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In re Harper11/8/2001
On Report and Recommendation of the Board on Professional Responsibility
Argued October 22, 2001
The Board on Professional Responsibility has recommended that respondent be disbarred as reciprocal discipline for his disbarrment by the Court of Appeals of Maryland. The "most significant and[, indeed, the] controlling factor" in the Board's recommendation is that respondent took no part in the proceeding before the Board, a fact that we have held restricts the Board's consideration of the propriety of imposing reciprocal discipline. See In re Spann, 711 A.2d 1262, 1265 (D.C. 1998). In this court, respondent urges us to excuse his failure to oppose reciprocal disbarrment at the Board level as the result of good faith confusion on his part about the process leading to a Board recommendation of reciprocal discipline. And as evidence of the injustice he believes a conclusion that he substantially defaulted his right to oppose that discipline would cause him, he points to the misgivings the Board itself had as to whether disbarrment in the District would have been commensurate with his misconduct, even as a reciprocal matter, had he seasonably opposed the discipline.
Notwithstanding these arguments, respondent's failure to contest Bar Counsel's recommendation of reciprocal disbarrment to the Board stemmed from his disregard of this court's order explicitly stating the time within which an opposition had to be filed. Nothing in the rules governing reciprocal discipline rendered that notice ambiguous, and our decisions preclude the leniency respondent asks us to adopt for a claimed unintentional but inexcusable bypass of the procedure for opposing reciprocal discipline. Under the standard which the Board correctly followed, "no obvious miscarriage of justice would result in the imposition of identical discipline" for respondent's conduct in Maryland, Spann, 711 A.2d at 1265, and we therefore adopt the Board's recommendation.
I. Background
A.
Respondent was disbarred by Maryland for the unauthorized practice of law and related misconduct. As accurately summarized by the Board, the facts are that in early 1995 respondent agreed to accept cases from two former Maryland attorneys, Fred Kolodner and Burton M. Greenstein, who had practiced law in Baltimore City before being disbarred. Under the terms of the agreement, the wife of Fred Kolodner, a principal in a business enterprise that provided physical therapy and treatment facilities for automobile accident and workers' compensation claimants, began referring the clients and files of the business to respondent. Since respondent was not licensed to practice law in Maryland, in early 1995 he engaged Versteal Kemp, an attorney who was a member of the Maryland bar, to help with the referred cases. Together they opened the office of Harper & Kemp in Baltimore City. Before the start of their business relationship and throughout its existence, respondent also practiced from an office on Georgia Avenue in the District of Columbia, where he primarily handled personal injury cases. Kemp was primarily a criminal law practitioner.
In May 1995, respondent signed a one-year lease for an office for Harper & Kemp; the lease was extended on a month-to-month basis until the office was closed sometime in 1997. The firm's stationery reflected the fact that respondent was a "Member of the D.C., and Maryland Federal Bars," while Kemp was a "Member of Maryland State and Federal Bars." Respondent signed retainer agreements between the firm's personal injury clients and Harper & Kemp. For some time after the office first opened, he and Kemp alternated in covering the office. After a while, Kemp sto
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