On Report and Recommendation of the Board on Professional Responsibility (BDN 04-D141)
Submitted January 25, 2007
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and BELSON, Senior Judge.
In this disciplinary proceeding against respondent Leonard W. Krouner, a member of the Bar of the District of Columbia, the Board of Professional Responsibility ("Board") has recommended to this court that: (1) respondent be disbarred based upon his conviction of crimes of moral turpitude per se, and (2) the disbarrment be deemed to commence for purposes of reinstatement nunc pro tunc to May 23, 2003. We adopt the Board's recommendation that respondent be disbarred from the District of Columbia and order that the disbarrment commence nunc pro tunc to May 23, 2003.*fn1
On February 20, 2003, respondent entered a plea of guilty to three felonies in the New York State Supreme Court Appellate Division, Third Judicial Department ("NYSAD"), in Albany County, New York. The convictions were for one count of insurance fraud in the third degree, in violation of the Penal Law of the State of New York ("Penal Law") § 176.20; one count of grand larceny in the fourth degree, in violation of Penal Law § 155.30 (1); and one count of workers' compensation fraudulent practices, in violation of Workers' Compensation Law of the State of New York § 144 (1). Respondent's convictions stemmed from falsely reporting his level of professional functioning in order to obtain increased disability benefits from his private insurance coverage. On May 12, 2003, Respondent was sentenced by the New York court to six months of imprisonment and five years of probation.
On May 23, 2003, the NYSAD formally disbarred respondent based upon his criminal convictions.*fn2 Bar Counsel reported New York's disciplinary action to this court, and on May 18, 2004, this court entered an order temporarily suspending respondent pursuant to D.C. Bar R. XI, § 11 (d) and directing the Board either to recommend reciprocal discipline or proceed de novo.
On September 28, 2005, the Board, proceeding de novo, issued its Report and Recommendation recommending that: (1) respondent be disbarred under D.C. Code § 11-2503 (a) (2001), which requires disbarrment "when a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude"; and (2) the disbarrment be deemed to commence for purposes of reinstatement nunc pro tunc to May 23, 2003. Respondent filed an exception to these recommendations, challenging the constitutionality of § 11-2503 (a), the applicability of this statute to his particular case, and the Board's finding of moral turpitude per se.
We review the Board's recommendation in accordance with D.C. Bar R. XI, § 9 (g) (1998), which requires this court to adopt the recommended discipline of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted. In re Marshall, 762 A.2d 530, 536 (D.C. 2000). "We review de novo any Board determination of moral turpitude, since 'the ultimate issue of moral turpitude is one of law rather than of fact.'" In re Sneed, 673 A.2d 591, 593 (D.C. 1996) (internal citation omitted).
Respondent's first contention, that D.C. Code § 11-2503 (a) violates the doctrine of separation of powers under Articles I and III of the United States Constitution, was specifically rejected by this court in In re Kerr., 424 A.2d 94, 98-99 (D.C. 1980). In re Kerr held that D.C. Code § 11-2503 (a) is constitutional because "Congress is not constrained by . . . separation of powers considerations" when it creates courts "pursuant to the plenary power . . . to legislate for the District of Columbia as provided in Art. I, § 8, cl. 17 of the Constitution," under which this court and the Superior Court of the District of Columbia were established. In re Kerr, supra, 4 424 A.2d at 98-99. Accordingly, D.C. Code § 11-2503 (a) is constitutional and respondent's first contention is without merit.
Respondent's second contention, that the Americans with Disabilities Act proscribes his automatic disbarrment for crimes of moral turpitude per se, has also been rejected by this court. In In re Marshall, supra, we held that the ADA's requirement of reasonable accommodation for employee disabilities does not shield an attorney from disbarrment when he commits a criminal act, not withstanding that a disability may have been an underlying factor in causing the criminal act. 762 A.2d 530 at 540. Our reasoning in In re Marshall applies here, where respondent was convicted of crimes of moral turpitude allegedly attributable to his disability.*fn3 Consequently, the ADA does not shield respondent from disbarrment.
Respondent further argues that the automatic disbarrment provision of D.C. Code § 11-2503 (a), as interpreted in In re Colson, 412 A.2d 1160 (D.C. 1979), is unconstitutional in that it fails to provide due process protections. We recognize the fact that an attorney is guaranteed the right to notice of disbarrment proceedings and the right to be heard before the Board, and this court, on the issue of moral turpitude. Colson, supra, 412 A.2d at 1164. These procedural safeguards were granted to respondent, who has presented his position before the Board, and this court, that his crimes did not involve moral turpitude.*fn4 Once the Board determines that an attorney has been convicted of a crime of moral turpitude per se, however, the attorney has no right to a mitigation hearing under D.C. Code § 11-2503 (a).*fn5 This court has consistently upheld the constitutionality of these procedures, and we therefore reject respondent's due process argument. See In re Sharp, 674 A.2d 899, 900 (D.C. 1996) (holding that the procedures for determining moral turpitude under D.C. Code § 11-2503 (a) satisfy due process requirements and that automatic disbarrment under this section does not violate substantive due process); ...