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In re Borders

District of Columbia Court of Appeals

May 02, 2002


Before Steadman and Farrell, Associate Judges, and King, Senior Judge.

The opinion of the court was delivered by: Farrell, Associate Judge

On Motion to Vacate Order of Disbarrment

Concurring opinion by Associate Judge Steadman at page 5.

Petitioner was disbarred from the practice of law in the District of Columbia following an unsuccessful appeal of his 1982 federal convictions for conspiracy, obstruction of justice, and unlawful travel in interstate commerce with intent to commit bribery. Under this court's decisions, these crimes each involved moral turpitude, see In re Borders, 665 A.2d 1381, 1382 (D.C. 1995), requiring his disbarrment under D.C. Code § 11-2503 (a) (2001). *fn1 On January 20, 2001, President William J. Clinton granted petitioner a full and unconditional pardon. Petitioner now, rather than seek reinstatement via a petition filed with the Board on Professional Responsibility, see D.C. Bar R. XI, § 16 (d) (2001), asks the court to reinstate him automatically by virtue of the pardon, contending that "this Court must use its authority under D.C. Code § 11-2503 and modify or vacate Mr. Borders's disbarrment by reinstating him to the D.C. Bar." We deny the petition without prejudice to the filing of a proper petition for reinstatement before the Board, in which petitioner may urge the pardon as a consideration favoring reinstatement. We express no view at this time concerning the proper weight to be given the pardon in determining whether petitioner has proven his fitness for reinstatement.

D.C. Code § 11-2503 (a) provides that, "[i]f a final judgment of conviction [of an offense involving moral turpitude] is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and such person shall thereafter cease to be a member." We have recognized repeatedly that, "in accordance with the plain language of section 11-2503 (a)," disbarrment is mandatory once the "final judgment" condition is met. In re Hopmayer, 625 A.2d 290, 292 (D.C. 1993); see also, e.g., In re McBride, 602 A.2d 626, 629 (D.C. 1992) (en banc). *fn2 By contrast, the same section states that, "[u]pon the granting of a pardon to a member so convicted, the court may vacate or modify the order of disbarrment" (emphasis added). The legislature's use of the permissive "may," on its face, would seem to defeat petitioner's argument that the court has no discretion but to reinstate an attorney disbarred under the statute but subsequently pardoned. In McBride this court described the legislative history of § 11-2503, including a comprehensive amendment of the statute in 1920 that gave the court "power," upon the granting of a pardon, "to vacate or modify [a prior] order of disbarrment or suspension." 602 A.2d at 638. The court, in passing, pointed out that in proposing adoption of that amendment the House Committee on the Judiciary "explained that a pardon would not automatically reverse any disbarrment; rather, the decision to reinstate after a pardon remained with the court." Id. at 639 n.23 (citing To Amend the Code of the District of Columbia: Hearings on H.R. 14974 Before the House Comm. on the Judiciary, 64th Cong., 1st Sess. 63 (1916)).

Despite this authority plainly indicating that a pardon does not have the automatic effect petitioner would give it, he argues that in In re Abrams, 689 A.2d 6 (D.C. 1997) (en banc), the court implicitly recognized that when disbarrment rests solely upon proof of conviction, as it does under § 11-2503 (a), a subsequently granted pardon strips the disbarrment of its continued legitimacy. Abrams does not stand for that conclusion; indeed, the Abrams court was not asked to decide the effect of a pardon upon a disbarrment based on § 11-2503 (a). Abrams had pled guilty to two counts of wilful failure to answer questions pertinent to a Congressional inquiry, a crime Bar Counsel did not contend involved moral turpitude. See id. at 11. After Abrams was pardoned by the President, the Board on Professional Responsibility recommended his suspension for one year on the ground that the underlying conduct involved dishonesty, deceit, or misrepresentation in violation of a disciplinary rule. Id. at 6. In accepting that finding of misconduct (but imposing the lesser sanction of public censure), the court rejected the argument that the "court's authority to impose professional discipline was . . . nullified by the presidential pardon." Id. at 7. *fn3

Petitioner is correct that, although rejecting Abrams' claim regarding the effect of a pardon, the court opined that "[t]he presidential pardon would undoubtedly have precluded a sanction based on Abrams' conviction, and Abrams did not, in any event, commit such a crime [i.e., one involving moral turpitude]." Id. at 11 (emphasis added). But as the discipline imposed in Abrams did not stem from the application of § 11-2503 (a), the court did not have to come to grips with the Congressional judgment expressed in that statute that "`the decision to reinstate after a pardon remain[s] with the court,'" as a matter of discretion. McBride, 602 A.2d at 639 n.23 (quoting Congressional report). Moreover, the quoted language from Abrams was stated in the context of a pardon that had been issued before attorney discipline was imposed, see Abrams, 689 A.2d at 9, a situation different from the present case and one that § 11-2503 (a) by its terms appears not to address. Consequently, the statements in Abrams on which petitioner relies provide no basis for disregarding the plain language of the statute.

Based upon that language, we reject petitioner's argument that the pardon requires his automatic reinstatement without regard to whether he has established fitness to resume practice in accordance with D.C. Bar Rule XI, § 16 (d) and the factors set forth in In re Roundtree, 503 A.2d 1215 (D.C. 1985). See In re Lavine, 2 Cal. 2d 324, 41 P.2d 161, modified, 2 Cal. 2d 324, 42 P.2d 311 (1935). Petitioner must file the appropriate application for reinstatement with the Board, and in that proceeding he "may urge the pardon as a consideration for reinstatement." Grossgold v. Supreme Court of Illinois, 557 F.2d 122, 126 (7th Cir. 1977).

Petition denied.

Steadman, Associate Judge, concurring:

I continue to adhere to the view of the dissent in In re Abrams as to the continued force of Supreme Court precedent, which only that Court can overturn, on the effect of a presidential pardon. However, bound as I now am by the contrary view of the majority in Abrams, I concur in the exposition of the court's opinion as to the appropriate next step in this reinstatement proceeding.

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