Frederick Salo, a New York-based attorney suspended for a year by that state bar for misappropriation of funds, successfully argued for a lower suspension in the District of Columbia, where he's also a member of the bar, as opposed to reciprocal discipline.
In an opinion (PDF) issued yesterday by the District of Columbia Court of Appeals, the three-judge panel suspended Salo from practicing in D.C. for six months. The suspension was effective Dec. 30, 2011, meaning Salo has already served out the penalty.
Salo had faced disbarment or a lengthier suspension in New York, but the court there credited testimony from psychologists that Salo inadvertently misappropriated the funds in part because of post-traumatic stress he suffered after the terrorist attacks of Sept. 11, 2001. He was suspended for a year in New York starting in August 2010 and was reinstated without opposition in February of this year, according to the D.C. court's opinion.
In D.C., Salo challenged the Office of Bar Counsel's recommendation of reciprocal discipline and a one-year suspension. He argued that if he had gone through the same disciplinary proceedings in the District, the local court would have ordered "a substantially different sanction."
In the New York proceeding, the court found that Salo improperly commingled funds that were part of a settlement in a personal injury case with funds in a personal account. Salo didn't dispute those charges, but did argue against claims of dishonesty and fraudulent intent. Instead, he presented testimony that he inadvertently mishandled the funds because he was suffering from depression and post-traumatic stress related to the Sept. 11 attacks and also childhood abuse.
The New York court found Salo guilty of the charges, but didn't find that he committed them with any intent to be dishonest or deceive. The departmental disciplinary committee recommended disbarment or at least a three-year suspension, but the court instead imposed a one-year sanction.
The case in D.C. hinged on how to interpret the New York court's decision. The Office of Bar Counsel, according to the opinion, said the New York court concluded that Salo was found guilty of intentional misappropriation of funds, but it was mitigated by mental health issues. Salo countered that he was found guilty of the equivalent of negligent misappropriation.
Judge Corinne Beckwith, writing for the court, agreed with Salo. "If the court of original jurisdiction concluded that Mr. Salo did not intend to misappropriate funds, we are not inclined to impute that intent at this stage of review," she wrote.
Negligent misappropriation carries a six-month suspension in D.C., which Beckwith concluded was "substantially different" from what the New York court imposed. Cases where the sanction meets that "substantially different" standard offer an exception to reciprocal discipline, Beckwith wrote.
Salo's attorney, Pamela Bresnahan of Washington's Vorys, Sater, Seymour & Pease, said today that "it's the absolutely right result under the circumstances." He was also represented by Vorys attorney Elizabeth Simon. Bar Counsel Wallace "Gene" Shipp Jr. declined to comment.
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