DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : STEVEN J. DELL, : : D.C. App. 05-BG-1241 Respondent. : Bar Docket No : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This reciprocal discipline case is based on the August 19, 2004, unpublished order of the Supreme Court of Florida (the Florida Court ) admonishing Respondent for minor misconduct. For the reasons set forth below, the Board on Professional Responsibility (the Board ) recommends that the District of Columbia Court of Appeals (the Court ) dismiss this reciprocal discipline matter. I. BACKGROUND Respondent was admitted to the District of Columbia Bar on February 7, He is also a member of the Florida State Bar, having been admitted there on November 19, On November 2, 2005, Bar Counsel filed with the Court a certified copy of the Florida Court s order of admonishment. On November 15, 2005, the Court issued an order directing the Board either to: (i) recommend whether identical, greater, or lesser discipline should be imposed as reciprocal discipline, or (ii) determine whether the Board should proceed de novo. Order, In re Dell, No. 05-BG-1241 (D.C. Nov. 15, 2005). In a statement filed with the Board on December 15, 2005, Bar Counsel recommends the imposition of a Board reprimand as the functionally equivalent reciprocal discipline.

2 Respondent, on January 12, 2006, filed his response to Bar Counsel s statement, with a motion for leave to file out of time. Bar Counsel did not oppose the motion, and it was granted by order of the Board dated January 23, Respondent argues that he should not be disciplined in this jurisdiction because his misconduct in Florida does not constitute misconduct in the District of Columbia and that any further discipline for his minor misconduct in Florida would result in grave injustice. II. THE FLORIDA PROCEEDINGS According to documents provided to us, Respondent was the subject of a complaint regarding a certain advertisement he had placed in the Yellow Pages. The advertisement was submitted to the Florida Bar for review on or about September 19, Supreme Court of Florida, Report of Referee dated June 24, 2004 ( Referee s Report ) at 2. 1 On October 1, 2002, the Florida Bar s Ethic s Counsel advised Respondent that the advertisement did not comply with the Rules Regulating the Florida Bar ( Florida Rules ). Id. According to the Referee: Specifically, the advertisement portrayed two people inspecting a vehicle with the air bag deployed and a shattered windshield which was determined to be deceptive, misleading, or manipulative in violation of R. Regulating Fla. Bar 4-7.2(b)(4). Further, the required disclosure statement was not ¼ the size of the largest type used in the advertisement in violation of R. Regulating Fla. Bar 4-7.3(b). Referee s Report at 2. Respondent had an opportunity to request a formal review of the Ethic s Counsel opinion, but he did not do so. Id. Instead, he removed certain language from the advertisement but otherwise allowed it to be printed in the Yellow Pages. Id. at 3. 1 The Referee s Report was attached to Bar Counsel s Statement as Exhibit C. 2

3 On June 16, 2004, Respondent entered into a Conditional Plea for Consent Judgment for Minor Misconduct ( the Conditional Plea ) in which he agreed to having violated Florida Rules 4-7.2(b)(4) and 4-7.3(b). 2 III. ANALYSIS There is a presumption in favor of imposing identical reciprocal discipline that may be rebutted by the establishment, through clear and convincing evidence, of one or more of the five exceptions set forth in D.C. Bar R. XI, 11(c). D.C. Bar R. XI, 11(f). See In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992). Those 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 an 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. Bar Counsel argues that none of these exceptions apply, but Respondent turns our attention to exceptions three and five, and requests that no discipline be imposed in this 2 According to the Conditional Plea, Respondent plead guilty to each and every allegation as set forth in The Florida Bar s Formal Complaint filed in TFB Case No , 034 (02S) [SC04-793]. Conditional Plea at 3 7. Although the Conditional Plea stated that such Complaint was attached, the Complaint was not attached to any of several copies of the Conditional Plea filed with the Board, nor was it included with any other filing before the Board. Bar Counsel relies on the Referee s Report as the basis for arguments regarding Respondent s violations. See Bar Counsel s Statement at 2-3. In his Response to Bar Counsel s Statement, Respondent states that he was found to have violated Florida Rules 4-7.2(b)(4) and 4.7.3(b). Respondent s Response at 3. Thus, the parties agree as to the Florida Rules at issue, and we see no reason to question their conclusion. We note, however, that because the Florida Court s order was based upon the Conditional Plea which was, in turn, based upon the Complaint, Bar Counsel should have obtained and provided to the Board a copy of that Complaint. 3

4 jurisdiction. Upon our review of the Florida Rules at issue, we are compelled to agree with Respondent. Respondent was found to have violated two Florida Rules, 4-7.2(b)(4) and 4-7.3(b). We deal with the latter first. Florida Rule 4-7.3(b) requires that a certain disclosure statement be included in print advertisements for legal services. 3 Bar Counsel correctly notes that the text of Rule 4-7.3(b) does not contain any statement appearing to regulate the type size of the disclosure. See Bar Counsel s Statement at 3, n.2. Our own research, however, shows that Florida Rule 4-7.2(c)(11), states, as to any disclosure required under the rules on advertising (such as Florida Rule 4-7.3(b)), [i]f the words or statements appear in text, then the text also must be no smaller than one-quarter the size of the largest type otherwise appearing in the advertisement. According to the Referee, Respondent s advertisement violated Florida Rule 4-7.3(b), because the required disclosure statement was not ¼ the size of the largest type used in the advertisement. 3 Specifically, the Rule provides: Fla. R (b). Except as otherwise provided in this subdivision, all advertisements other than lawyer referral service advertisements shall contain the following disclosure: The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. Lawyer referral service advertisements shall contain the following disclosure: The hiring of a lawyer is an important decision. Before you decide to hire the lawyer to whom you are referred, ask that lawyer for written information about that lawyer's qualifications and experience. Outdoor advertisements may contain, in lieu of the above disclosure, the following abbreviated version: Before choosing a lawyer, ask for written information about the lawyer's legal qualifications and experience. These disclosures, however, need not appear in advertisements in the public print media that contain no illustrations and no information other than that listed in subdivision (c)(11) of rule 4-7.2, or written communications sent in compliance with rule

5 As conceded by Bar Counsel, Florida Rule 4-7.3(b) has no counterpart in the D.C. Rules of Professional Conduct. See Bar Counsel s Statement at 7-8. Further, Bar Counsel appears to concede that discipline may not be imposed in this jurisdiction on the basis of the very technical requirement of Florida Rule 4-7.3(b). See id. at 3 n.2 ( Bar Counsel s recommendation is based on Florida s [conclusion] that the advertisement was misleading, and not based on a violation of this rule... ). The District of Columbia has no rule or regulation relating to the size of attorney advertising. Respondent s misconduct, at least insofar as it relates to the size of the typeface used in his advertisement, does not constitute misconduct in the District of Columbia. In light of the above, the exception to the imposition of reciprocal discipline set forth in D.C. Bar R. XI, 11(c)(5) applies, and with regard to Respondent s violation of Florida Rule 4-7.3(b), there is no basis upon which to impose reciprocal discipline. See In re Coale, BDN (BPR April 22, 2004), aff d Order, No. 03-BG-479 (D.C. May 11, 2004) (reciprocal discipline could not be based on attorney s solicitation by mail that violated Indiana Rules where such solicitation did not violate D.C. rules); recommendation adopted in In re Swisher, 827 A.2d 807 (D.C. 2003) (per curiam) (reciprocal discipline cannot be based on attorney s failure to pay an amount he owed on a promissory note, where such misconduct in West Virginia would not constitute misconduct in D.C.); In re Youmans, 588 A.2d 718 (D.C. 1991) (per curiam) (reciprocal discipline cannot be based on depositing client advances on fees in violation of New Jersey Rules, which was not misconduct in D.C.); In re Gregory, 574 A.2d 265 (D.C. 1990) (remanded on other grounds) (reciprocal discipline cannot be based on solicitation in Maryland, where such solicitation is not misconduct in D.C.). We now turn to the other Florida violation on which this reciprocal matter is based. Florida Rule 4-7.2(b)(4) provides: 5

6 RULE COMMUNICATIONS CONCERNING A LAWYER S SERVICES The following shall apply to any communication conveying information about a lawyer s or a law firm s services: * * * (b) Prohibited Statements and Information. * * * (4) Prohibited Visual and Verbal Portrayals. Visual or verbal descriptions, depictions, or portrayals of persons, things, or events shall not be deceptive, misleading, or manipulative. Bar Counsel argues that, in making a finding that Respondent violated this Rule, the Florida disciplinary authorities concluded that Respondent s advertising was misleading. Bar Counsel s Statement at 7. On the contrary, by the plain language of the Florida Rule, the advertisement was found to be either deceptive or misleading or manipulative. The Referee s Report does not clarify which of these three terms described Respondent s advertisement. See Referee s Report at 3 (includes all three terms with the conjunction or between the last two). Neither does the Conditional Plea nor the Florida Court s Order clarify the issue. In this jurisdiction, attorney advertising is governed by our D.C. Rules of Professional Conduct, Rule 7.1, Communications Concerning Lawyers Services, which provides: (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false or misleading if it: (1) Contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading; or (2) Contains an assertion about the lawyer or the lawyer s services that cannot be substantiated. D.C. Rules of Professional Conduct, Rule 7.1(a). Had the Florida Supreme Court (or the Referee) expressly found that Respondent s advertising was misleading, it would likely fall within the parameters of our Rule 7.1(a) and, thus, also constitute misconduct in the District of 6

7 Columbia. On the record before us, however, no such finding was made. Rather, it appears more likely that Respondent s advertisement was not misleading, and, thus, would not constitute a violation of our Rule 7.1. We begin our analysis of this issue with the Florida Rules Regulating Attorney Communications. These Rules contain a provision, other than the one of which Respondent was found guilty, that is far more closely related to our Rule 7.1(a). Specifically, Florida Rule 4-7.2(b)(1)(A) provides: (1) Statements about Legal Services. A lawyer shall not make or permit to be made a false, misleading, deceptive, or unfair communication about the lawyer or the lawyer s services. A communication violates this rule if it: (A) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading; Like our Rule 7.1(a), Florida Rule 4-7.2(b)(1)(A) is a general one that prohibits any false or misleading communication. Had the Florida disciplinary authorities concluded that Respondent s advertising was misleading (as Bar Counsel suggests), Respondent s advertisement would have fallen directly within the parameters of Florida Rule 4-7.2(b)(1)(A), and Respondent would have been found to have violated that Rule. Respondent, however, was not found to have violated Rule 4-7.2(b)(1)(A). Instead, Respondent was found to have violated Florida Rule 4-7.2(b)(4), which is more specifically directed to prohibited visual and verbal portrayals. It is aimed at descriptions, depictions and displays of people and things via drawing, photograph, audiotape, videotape, and the like. Comment to Florida Rule 4-7.2(b)(4). The Florida Bar took issue with the photograph in Respondent s advertisement, which the Referee described as portray[ing] two people inspecting a vehicle with the air bag deployed and a shattered windshield.... Referee Report 7

8 at 2. While Florida Rule 4-7.2(b)(4) prohibits misleading portrayals (which might fall within the parameters of our Rule 7.1(a)), it also prohibits portrayals that are merely manipulative. According to the Comment to the Florida Rule, such portrayals may not be false or misleading, but instead create suspense, or contain exaggerations or appeals to the emotions, call for legal services, or create consumer problems through characterization and dialogue ending with the lawyer solving the problem. Florida Rule 4-7.2(b)(4) Notes Comment. As noted in the comment: Id. Illustrations permitted under Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), are informational and not misleading, and are therefore permissible. As an example, a drawing of a fist, to suggest the lawyer s ability to achieve results, would be barred. Examples of permissible illustrations would include a graphic rendering of the scales of justice to indicate that the advertising attorney practices law, a picture of the lawyer, or a map of the office location. While it is certainly possible that the Florida authorities considered the photograph in Respondent s advertisement misleading, it is also possible that the photograph was completely truthful but simply created suspense or appealed to emotions. Indeed, because Respondent was not found to have violated Florida Rule 4-7.2(b)(4), the latter possibility seems to us to be far more likely. Nothing in the Referee s Report suggests that the photographic portrayal of two people examining a damaged vehicle was untrue. Rather, the Florida authorities appear to have considered the photograph (of two people examining a vehicle with a shattered windshield and deployed airbag) to create suspense, appeal to the emotions, and/or show a situation that implied a call for legal services. Further, without factual findings or explicit legal conclusions from the Florida authorities, we are placed in a situation where we must decide the case on the basis of the 8

9 language of the Rule alone. This is not unlike cases in which the Board is charged with determining whether conviction of a particular crime involves moral turpitude. In such cases, the determination of whether a crime involves moral turpitude per se is based solely on an examination of the elements of the statutory offense. See In re Shorter, 570 A.2d 760, 765 (D.C. 1990) (per curiam) (citing In re Colson, 412 A.2d 1160, (D.C. 1979) (en banc)). In examining the statutory elements, the Board must consider whether a conviction is possible on facts not involving moral turpitude. See Shorter, 570 A.2d at 765. That is, the Board must look to the least culpable crime covered by the offense and determine whether that least culpable crime necessarily involves moral turpitude. Id., 570 A.2d at In this case, the least culpable offense under Florida Rule 4-7.2(b)(4) is a portrayal or depiction that appeals to the emotions. Under Florida Rule 4-7.2(b)(4), the drawing of a fist is impermissible. Other impermissible depictions include a cartoon of a man surrounded by circles and stars (suggesting he is dizzy (presumably from an injury)) and a hand/fist holding crumpled papers (creditor bills or dollar bills it is not clear). See Florida Bar Website (with link to PDF files showing ads that do and do not comply with Florida Rules regarding advertising). While such appeals to the emotions may be prohibited in Florida, they are not prohibited in the District of Columbia. Our Rule prohibits advertisements that are false and misleading. The authors of the D.C. Rule 7.1 made a conscious decision not to place other limits on advertising in this jurisdiction. As noted in the Comments to our Rule: To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.... The interest in expanding public information about legal services ought to prevail over considerations of tradition. * * * 9

10 Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specific facts about a law, or against undignified advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar affect and assumes that the Bar can accurately forecast the kind of information that the public would regard as relevant. D.C. Rules of Professional Conduct, Rule 7.1, cmts. 2, 4. In light of the above, we conclude that Respondent s violation of Florida Rule 4-7.2(b)(4) does not constitute misconduct in the District of Columbia. As a result, the exception to the imposition of reciprocal discipline set forth in D.C. Bar R. XI, 11(c)(5) applies. The Florida finding on Rule 4-7.2(b)(4) does not provide an appropriate basis upon which to impose reciprocal discipline. 4 In light of all of the above, we recommend that this reciprocal matter be dismissed. 4 Bar Counsel maintains that the choice of law provision of Rule 8.5, which is intended to apply in original jurisdiction cases, also applies to reciprocal discipline proceedings, and that the Court can impose reciprocal discipline based on the findings of misconduct in Florida, even if it is not misconduct in this jurisdiction. For the reasons stated by the Board in In re Gansler, Bar Docket No (BPR July 9, 2004), we disagree with Bar Counsel s position and its application of a choice of law analysis to reciprocal discipline cases. The Court did not reach the issue in Gansler, because the respondent s misconduct in Maryland was misconduct in the District of Columbia, and the basis for the imposition of reciprocal discipline here. In re Gansler, 889 A.2d 285, 290 n.5 (D.C. 2005). 10

11 IV. Conclusion Based upon the foregoing, the Board recommends that the Court dismiss this reciprocal discipline proceeding. BOARD ON PROFESSIONAL RESPONSIBILITY All members of the Board concur in this Report and Recommendation.