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07/18/90 MATTER WILLARD C. MCBRIDE RESPONDENT. A

July 18, 1990

IN THE MATTER OF WILLARD C. MCBRIDE, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Rogers, Chief Judge, and Newman and Terry, Associate Judges.

IN Agreement opinion by Rogers, Chief Judge, with whom Terry, Associate Judge, joins, at p. 2.

The opinion of the court was delivered by: Per Curiam

We are called upon to consider a Report and Recommendation of the Board on Professional Responsibility that respondent be disbarred from the practice of law. The Board found that respondent was convicted in the United States District Court for the District of Columbia of one count of aiding and abetting a client to commit passport fraud in violation of 18 U.S.C. § 1028 (a) (4) (1988). The Board also concluded that this offense involves moral turpitude, thus requiring disbarrment pursuant to D.C. Code § 11-2503 (a) (1989).

We accept the Board's findings of fact as supported by substantial evidence, including a certified copy of respondent's conviction from the United States District Court for the District of Columbia. We agree with the Board's Conclusion that one who aids and abets an offense that is within the purview of D.C. Code § 11-2503 (a) shall be permanently disbarred pursuant to that statute. We also agree with the Board that the offense for which respondent was convicted involved moral turpitude, for the reasons set forth by the Board in its Report and Recommendation, which we attach hereto and incorporate by reference.

Accordingly, it is:

ORDERED that respondent, WILLARD C. McBRIDE, is permanently disbarred from the practice of law in the District of Columbia pursuant to D.C. Code § 11-2503 (a). See In re Kerr, 424 A.2d 94 (D.C. 1980) (en banc); In re Colson, 412 A.2d 1160 (D.C. 1979) (en banc); In re Willcher, 447 A.2d 1198, 1200 (D.C. 1982). This order shall be effective thirty days from the date of this opinion.

ROGERS, Chief Judge, Concurring with whom TERRY, Associate Judge, joins: The Board on Professional Responsibility has noted in its Report to this court that the result of our interpretation of § 11-2503 (a) (1989) is "widely disparate treatment of attorneys whose conduct is within the range of comparability," contrary to the dictate of D.C. Bar Rule XI § 7 (3). REPORT OF THE D.C. BOARD ON PROFESSIONAL RESPONSIBILITY (REPORT) of July 28, 1989 at 22. The Board requests that the court revisit its decisions in In re Colson, 412 A.2d 1160 (D.C. 1979) (en banc), and In re Kerr, 424 A.2d 94 (D.C. 1980). See REPORT at 2, 22, 24-25. Respondent's conviction as an aider and abettor, as distinct from the principal actor, presents a potentially complex issue in imposing discipline into which In re Colson forecloses any inquiry. The anomaly is pronounced since the conviction of a crime of moral turpitude does not bar admission to the Bar. In re Manville, 538 A.2d 1128 (D.C. 1988) (en banc). Respondent's brief provides a persuasive argument in support of the Board's suggestion that the court revisit these issues.

Accordingly, the court is presented with an appropriate occasion to re-examine its interpretation of D.C. Code § 11-2503 (a) as requiring permanent disbarrment upon conviction of a crime of moral turpitude with no possibility of reinstatement, absent a presidential pardon. As a distinguished member of the D.C. Board on Professional Responsibility has reminded us, "this statute is undoubtedly a harsh one." *fn1 Several members of the court have indicated a willingness to reconsider our interpretation of the statute in view of the possibility of an alternative analysis. See In re Wolff, 511 A.2d 1047 (D.C. 1986) (en banc); In re Kerr, supra, 424 A.2d at 100-03 (Ferren, J., Dissenting).

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

Docket No. 394-88

IN THE MATTER OF WILLARD C. MCBRIDE, RESPONDENT

REPORT AND RECOMMENDATION OF BOARD ON PROFESSIONAL RESPONSIBILITY

This matter is before the Board on Professional Responsibility pursuant to an order of the District of Columbia Court of Appeals. The Court's order suspended Respondent from the practice of law as provided in D.C. Bar R. XI § 15(1), based on his guilty plea to criminal charges of aiding and abetting a client to commit passport fraud in violation of 18 U.S.C. §§ 2(a), 1028(a) (4). Over Respondent's objections and contrary arguments, the order reflected the Court's Conclusion that Respondent has been found guilty of a "serious crime" within the meaning of D.C. Bar R. XI, § 15(1). The Court therefore directed this Board "to institute a formal proceeding for determination of the nature of the final discipline to be imposed, and specifically to review the elements of the crime . . . for the purpose of determining whether or not the crime involves moral turpitude within the meaning of D.C. Code 11-2503(a)."

The Board's review has disclosed that the essential elements of the particular crime of which Respondent stands convicted include a knowing intent to defraud. Controlling precedents of the District of Columbia Court of Appeals have firmly established that crimes whose elements include such intentional fraud are crimes involving moral turpitude per se as a matter of law, and the Board is bound by such precedents. Accordingly, it is recommended that the Court enter an order permanently disbarring Respondent from the practice of law pursuant to D.C. Code § 11-2503(a) as interpreted by the Court in In re Kerr, 424 A.2d 94 (1980) (en banc).

As a closing comment, the Board observes that the Court's most recent en banc order pursuant to D.C. Code § 11-2503(a) noted that "everal members of the court would reconsider the permanent disbarrment holding of this court in In re Kerr, 424 A.2d 94 (D.C. 1980) (en banc)," but the Court declined to do so "because that issue has not been raised in this case." In re Peter L. Wolff, 511 A.2d 1047 (D.C.C.A. June 30, 1986) (en banc) (Order imposing permanent disbarrment "for the reasons stated in the Division opinion, In re Wolff, 490 A.2d 1118 (D.C. 1985)"). Our closing comment sets forth some practical considerations arising out of the Board's experience under the holding in Kerr if such issue is appropriately raised in this case when it reaches the Court.1a

I. PROCEDURES AND STANDARDS APPLICABLE TO BOARD'S DETERMINATION OF "MORAL TURPITUDE" FOR PURPOSES OF D.C. CODE § 11-2503(a)

In cases of this type, the Board is bound to follow the procedures and to apply the legal standards laid down by the Court for determining moral turpitude under D.C. Code § 11-2503(a).

A. Procedures for Determining Moral Turpitude

The Court's opinion in In re Colson, 412 A.2d 1160 (D.C. 1979) set forth the applicable procedures that the Board must follow in this case. These procedures have been incorporated into Board Rules 10.1 and 10.2.

The Board must make an " initial determination as to whether the attorney's crime inherently involves moral turpitude." 412 A.2d at 1164. In such initial determination, the Board must draw "a distinction . . . between offenses which manifestly involve moral turpitude by virture of their underlying elements, and those which do not." Id. Moreover, the Colson Court stressed that this initial determination is strictly a legal inquiry based "on the type of crime committed rather than on the factual context surrounding the actual commission on the offense," because disbarrment of an attorney under § 11-2503 (a) is "for his conviction of a crime involving moral turpitude, not for his commission, of an act involving moral turpitude." Id.

Thus, the procedures mandated by the court require the Board to make a preliminary legal analysis of the elements of the particular criminal offense. If such analysis shows that the conviction, considered in light of the minimum legal elements essential to establish the criminal offense, necessarily required conduct involving moral turpitude, then the attorney's conviction stands for moral turpitude per se. Moreover, if the Board's preliminary analysis discloses moral turpitude per se, "that is the end of the [Board's] inquiry" because, as a matter of law, "the Board must recommend disbarment." 412 A.2d at 1164.

The prescribed procedures also require the Board to distinguish those cases where the Court has previously "made a final determination that a crime involves moral turpitude." As to such cases, the Board's initial determination "shall be limited to the question whether the certificate of conviction. . . establishes that the attorney, in fact, has been convicted" of the crime previously determined by the court to involve moral turpitude. Id. at 1165. On the other hand, in cases where "the particular crime at issue has not been considered by this court" under D.C. Code § 11-2503(a), then the moral turpitude legal issues can be addressed at an initial hearing before the Board, and only if it is concluded in "the Board's initial determination [that the conviction] does not inherently involve moral turpitude" will it "become necessary" to proceed to a "full hearing" exploring the underlying factual circumstances of the attorney's conviction.

In this case, the Board has followed the procedures that are prescribed by Colson. It has also received and considered excellent briefs from Respondent and Bar Counsel on the pertinent legal issues to be addressed pursuant to those procedures.

Respondent has requested oral argument, which the Board in the exercise of its discretion has decided not to authorize. Board Rule 10.1. The Board's experience has demonstrated, and this case is no exception, that the question of moral turpitude per se typically turns on legal issues that are best addressed in briefs. Moreover, oral argument almost invariably spills over into an effort by Respondent to present factual points "in mitigation of his guilty plea and the conduct which was outlined in the information", whereas the court has expressly declared that mitigating or explanatory evidence is "unnecessary" where, as here, the legal analysis establishes that the crime of which Respondent was convicted inherently involves moral turpitude. 412 A.2d at 1168.

B. Legal Standards for Determining Moral Turpitude

The Court's opinion in Colson recognized that "the question whether a crime inherently involves moral turpitude is very difficult" and that "the term 'moral turpitude' has less than a finite definition." 412 A.2d at 1165 n.10 and 1167. It was for this reason that the Court "set out a model to assist the Board in disposing of those cases where [an evidentiary] . . . hearing is necessary" as a result of the Board's initial determination that the attorney's crime did not involve moral turpitude per se.

The legal standards of Colson are general guidelines that focus the full evidentiary hearing on such issues as whether "the act denounced by the statute offends the generally accepted code of mankind", or whether the criminal act is one of "baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general", or whether the act is "contrary to Justice, honesty, modesty or good morals." 412 A.2d at 1168. Since these guidelines for a full evidentiary hearing are general in nature, "the Board accordingly will want to err on the side of admitting evidence that goes to the moral implications of the particular respondent's acts" to determine "whether his particular offense involved moral turpitude, even if the crime cannot be said per se to do so." Id. at 1165, n.10.

Respondent stresses the Colson language quoted above to support the contention that this case should be referred to a Hearing Committee for a full evidentiary hearing to develop all of the circumstances of the alleged criminal offense and Respondent's guilty plea. It is clear, however, that these broad and general guidelines of Colson apply only where the Board's initial determination discloses no moral turpitude per se. Such guidelines have no application in a case, such as this one, where the attorney's criminal offense has already been determined by the Court to be one involving moral turpitude.

This case is governed by the Court's decision in In re Willcher, 447 A.2d 1198 (D.C. 1982), and its progeny. The attorney in Willcher "was convicted . . . of unlawful solicitation of money from an indigent whom he had been appointed to represent under the CJA", a misdemeanor for which the attorney was sentenced to six months' imprisonment and fined $700. The prison sentence was suspended and probation of 15 months was imposed. In rejecting the Board's Conclusion that the conviction in Willcher did not involve moral turpitude, the Court quoted and adopted the rule in California:

"Although the problem of defining moral turpitude is not without difficulty, it is settled that whatever else it may mean, it includes fraud and that a crime in which an intent to defraud is an essential element is a crime involving moral turpitude."

412 A.2d at 1200, quoting Justice Traynor's opinion in In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, 771 (Calif. 1954), appeal after remand, 48 Cal.2d 52, 307 P.2d 1 (Calif. 1957).

Although the criminal convictions in Willcher and Hallihan were concerned with "an offense involving both fraud and intentional dishonesty for personal gain", the Willcher court held that fraud alone is sufficient to constitute moral turpitude under ยง 11-2503(a). As stated by the court, the criminal conviction in Willcher "always a fraud on the client . . . and on the judicial system, and we hold that . . . ...


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