Argued April 19, 2012[*]
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 436659)
On Report and Recommendation of the Board on Professional Responsibility (BDN-244-09)
Kevin B. Bedell for respondent.
Julia L. Porter, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
Elizabeth J. Branda, Executive Attorney, with whom Benjamin M. Lee, Assistant Executive Attorney, was on the brief, for the Board on Professional Responsibility.
Before Glickman and Blackburne-Rigsby, Associate Judges, and Belson, Senior Judge.
BELSON, Senior Judge.
This case of first impression raises the question whether a criminal conviction entered in a foreign country is a "conviction of [a] crime" within the meaning of D.C. Bar R. XI, § 10, and can be the basis for imposing the mandatory disbarment provisions of D.C. Code § 11-2503 (a) (2001) for conviction of a crime of moral turpitude. We agree with the unanimous recommendation of the Board on Professional Responsibility ("the Board") that the conviction of a member of the District of Columbia Bar in a court of a foreign country is not a conviction of a crime within the meaning of the aforementioned rule and statute. Accordingly, a conviction in a court of a foreign country, unlike a conviction in a court of this country, is not automatically given conclusive effect for purposes of suspension or disbarment pursuant to D.C. Code § 11-2503 (a) and D.C. Bar R. XI, § 10. We also recognize, however, that Bar Counsel can initiate original proceedings against an attorney pursuant to D.C. Bar R. XI, § 8, based upon alleged criminal conduct in a foreign country. The prospect of such a § 8 proceeding raises another issue of first impression, viz., whether in a § 8 proceeding offensive collateral estoppel effect may be given to the conviction of a crime in the court of a foreign country. We conclude that the factual and legal determinations embodied in a foreign conviction may be given conclusive effect in a § 8 proceeding pursuant to principles of collateral estoppel if the Board, in its discretion, determines that Bar Counsel has established that it is fair and reasonable to do so.
A. Procedural Background
Bar Counsel notified this court by a letter dated November 2, 2010, that a judgment of conviction had been entered against respondent Jinhee Kim Wilde, a member of the District of Columbia Bar, on August 28, 2009, by the Incheon District Court in Incheon, Republic of Korea (South Korea). The conviction was based on that court's finding that respondent had stolen $1, 100 in U.S. currency from another passenger while on a flight from Washington to Incheon, South Korea. Bar Counsel enclosed with its letter a certified copy and a certified English translation of the judgment pursuant to D.C. Bar R. XI, § 10, and a proposed order of temporary suspension under § 10 (c) for conviction of a "serious crime" as defined by § 10 (b).
Respondent promptly filed a formal opposition to the proposed order of temporary suspension, and argued, among other things, that the provisions of D.C. Bar R. XI, § 10, apply only to convictions by courts located in the United States. Bar Counsel contended in reply that D.C. Bar R. XI, § 10, applies to convictions by courts of foreign countries. After considering briefs filed by respondent and Bar Counsel, a motions panel of this court entered our standard order temporarily suspending respondent, and directing the Board to institute formal proceedings to determine the nature of the offense and whether it involved moral turpitude within the meaning of D.C. Code § 11-2503 (a).
Bar Counsel recommended to the Board that respondent be disbarred pursuant to § 11-2503 (a) on the basis of her conviction in South Korea. Specifically, Bar Counsel recommended that the conviction be treated as a felony because it exposed respondent to a sentence of up to six years of imprisonment, and because it was for theft, an offense that involved moral turpitude. Respondent opposed Bar Counsel's recommendation, arguing, inter alia, that the actual nature of the offense of which she was convicted was unclear, and that it might have been a misdemeanor attempted theft. Most relevant to framing the issue before us, she contended that there are substantial differences between the legal systems of the United States and South Korea, that the South Korean system lacks safeguards afforded by the Constitution and laws in force in the United States, and that her conviction should not, therefore, be given conclusive effect under D.C. Bar R. XI, § 10.
Prior to the entry of a report and recommendation by the Board, the Circuit Court for Montgomery County, Maryland, held hearings on a disciplinary grievance against respondent, who is also a member of the Maryland Bar. The Maryland Attorney Grievance Commission initiated the proceeding, which the Maryland trial court handled as an original matter.
According to respondent's brief, Bar Counsel for Maryland's Attorney Grievance Commission initially requested that the South Korean conviction be admitted into evidence, but then withdrew that request because it did not meet requirements for admission into evidence. The written ruling of the Maryland court gives no indication that the court gave any weight to the fact that the South Korean court had convicted respondent. The Maryland Circuit Court ruled that Bar Counsel had not established, by clear and convincing evidence, that respondent had stolen monies on the flight from the United States to South Korea. The Maryland court concluded that "Wilde has not violated any of the provisions of the Maryland Rules of Professional Conduct alleged in the petition."
On the basis of the Maryland ruling, respondent moved that this court set aside its order of temporary suspension. Prior to any action by this court on that motion, the Board issued its report recommending that this court "reconsider its order suspending respondent under D.C. Bar R. XI, § 10 (c), based on her conviction of a serious crime and referring the conviction to the Board for a moral turpitude determination." It further recommended "that [the court] find that Respondent was not convicted of a crime within the meaning of D.C. Bar R. XI, § 10 (a)." The Board noted that, if the court agreed with its recommendation, Bar Counsel would be "free to make an assessment as to whether it wishes to proceed with this case in the ordinary course pursuant to D.C. Bar R. XI, § 8."
In reaching its recommendation, the Board did not proceed, as in the usual case, to determine the nature of the offense for which respondent was convicted in order to ascertain whether it involved a "serious crime" and a "crime of moral turpitude" under the relevant rule and statute. Instead, the Board first took note that its task was complicated by the fact that respondent was tried and convicted in South Korea rather than in the United States, and deemed it necessary to consider at the outset whether it had "jurisdiction under D.C. Bar R. XI, § 10." The Board concluded that the language of D.C. Bar R. XI, § 10 (a), which refers to convictions "in a District of Columbia court" or a "court outside the District of Columbia or in any federal court, " applies only to domestic state and federal courts. The Board also observed that in some foreign jurisdictions, "the smallest of infractions may be deemed felonies, " and that in others, "the rights provided to defendants accused of criminal conduct are so lacking that no reviewing body in the United States would find that the accused had a fair trial."
The Board rejected the proposition that the rule "could be construed to allow the Court and the Board to determine, on a case by case basis, which countries' procedures and laws are sufficient to allow for a finding of temporary suspension and moral turpitude per se." First, the Board stated, the language of the rule gives no indication that this court, in adopting the rule, intended such an approach. Second, argued the Board, determining which countries' procedures and laws are sufficient to merit our reliance for suspension and disbarment, and which are not, would be an extraordinarily difficult and subjective task. After this court received the Board's Report and Recommendation, it lifted the order that temporarily suspended respondent from the practice of law. 
B. Positions of the Parties Regarding Application of D.C. Code § 11-2503 (a) and D.C. Bar R. XI, § 10, to Foreign Convictions
The decision whether foreign convictions must automatically be given preclusive effect in our bar disciplinary system will depend, ultimately, on our determination of the meaning of the word "conviction" as it is used in D.C. Code § 11-2503 (a) and in D.C. Bar R. XI, § 10. Before reaching that determination, however, we will summarize the principal contentions of the parties regarding the consequences of the decision whether foreign convictions are, like convictions within the United States, to automatically be given conclusive effect under the above statute and rule. Until this time, it has not been necessary to resolve this question, as is evidenced by the fact that this is the first case to raise this issue in this jurisdiction. But Bar Counsel anticipates, we think reasonably, that the increased globalization of the practice of law, and the greatly increased number of lawyers licensed in the United States who practice in foreign countries, may well give rise to more such cases.
In support of the exceptions Bar Counsel filed to the report and recommendation of the Board, it argues that the proper policy is to apply § 10 to foreign convictions. It argues that to do otherwise would frustrate the purposes of attorney discipline, and give a "free pass" to attorneys convicted of crimes in other countries. Bar Counsel also states that failure to recognize convictions entered in foreign courts would run counter to D.C. Bar R. XI, § 2 (a), which states that "[t]he license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court."
Bar Counsel expresses concern that if convictions in foreign countries are not deemed within the sweep of § 10, it would be placed in the position of having to bring an original proceeding based upon the attorney's behavior that led to conviction. It contends that "to establish the misconduct would be difficult, if not impossible, in almost all cases." In particular, Bar Counsel notes the twenty-five-mile limit on the reach of subpoenas it can use, cites limitations on its use of depositions, and adds that it would be challenging enough to bring an original proceeding based, for example, upon a criminal offense in nearby Baltimore, and such difficulties would be multiplied exponentially in the case of a crime committed outside the United States.
The Board contends that Bar Counsel is indeed able to bring an original action based on foreign criminal conduct, and in fact has considerable subpoena power, not only locally, pursuant to D.C. Bar R. XI, § 18 (f),  but also in other jurisdictions pursuant to the rules of those jurisdictions. Bar Counsel can also seek a temporary suspension under D.C. Bar R. XI, § 3 (c), upon a showing by affidavit that the attorney poses a substantial threat of serious harm to the public. The Board also notes that treaties and executive agreements may facilitate the taking of testimony of United States citizens abroad and that liberal standards of admissibility of evidence can make pursuit of an original action more feasible.
The Board emphasizes a practical problem different from the problems Bar Counsel would face in bringing an original proceeding. In support of its position that foreign convictions should not be viewed as covered by § 10, the Board expresses its concern at the prospect of having to decide, on a case-by-case basis, whether the legal system of a given ...