March 27, 1992
IN RE: GARY STEVEN MANDEL, RESPONDENT
A Member of the Bar of the District of Columbia Court of Appeals
Before Rogers, Chief Judge, Steadman, Associate Judge, and Mack, Senior Judge.
The opinion of the court was delivered by: Per Curiam
On Report and Recommendation of the Board on Professional Responsibility
PER CURIAM: Respondent seeks a hearing before the Board on Professional Responsibility to present evidence that his crimes (4 counts of obtaining possession of a controlled substance by forgery, 21 U.S.C. § 843 (a) (3)) were a direct result of his addiction that began when he received dilaudid over a two year period (1982-84) from his physician to treat cervical pain. The D.C. Board on Professional Responsibility found that the crime of which Mandel had been convicted was a per se crime of moral turpitude, and recommended that he be disbarred if his conviction became final. BPR Report of May 12, 1986, at 3. *fn1 The Fourth Circuit thereafter confirmed the conviction. United States v. Mandel, No. 85-5280 818 F.2d 862 (4th Cir. May 12, 1987) (unpublished decision). By order of January 9, 1991, this court stayed this appeal pending our en banc decision in In re McBride, No. 88-1563, 602 A.2d 626 (D.C. Jan. 21, 1992).
McBride does not explicitly reach the issue in this appeal. Nor have our other decisions. See In re Temple, 596 A.2d 585 (D.C. 1991) (addiction to drugs lawfully obtained, like alcoholism, can be a mitigating factor in determining the sanction). Recently, however, the court in In re Hopmayer, No. 89-1425, 602 A.2d 655 (D.C. January 28, 1992), remanded the case to the Board on Professional Responsibility, which had recommended disbarrment under D.C. Code § 11-2503 (a) (1989) as a result of the conviction of a felony "inherently involving moral turpitude." *fn2 Without deciding whether In re Kersey, 520 A.2d 321 (D.C. 1987), which involved D.C. Bar Rule XI and not D.C. Code § 11-2503 (a), applies when an attorney is otherwise subject to automatic disbarrment under the statute, the court asked the Board to advise what effect, if any, Hopmayer's alleged alcoholism should have on the imposition of the disciplinary sanction. See slip op. at 7 & n.7. If the Board determined that alcoholism may be a mitigating factor, then the Board was directed to decide whether mitigation was warranted for Hopmayer, and if so, what alternative sanctions may be available. Id.
Accordingly, in view of our remand in Hopmayer, we remand the instant case for a recommendation from the Board on Professional Responsibility on whether drug addiction, commencing with the lawful prescription of drugs, if a substantial factor in criminal action underlying a felony conviction, may be a mitigating factor in imposing a disciplinary sanction in a per se crime of moral turpitude under D.C. Code § 11-2503 (a) (1989). If so, then in view of the findings of the Maryland Court of Appeals concerning the addiction, the Board should determine what alternative sanction may be appropriate for Mandel. Cf. In re Richardson, No. 90-1539 602 A.2d 179 (D.C. January 17, 1992) (collateral estoppel effect given to foreign judgment in reciprocal discipline case).