On Report and Recommendation of the Board on Professional Responsibility.
The opinion of the court was delivered by: Washington, Chief Judge
Before WASHINGTON, Chief Judge, REID, Associate Judge, and JOSEY-HERRING,*fn1 Associate Judge, Superior Court of the District of Columbia.
Bar Counsel takes exception to the Report and Recommendation of the Board on Professional Responsibility (the "Board") which concluded that Respondent's criminal conviction for misdemeanor sexual abuse did not constitute a sanctionable ethics violation under Rule 8.4 (b) of the District of Columbia Rules of Professional Conduct (the "Rules"). Bar Counsel also contends that a thirty-day suspension is more appropriate than the Board's recommendation of public censure.*fn2 Respondent did not file a brief in this court. The Board similarly did not seek leave to file a brief in this matter, but instead rests on the analysis and conclusion contained in its Report and Recommendation. We agree with Bar Counsel that crimes of a sexual nature violate an attorney's ethical obligations, and that Respondent's actions warrant thirty days suspension.
Following a bench trial, Respondent was found guilty of misdemeanor sexual abuse of Ms. Katherine Wesson. Respondent, in November 2002, lost his direct appeal to this court. See Harkins v. United States, 810 A.2d 895 (D.C. 2002). The facts of the underlying incident are detailed in our previous opinion:
On the morning of October 8, 1999, the [victim], Ms. Wesson, boarded a Metro train at the Deanwood Station on the Orange Line traveling to work. Ms. Wesson was sitting in the window seat reading a newspaper when the [respondent], Harkins, boarded the train at the Eastern Market Station and sat in the seat next to her. After sitting down, Harkins and Ms. Wesson had a brief conversation, which included an exchange of names and places of employment.
According to the government's evidence [at trial], several events took place after Harkins sat down next to Ms. Wesson. While sitting next to Ms. Wesson, Harkins began to move closer to her and started rubbing his leg against hers, and then his hand against her thigh. Following this contact, Ms. Wesson decided to change seats and as she "brushed past" Harkins, she felt him touch her buttock. Ms. Wesson responded, "No, you can't do that" and proceeded to change seats. After Ms. Wesson sat down in her new seat, again a window seat, Harkins moved beside her and attempted to engage Ms. Wesson in conversation. Ms. Wesson responded that she did not want to talk with Harkins and then changed seats a second time, this time sitting in an aisle seat. Harkins then moved to the seat directly across the aisle from Ms. Wesson's new seat . . . . When the Metro train reached the McPherson Square Metro Station, Harkins got up, dropped his business card in Ms. Wesson's newspaper, and said, "Give me a call sometime, baby."
Respondent John J. Harkins has been a member of the Bar of the District of Columbia since April 16, 1974. At the time of the events at issue, Respondent was Executive Vice President and Chief Executive Officer of the Printing and Graphics Communications Association in Washington, D.C. He formally retired from that position on May 31, 2000, and has been on inactive status with the Bar since April 27, 2000. Prior to the incident at issue, Respondent had never been the subject of any disciplinary action or criminal proceeding.
Rule XI, § 9 (g)(1) of the District of Columbia Court of Appeals Rules Governing the Bar sets forth the standard of review for the Board's findings of fact and recommended sanction. Regarding findings of fact, the "[c]court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record." Id. Of course, we owe no deference to the Board's conclusions of law. In re Fair, 780 A.2d 1106, 1110-11 (D.C. 2001). The issue of whether Respondent's actions constitute an ethical violation is a question of law, and thus our review is de novo.
Rule 8.4 (b) states that it is professional misconduct for an attorney to "[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." D.C. R. Prof'l Conduct 8.4 (b). Through its own terms, it is clear that not every criminal act warrants professional sanctions. Rather, the rule is designed to professionally sanction only those criminal acts that implicate and call into question the fundamental characteristics we wish attorneys to possess.
Although there is sparse case law in this jurisdiction dealing with Rule 8.4 (b), we have, on occasion, applied that Rule to situations involving sexual misconduct. Specifically, we have held that sexual relations with minors, In re Childress, 811 A.2d 805 (D.C. 2002); In re Bewig, 791 A.2d 908 (D.C. 2002) (per curiam), as well as sexual assaults on clients, In re Key, Bar Docket No. 169-04 (BPR Nov. 12, 2004), aff'd, 863 A.2d 837 (D.C. 2004) (per curiam), are violations of Rule 8.4 (b). While those cases provide guidance on the confluence of improper sexual conduct and Rule 8.4 (b), they are distinguishable from the case sub judice. Sexual misconduct with minors and children directly implicates an attorney's trustworthiness because such actions imply a willingness to take advantage of those in a subordinate and vulnerable position. Such is not the situation in the instant case. Respondent was not ...