Before Terry, Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
A Member of the Bar of the District of Columbia Court of Appeals
On Report and Recommendation of the Board on Professional Responsibility
Respondent was convicted in Maryland of misdemeanor theft of eighteen dollars. The Board on Professional Responsibility (Board) recommends that he be suspended for one year, with a requirement to show fitness before reinstatement pursuant to D.C. Bar R. XI, § 16 (2000). The Board unanimously concluded, as had the Hearing Committee, that respondent violated Rule 8.4(b) of the D.C. Rules of Professional Conduct, but did not commit an "offense involving moral turpitude" within the meaning of D.C. Code § 11-2503(a) (1995). Bar Counsel takes exception and urges that respondent be disbarred under the statute. On the particular facts of this case, we adopt the Board's recommendation. *fn1
Respondent was admitted to our Bar in June 1991 and the Maryland Bar in 1992, but has never actually practiced law. In 1995, respondent was employed for the summer as a night bus driver in Ocean City, Maryland. On August 10, an undercover police detective and another person boarded the bus respondent was driving. Each paid with a marked bill, and respondent placed both fares in a bag next to his seat. (He presumably should have placed them in the ticket money box.) The detective and his companion then observed respondent do the same with other fares as passengers boarded. The detective eventually exited the bus to meet a patrol car, but his companion remained on board and saw respondent remove several dollars from the ticket money box and place them in his pocket.
At the end of the route, the detective approached respondent and directed him to get off the bus, at which time respondent immediately confessed and offered to make amends. The detective seized $18 from him, including the marked bills, and placed him under arrest. On February 12, 1996, respondent pled guilty to theft, Md. Code Ann., Crimes & Punishment § 27-342 (1995), a misdemeanor since less than $300 was involved. See id. § 27-342(f)(2). At the plea hearing, respondent admitted that the August 10 incident was not an isolated event, but maintained that the total amount he took was $18. He was ultimately sentenced to sixty days imprisonment, suspended except for seven days, and placed on supervised probation for eighteen months. He was also fined $500, ordered to pay certain costs, and ordered to perform 100 hours of community service.
On September 26, 1996, respondent was indefinitely suspended by consent in Maryland. As a result, on November 4, 1996, this court ordered respondent suspended pending final disposition pursuant to Bar Rule XI, § 11(d), and he has remained suspended in this jurisdiction since that date. On December 19, 1996, this court issued a separate interim suspension order pursuant to Bar Rule XI, § 10(c), after receiving a certified copy of the conviction itself. On March 13, 1997, the Board concluded that respondent's crime did not involve moral turpitude per se since it was a misdemeanor, see In re McBride, 602 A.2d 626 (D.C. 1992)(en banc), and therefore referred the matter to a hearing committee. *fn2
Based on the facts developed at the hearing, the Board agreed with the Hearing Committee that respondent's crime did not involve moral turpitude within the meaning of D.C. Code § 11-2503(a). The Board first noted that respondent was not a practicing attorney at the time of the incident and that the theft was of very little money. The Board specifically concluded that there was "no evidence . . . that Respondent's criminality was a more extensive enterprise that deprived the Ocean City Department of Transportation of substantially more than $18." The Board also focused on respondent's mental state at the time of the offense. *fn3 Evidence from two doctors was presented at the hearing: Dr. Eugene Bautista, who began providing mental health counseling to respondent in August 1995, and Dr. Richard Ratner, an expert in forensic psychiatry who examined respondent in August 1997 at Bar Counsel's request. Dr. Bautista indicated that respondent was affected by extreme stress, depression, and alcohol abuse when the incident took place. Dr. Ratner diagnosed respondent as a suffering from schizoaffective disorder, alcohol abuse, and adjustment disorder with mixed anxiety and depressed mood; termed him a"significantly disturbed individual"; and testified that respondent engaged in "self- defeating behavior." Dr. Ratner concluded that respondent's mental state at the time of the offense was consistent with his diagnostic impressions.
Respondent also testified about some specific factors contributing to his mental state at the time of the offense, leading the Hearing Committee to conclude that he was in a "downward spiral" at the time because his father was ill, his relationship with his fiancee was in trouble, he could not find a job in the legal field, and he was suffering from alcohol abuse. Noting the Hearing Committee's conclusion that "[r]espondent's actions were clearly caused by his deep seated personality disorders," and suggesting that respondent's "self-defeating behavior" might have been a motivating factor in his stealing the money as he did, the Board found similarities to In re Kent, 467 A.2d 982, 984 (D.C. 1983), in which a mentally ill attorney blatantly shoplifted out of a "neurotic desire to be caught rather than a desire for personal profit."
Under the totality of the circumstances, the Board concluded that respondent's crime did not involve moral turpitude under § 11-2503(a), but that his actions did violate Rule 8.4(b) of the D.C. Rules of Professional Conduct, which states that it is professional misconduct for a lawyer to "[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Based on the foregoing conclusion, the Board recommends that respondent be suspended for one year with a requirement that he show fitness before reinstatement pursuant to D.C. Bar R. XI, § 16.
The principal issue we are called upon to resolve in this matter is a legal one. As we understand it, it is Bar Counsel's position in essence that when a misdemeanor involves an element which would render the offense moral turpitude per se if a felony, it is improper for the Board to consider what Bar Counsel calls "mitigating factors." Thus, Bar Counsel argues, since respondent was convicted of misdemeanor theft, which in Maryland differs from felony theft only in the value of the property stolen, and a conviction of either type of theft requires proof of a specific intent to steal, which we have held in previous felony cases to evidence moral turpitude per se, we should ...