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05/27/93 WILLIAM EDWARD GARDNER RESPONDENT A MEMBER

May 27, 1993

IN RE: WILLIAM EDWARD GARDNER, RESPONDENT A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Before Rogers, Chief Judge, and Terry and Sullivan, Associate Judges.

The opinion of the court was delivered by: Per Curiam

On Review of an Order of the Board on Professional Responsibility

PER CURIAM: Respondent, William E. Gardner, was admitted to the bars of Virginia and the District of Columbia. In May 1989, respondent was found guilty in the Circuit Court of Fairfax County, Virginia, of possession of cocaine *fn1 and was subsequently suspended by the Supreme Court of Virginia. On March 12, 1992, this court received a certified copy of the Virginia order and sua sponte suspended respondent from the Bar of the District of Columbia pursuant to D.C. Bar R. XI, § 11 (d) pending final Disposition of a reciprocal discipline proceeding. The court also filed an order directing respondent to show cause why the identical discipline should not be imposed in the District of Columbia and directed the Board on Professional Responsibility ("the Board") to recommend whether reciprocal discipline should be imposed.

The Board filed a Report and Recommendation which we set forth seriatim in this order. The Board recommended to this court that reciprocal discipline not be imposed on respondent pursuant to D.C. Bar R. XI, § 11 and that the case be referred to Bar Counsel for "appropriate action," pursuant to D.C. Bar R. XI, § 11 (g)(3). We remand the case to the Board for further proceedings de novo pursuant to D.C. Bar R. XI, § 8.

Respondent was disciplined in Virginia pursuant to a disciplinary rule that provides that illegal conduct that adversely reflects on a respondent's fitness to practice law is grounds for discipline. The comparable rule in the District of Columbia at the time that respondent committed the disciplinary violation in Virginia was DR 1-102 (A)(3), which provided that a lawyer shall not "engage in illegal conduct involving moral turpitude that adversely reflects on his fitness to practice law." Relying on decisions in In re Falls, BPR Dkt. No. 86-1359 (D.C. May 12, 1987) and In re Confidential, BPR Dkt. No. 209-86, the Board concluded that possession of cocaine is not a crime involving moral turpitude. Thus, the Board recommended to this court that reciprocal discipline not be imposed pursuant to D.C. Bar R. XI, § 11 (c)(5). *fn2

Notwithstanding its recommendation that reciprocal discipline not be imposed, the Board also recommended to the Court that this matter be referred to Bar Counsel for "appropriate action" because of respondent's failure to report to this court his Virginia felony conviction, pursuant to D.C. Bar R. XI, § 10 (a). Moreover, the Board was troubled that the Virginia State Bar made findings which suggest that respondent's use of cocaine was more than "recreational" and that it affected his professional performance and caused two other disciplinary violations in Virginia.

Rather than proceed in a piecemeal manner, i.e., to first address the Board's recommendation regarding reciprocal discipline and to then refer the Board's other concerns to Bar Counsel, we are of the opinion that the most efficient way to proceed is to remand this case to the Board for de novo proceedings to address the Board's additional concerns pursuant to D.C. Bar R. XI, § 8. Upon completion of any de novo proceedings by Bar Counsel or the Board, the court will then be in a better position to address at one time the Board's reciprocal discipline recommendation and any other recommendations that the Board may have.

We also direct the Board on remand to provide further explication for its Conclusion that possession of cocaine is not a crime involving moral turpitude and thus, not a violation of DR 1-102 (A)(3). *fn3 The decision in In re Falls, supra, relied on by the Board, is an order of this court that vacated a temporary suspension pending completion of reciprocal disciplinary proceedings. It is significant that the order does not clearly articulate the basis *fn4 for the panel's action setting aside the suspension based on a Florida conviction for cocaine possession. Similarly, the Board's reference to its decision in In re Confidential, supra, that possession of cocaine does not constitute a violation of DR 1-102 (A)(3), does not provide the court with any analysis, guidance or rationale as to how that decision was reached. Under the circumstances, supplemental rationale from the Board will be helpful to the court when it ultimately addresses the issue of whether respondent should be disciplined or not.

Accordingly, we remand this case to the Board for further proceedings consistent with this opinion. *fn5

It is so ordered.

ATTACHMENT

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL ...


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