five-day suspension,6 to a four-month suspension,7 to yet other ranges of

suspensions with partial stays in favor of probation.8




      6
          E.g., In re Fox, 35 A.3d 441, 441-42 (D.C. 2012) (imposing a forty-five
day suspension, on an already-suspended attorney, for violations of Rules 1.1 (a)
and (b), 1.3 (a) and (c), and 1.4 (a) and (b) where the attorney failed to keep a
client informed of her claim, failed to file a lawsuit on her behalf, and misinformed
her of the status of her case).
      7
         E.g., In re Schoeneman, 891 A.2d 279, 280, 283 (D.C. 2006) (imposing a
four-month suspension for violations of Rules 1.1 (a), 1.3 (a) and (b), 1.4 (a), 8.4
(c) and (d), and 1.16 (d), in neglecting three employment discrimination matters in
federal court).
      8
          E.g., In re Askew, 96 A.3d 52, 53-54, 62 (D.C. 2014) (imposing a six-
month suspension with all but sixty days stayed for violations of Rules 1.1 (a) and
(b), 1.3 (a), 1.4 (a) and (b), 1.16 (d), 3.4 (c), and 8.4 (d) where the attorney
“intentional[ly] and virtually complete[ly] neglect[ed] . . . her court-appointed
client”); In re Thai, 987 A.2d 428, 429-31 (D.C. 2009) (imposing a suspension of
sixty days with thirty days stayed in favor of one year of probation for violations of
Rules 1.1 (a) and (b), 1.3 (a) and (c), 1.4 (a), and 1.16 (d) in representing a client in
an immigration matter).
                                         13

      In determining an appropriate sanction, all cases turn on the totality of

circumstances that are presented, and no two cases will be exactly alike. We

conclude that the judgment of the Board as to an appropriate sanction is reasonable

and within the ambit of prior cases.          Accordingly, we adopt the Board’s

recommendation, and it is hereby



      ORDERED that Laurence F. Johnson is suspended from the practice of law

in the District of Columbia for a period of ninety (90) days, with sixty (60) days

stayed in favor of one year of probation subject to the conditions outlined by the

Board on Professional Responsibility.9


      9
          The Board on Professional Responsibility set forth the following
unchallenged conditions on respondent’s probation:

            (1) During the first six months of the probationary
            period, Respondent shall take at least six hours of
            continuing legal education coursework preapproved by
            Disciplinary Counsel that include the proper drafting of
            client retainer agreements, the proper handling of
            retainers and advance payment of fees by clients, and the
            proper operation of attorney escrow accounts containing
            such retainers and fees. Respondent shall provide
            Disciplinary Counsel with proof of attendance at such
            continuing legal education within 30 days after
            attendance at the approved course.

            (2) At the end of each successive 90-day period
            following the start of probation, Respondent shall file an
            affidavit with the Board and Disciplinary Counsel stating
                                                                     (continued…)
                                        14




(…continued)
           that he believes he is fully capable both physically and
           mentally to continue practicing law, which affidavit shall
           be supported by one or more letters from a physician or
           physicians of Respondent’s choice, dated within the 30
           days prior to the date of Respondent’s affidavit, stating
           that s/he has examined Respondent and finds that
           Respondent is fully capable both physically and/or
           mentally to continue practicing law; provided, if either
           Respondent or the examining physician(s) shall believe
           Respondent has any physical or mental condition that
           may affect Respondent’s continuing practice of law, the
           affidavit/supporting letter shall describe such condition in
           reasonable detail.

            (3) Respondent shall execute an authorization form
            waiving any physician-patient or similar privilege to the
            extent necessary to permit the physician(s) to release
            information to the Board and/or Disciplinary Counsel,
            and/or to testify at a hearing regarding Respondent’s
            disability and compliance with the terms of probation and
            fitness to practice law, as provided by Board Rule 18.1.

            (4) Respondent shall not be required to notify clients of
            the probation.

            (5) During the probationary period, the Board shall retain
            jurisdiction to require any additional action or proceeding
            regarding Respondent in light of information the Board
            receives pursuant to condition (2) and/or condition (3)
            specified above.

            (6) Should Respondent violate the terms of his probation
            or commit any additional violation of the MLRPC or the
            District of Columbia Rules of Professional Conduct, he
            will be subject to revocation of his probation.

                                                                     (continued…)
                                         15

                                                    So ordered.




(…continued)
In addition, as the Board recommends pursuant to Board Rule 18.1 (a),
respondent must accept the terms of probation within thirty days of the date
of the court’s order by filing a statement with the Board on a form prepared
by the Board’s Executive Attorney or countersigning the Board order
implementing the probation. If respondent does not file this statement with
the Board, the full period of suspension will take effect without further order
from the court.
