In Re De Maio

¶1concurring:

¶2I agree with the court’s disposition of this matter and I join Judge Fisher’s opinion. I write separately, however, to make it clear that, in principle, I find nothing unreasonable or unfair in the decision of the Maryland Court of Appeals to disbar De Maio. Indeed, if this were a case of first impression, I would probably vote for disbarment. In my opinion, conduct of the kind reflected in this record, when engaged in by a member of our “noble calling,” In re Shillaire, 549 A.2d 336, 337 (D.C.1988), is not only “bizarre and erratic,” ante at 589, but also dishonorable, disgraceful, and intolerable. It is evident to me, as it was to the Court of Appeals of Maryland, that lawyers who engage in such conduct should not be permitted to practice law.

¶3*590Because we have conditioned De Maio’s reinstatement on proof of fitness, however, I am confident that he will never be permitted to practice law in the District of Columbia in the absence of a very persuasive showing that conduct such as that described in the court’s opinion will not recur. With that safeguard in place, and with Bar Counsel now in apparent agreement with a unanimous recommendation of the Board on Professional Responsibility, I am reasonably comfortable in joining the imposition of a sanction short of disbarment; under the adversarial system, we should not routinely impose more severe discipline than the prosecuting authority has proposed. See In re Cleaver-Bascombe, 892 A.2d 396, 412 n. 14 (D.C.2006), quoted ante note 1, p. 584-85. Moreover, as Judge Fisher has amply demonstrated, ante at 586-87, the precedents in the District of Columbia in this kind of case are more lenient than those in some other jurisdictions,5 in substantial part because, unlike, inter alia, Maryland, we have not adopted Rule 8.2 of the Model Rules of Professional Conduct. Given the “strong presumption in favor of [the] imposition [of the Board’s recommended sanction], In re Hallmark, 831 A.2d 366, 371 (D.C.2003),” the Board’s unanimity, and the lack of an objection by Bar Counsel, I join my colleagues in imposing the discipline proposed by the Board.

¶4Finally, because the court relied in part on Evans II, I believe that a comment on that decision is in order. The court stated in Evans II that

in this jurisdiction the traditional method of dealing with contumacious behavior in the courtroom or in the course of a judicial proceeding is to cite the offender for contempt of court.

¶5533 A.2d at 245. In this case, however, we cannot cite De Maio for criminal contempt, for the conduct in question occurred in Maryland, not in the District.6 In my opinion, notwithstanding the modest sanction imposed in Evans II, an eighteen-month suspension, with reinstatement conditioned on proof of fitness, is most assuredly not too severe for the grave misconduct that resulted in De Maio’s disbarment in Maryland.