In Re Silva

27 A.3d 1109, 2011 WL 3847393
CourtDistrict of Columbia Court of Appeals
DecidedSeptember 1, 2011
Docket08-BG-82, 09-BG-1582
StatusPublished

This text of 27 A.3d 1109 (In Re Silva) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Silva, 27 A.3d 1109, 2011 WL 3847393 (D.C. 2011).

Opinion

27 A.3d 1109 (2011)

In re Theodore S. SILVA, Jr., Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 420236).

Nos. 08-BG-82, 09-BG-1582.

District of Columbia Court of Appeals.

Argued October 13, 2010.
Decided September 1, 2011.

*1110 Theodore S. Silva, Jr., Pro Se.

Julia L. Porter, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before GLICKMAN and FISHER, Associate Judges, and PRYOR, Senior Judge.

GLICKMAN, Associate Judge:

Having found that respondent Theodore S. Silva, Jr., committed serious transgressions of the Rules of Professional Conduct, including criminal acts and intentional dishonesty, the Board on Professional Responsibility recommends that we suspend him from practicing law for a period of three years and require him to demonstrate his fitness as a condition of reinstatement. The Board's report is appended to this opinion. Respondent and Bar Counsel take only limited exceptions to it. Neither party objects in any material respect to the Board's factual findings or its conclusion that respondent violated Disciplinary Rules 8.4(b) and 8.4(c), among others. Bar Counsel, though, disagrees with the recommended sanction and urges us to disbar respondent. However, in the interests of consistency and the deference we owe the Board, we opt to follow its recommendation. Respondent agrees that the sanction recommended by the Board is appropriate in his case; his only substantial question concerns the date when his period of suspension from the practice of law commenced. Per our normal practice, we conclude that the effective date for reinstatement purposes is the date on which respondent fully complied with the notice and affidavit requirements of D.C. Bar Rule XI, § 14.[1]

I.

As described more fully in the Board's report, respondent's primary misconduct *1111 occurred in connection with his representation of a client in a commercial real estate development project. Respondent was tasked with the preparation and negotiation of an easement agreement between his client and adjacent property owners. This agreement needed to be finalized, executed, and filed with the Recorder of Deeds before construction could proceed. Respondent neglected the assignment, but when his law partner and the client inquired about the agreement, respondent falsely told them it was completed. He then forged and falsely notarized the signatures of the other necessary parties to the easement agreement he had drafted, and presented that bogus document to his client and the client's trustee for their signatures. Thereafter, respondent falsely assured his client and his law partner that he had recorded the easement agreement.

Respondent believed he could replace the false agreement he had created with a genuine one signed by all necessary parties, without anyone being the wiser, but he never got around to doing so. Meanwhile, his client, relying on his false representations, proceeded with the closing on the property in December 2005 and entered into a construction contract. The client was obligated to give formal notice to the adjacent landowners of the commencement of construction. In January 2006, respondent prepared and sent that notice to his client, representing—falsely— that he had forwarded it to the neighboring owners as well.

Respondent's lies began to unravel when the client itself sent a copy of the notice to an attorney for one of the adjacent landowners. The attorney informed the client that the necessary easement agreement did not exist. Respondent initially told his client that the attorney was mistaken, but he soon admitted his misconduct. He attributed his errant behavior to his addiction to cocaine and other personal problems. Respondent's law firm incurred considerable expense to resolve the problem respondent had created and avoid material injury to the client. The firm terminated respondent and reported his misconduct to Bar Counsel.

The ensuing disciplinary proceedings are recounted in the Board's report, and we need not detail them here, except to note the following. In his dealings with Bar Counsel and the Hearing Committee, respondent acknowledged his wrongdoing but continued to ascribe it to his struggles with cocaine addiction and other problems. Respondent further represented that he had completed treatment and made progress in overcoming his addiction. As the Board explains, much of what respondent said in this connection was false, including his statement under oath at the hearing that he had stopped using cocaine in May 2006.[2] The Board rejects respondent's effort to blame his misconduct on his cocaine addiction and other personal problems, and it views respondent's dishonesty and misrepresentations during the disciplinary proceedings as a significant aggravating factor in making its sanction recommendation.

II.

In the words of the Board, which echo the findings of the Hearing Committee, "the record in this case demonstrates a pattern of deceit and intentional falsehood and misrepresentation that warrants *1112 a severe sanction."[3] In view of the aggravating factors present in this case, the Hearing Committee thought respondent should be disbarred, but the Board disagrees. Finding that comparable misconduct by other attorneys has resulted in discipline short of disbarment, it recommends a three-year suspension from the practice of law, coupled with a requirement that respondent demonstrate fitness as a condition of reinstatement. Bar Counsel would have us reject that recommendation and adopt that of the Hearing Committee instead.

We think a strong enough case for rejecting the Board's recommendation has not been made. A sanction recommendation from the Board "comes to us with a strong presumption in favor of its imposition."[4] Our Rules provide that we shall adopt the Board's recommended disposition "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted."[5] This Rule

endorses the Board's exercise of broad discretion in handing out discipline that is subject only to a general review for abuse in that discretion's exercise. The rule requires that we enforce a general sense of equality in the sanctions handed out, but it otherwise commands that we should respect the Board's sense of equity in these matters unless that exercise of judgment proves to be unreasonable.[6]

Thus, "[g]enerally speaking, if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed."[7]

Judged in accordance with these settled principles of deferential review, the Board's recommendation of a three-year suspension with a proof-of-fitness requirement is unimpeachable. That disposition is not inconsistent with the discipline we have ordered in comparable cases. We imposed three-year suspensions (with or without fitness), for example, in In re Kline[8] and In re Slaughter,[9] where the respondent attorneys' misconduct also involved dishonesty, forgery, other aggravating circumstances, and similar or identical Rule violations.[10] This is not a case, moreover, *1113 in which it can be said that the Board grossly underestimates the seriousness of the respondent's misconduct.[11]

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Cite This Page — Counsel Stack

Bluebook (online)
27 A.3d 1109, 2011 WL 3847393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-silva-dc-2011.