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In re Rohde

Court of Appeals of The District of Columbia

August 30, 2018

In re Wayne R. Rohde, Respondent

          Argued October 11, 2016

          A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 421213)

         On Report and Recommendation of the Board on Professional Responsibility (BDN-D347-05)

          Decided August 30, 2018) Timothy J. Simeone, with whom Thomas B. Mason and John R. Grimm were on the brief, for respondent.

          Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel at the time the brief was filed, Jelani Lowery, Senior Staff Attorney, and Joseph N. Bowman, Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.

          Before Easterly and McLeese, Associate Judges, and Washington, Senior Judge, [*]

          OPINION

          Easterly, Associate Judge

         Respondent, Wayne R. Rohde, was convicted over a decade ago in Virginia of "leaving the scene of an accident, "[1] a felony. The Board on Professional Responsibility ("the Board") has determined that Mr. Rohde committed both a "serious crime," under D.C. Bar R. XI section 10 (b) and violated Rule 8.4 (b) of the Rules of Professional Conduct by committing "a criminal act that reflects adversely on [his] . . . fitness as a lawyer." As a sanction, the Board recommends a two-year suspension from the practice of law, with a fitness requirement, stayed in favor of three years of probation with conditions. Mr. Rohde has not contested either the Board's assessment of his misconduct or its recommended sanction. Disciplinary Counsel, however, argues that the Board's recommended sanction is inadequate. Specifically, Disciplinary Counsel argues that because Mr. Rohde's crime involved moral turpitude, either per se or on the facts, Mr. Rohde must be disbarred per D.C. Code § 11-2503 (a) (2012 Repl.). Alternatively, Disciplinary Counsel argues that this court should disregard Mr. Rohde's Kersey[2] mitigation evidence (which it argues should not be considered in a disciplinary case based on a felony conviction) and exercise its discretion to disbar Mr. Rohde.

         This court employs three distinct analyses to evaluate a bar discipline case based on a criminal conviction. We begin with an element-focused inquiry to assess if the crime is one of moral turpitude per se. If it is not, we then refocus the inquiry to assess the facts and circumstances that fairly bear on the question of moral turpitude in the actual commission of the crime, such as motive or mental condition. If the crime is not one of moral turpitude, either per se or on the facts, we then conduct a comprehensive analysis of the totality of the circumstances, including any aggravating and mitigating factors, and exercise our discretion to impose a just sanction.

         Applying this rubric to Mr. Rohde's case, we conclude, based on an examination of the crime's elements, that his conviction under Virginia law for leaving the scene of an accident without complying with reporting requirements or rendering aid to the person whose car he hit does not meet the stringent test for moral turpitude per se. We further conclude that Mr. Rohde's offense was not one of moral turpitude on the facts, relying on the undisputed evidence that Mr. Rohde was in an alcoholic blackout during its commission and the credited expert testimony that he was unable to exercise appropriate judgment while in that condition. Lastly, we exercise our discretion as to the appropriate sanction. Considering the totality of the circumstances, we acknowledge the gravity of Mr. Rohde's conduct as well as his previous pattern of drinking and driving, but we also look to his powerful Kersey mitigation evidence (which we hold is properly considered in cases involving a felony conviction but not reflecting moral turpitude). Specifically, Mr. Rohde demonstrated that at the time he committed this crime he was suffering from alcoholism, that he subsequently sought treatment, and that he has now been in recovery for many years. In light of Mr. Rohde's rehabilitation and the distinct function of the disciplinary system not to punish but "to maintain the integrity of the [legal] profession . . . to protect the public and the courts, [and] to deter other attorneys from engaging in similar misconduct," In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc), we see no utility in disbarring or actively suspending Mr. Rodhe and thus adopt the Board's recommended sanction.

         I. Facts and Procedural History

         On October 20, 2004, Mr. Rohde went out drinking after work with friends. After consuming a large quantity of alcohol, he drove home to northern Virginia. On his way home, he collided head-on with another car. The other car was totaled and his car sustained significant front-end damage. The other driver, Ms. Banks, was severely injured. Mr. Rohde did not stop. Instead, he drove four or five blocks home on a flat front tire and an exposed rim, causing sparks to fly. He parked his car in the driveway of his house and went inside. He did not respond to the police who, having found Mr. Rohde's license plate at the scene, came to his house some time later that evening, banged on his door for 20-30 minutes, and towed his damaged car away. He did not respond to a phone call from his friend and neighbor, Joshua Horowitz.

         After speaking to Mr. Horowitz the following morning, Mr. Rohde contacted counsel and turned himself in to the police. He was indicted on one count of felony leaving the scene of an accident, Va. Code § 46.2-894 (2005), which requires

The driver of any vehicle involved in an accident in which a person is killed or injured or in which an attended vehicle or other attended property is damaged shall immediately stop. . . and report his name, address, driver's license number, and vehicle registration number forthwith to . . . law[] enforcement . . ., to the person struck and injured if such person appears to be capable of understanding and retaining the information, or to the driver or some other occupant of the vehicle collided with or to the custodian of other damaged property. The driver shall also render reasonable assistance to any person injured in such accident . . . .[3]

         He pled guilty to the indictment and timely reported his conviction to Disciplinary Counsel and this court.

         Mr. Rohde and Disciplinary Counsel initially litigated whether felony leaving the scene of an accident under Va. Code § 46.2-894 was a crime of moral turpitude per se, which would obviate an evidentiary hearing and require Mr. Rohde's automatic disbarment under D.C. Code § 11-2503 (a). The Board concluded that Mr. Rohde's conviction was not a crime of moral turpitude per se. The Board then ordered an evidentiary hearing to determine whether Mr. Rohde had committed a crime of moral turpitude on the facts. A hearing committee convened for three days spanning the end of 2007 and the beginning of 2008.

         At the hearing, Mr. Rohde testified that he had no memory of his collision with Ms. Banks or of leaving the scene and that, when he learned the next morning that he might have been in an accident, he was shocked and scared. Mr. Horowitz corroborated that Mr. Rohde "clearly had no idea" what had happened the previous evening; he "turned white" when he learned about the apparent accident; and he was "very agitated" as a result. Mr. Rohde's expert, Dr. Whitfield, and Disciplinary Counsel's expert, Dr. Blumberg, agreed that Mr. Rohde was blackout drunk. Their only disagreement concerned the significance of that fact.

         Dr. Whitfield, a medical doctor and psychotherapist who specializes in the evaluation and treatment of alcoholics, explained that during an alcoholic blackout, "working memory (short-term to long-term transfer and encoding), cognition (constructive thinking ability), and judgment" are lost. He further explained that the inability to create working memories would render an individual in a blacked out state "unable to react and decide in a rational and appropriate way to ordinary or extraordinary events." Dr. Whitfield opined that, because of Mr. Rohde's intoxication and blackout, he "was only able to retain awareness of his collision with Ms. Banks for seconds after it occurred" and "was not able to convert the new sensory input into a long term memory, or access the part of his long-term memory that would have informed a proper response to the collision." Dr. Blumberg, a forensic psychiatrist, agreed that an individual experiencing an alcoholic blackout would have difficulty forming memories and would experience memory loss. But he opined that the individual would still, in the moment, "know right from wrong." Consequently, Dr. Blumberg opined that Mr. Rohde "would have understood that it was wrong to leave the scene, even if he did not subsequently remember having such knowledge or awareness." The Hearing Committee credited Dr. Whitfield's testimony in its entirety and Dr. Blumberg's testimony insofar as it was consistent with Dr. Whitfield's. Although Disciplinary Counsel challenged these findings before the Board, the Board declined to disturb them, concluding that they were "well-supported [by] the record."

         Regarding his rehabilitation, Mr. Rohde presented evidence that he had completed a substance abuse program, regularly attended Alcoholics Anonymous (AA) meetings multiple times a week and had a sponsor, and participated in the Bar's Lawyer's Assistance Program (LAP). He also became active in AA as an organization, serving as his chapter's treasurer. He successfully completed his probationary sentence in his criminal case in 2007. Dr. Whitfield and Dr. Blumberg agreed that Mr. Rodhe was taking his rehabilitation seriously and had an excellent prognosis for recovery.

         Post-hearing briefing was completed in August 2008. In 2013, the Hearing Committee requested updated mitigation evidence because the evidence presented in 2008 had become "stale." In addition to the new evidence submitted by Mr. Rohde regarding his recovery, [4] the Hearing Committee considered evidence submitted by Disciplinary Counsel which it asserted reflected misrepresentations by Mr. Rohde about his still-pending disciplinary proceedings. The Hearing Committee issued its Report and Recommendation in January 2015. Disciplinary Counsel filed exceptions with the Board and moved for a formal proceeding. The Board held a hearing in April 2015 and issued its Report and Recommendation in August 2015. This appeal followed.

         II. Whether Mr. Rohde Committed a Crime of Moral Turpitude

         D.C. Code § 11-2503 (a) (2012 Repl.) provides that "[w]hen a member of the bar . . . is convicted of an offense involving moral turpitude, . . . [his] name . . . shall be struck from the roll of the members of the bar and such person shall thereafter cease to be a member." "Whether [respondent's] offense constitute[d] moral turpitude within the meaning of the statute is a question of law . . . committed to this court['s judgment]." In re Spiridon, 755 A.2d 463, 468 (D.C. 2000). This court has distinguished "between offenses which manifestly involve moral turpitude by virtue of their underlying elements, and those which do not." In re Colson, 412 A.2d 1160, 1164 (D.C. 1979). If an attorney's crime of conviction inherently involves moral turpitude-that is, moral turpitude per se-we have directed disbarment without more. But if an attorney's crime does not inherently involve moral turpitude, the attorney is entitled to an evidentiary hearing to determine whether the underlying conduct involved moral turpitude on the facts. See In re Allen, 27 A.3d 1178, 1183 (D.C. 2011).

         A. Moral Turpitude Per Se

         We first consider whether felony leaving the scene of an accident under Va. Code § 46.2-894 is a crime inherently "involving moral turpitude" within the meaning of D.C. Code § 11-2503 (a). Obviously, moral turpitude "does not exist merely because there has been a crime, [or] a violation of law." In re Shorter, 570 A.2d 760, 765 (D.C. 1990). Although "[i]n a sense, it is immoral to violate any law, even a traffic ordinance, . . . the words 'involving moral turpitude' clearly suggest something much more serious, for otherwise they are pure surplusage." Id. We determine whether a crime inherently involves moral turpitude by examining its elements. See In re Colson, 412 A.2d 1160, 1164 (D.C. 1979) (en banc). But, as we have acknowledged in previous cases, exactly what we are looking for "has not been defined with the utmost precision." In re Johnson, 48 A.3d 170, 172 (D.C. 2012); see also Colson 412 A.2d at 1167 (acknowledging that "moral turpitude has less than a finite definition"). As we summarized in In re Johnson,

We have said that a crime necessarily involves moral turpitude if the act denounced by the statute grievously offends the moral code of mankind and would do so even in the absence of a prohibitive statute; if it involves baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man; or if it entails conduct contrary to justice, honesty, modesty, or good morals. We have also looked to see if commission of the crime requires intentional dishonesty for personal gain. Finally, we have observed that part of the calculus in assessing whether a crime is one of moral turpitude per se is whether we can say that the least culpable offender under the terms of the statute necessarily engages in conduct involving moral turpitude-or whether the Board will want to err on the side of admitting evidence that goes to the moral implications of the particular respondents['] acts, as a way of determining whether his particular offense involved moral turpitude.

48 A.3d at 172-73 (internal citations and quotations omitted).

         Examples of criminal offenses that this court has concluded constitute crimes of moral turpitude per se include attempted murder, [5] child abuse, [6]obstruction of justice, [7] conspiracy to commit mail and wire fraud, [8] attempted extortion coupled with attempted witness and evidence tampering, [9] bribery, [10]forgery and grand larceny, [11] and espionage.[12] Were we to plot these offenses as points on a graph, we would see a cloud of crimes evincing moral turpitude. Though the borders distinguishing these crimes from other violations of criminal law may resist precise delineation, for the reasons that follow we are unpersuaded that a conviction for felony leaving the scene of an accident as defined by Va. Code § 46.2-894 falls within this cloud.

         We begin our analysis with Disciplinary Counsel's argument that "no one found guilty of a felony under § 46.2-894 would have had a morally weighty reason for leaving" the scene of an accident. But the question is whether the statute codifies a duty to stay, such that leaving would evince "baseness, vileness, or depravity." Johnson, 48 A.3d at 172. We cannot say it does. The statute does not distinguish between the person at fault and any other drivers "involved in an accident." Va. Code § 46.2-894. The statute encompasses accidents both "in which an attended vehicle or other attended property is damaged," and "in which a person is killed or injured." Id. The statute requires the crime to be prosecuted as a felony if property damage exceeds $1000 or a person is killed or injured but it does not set a threshold level of injury. Id. The statute does not distinguish between a failure to stop at all, a failure to provide complete information ("name, address, driver's license number, and vehicle registration number"), or a failure to provide information to all entities to whom disclosure is due. Id. Lastly, the statute does not distinguish between the failure to stop and the failure to provide "reasonable assistance."[13] The range of ways an individual might violate his or her statutory obligations, some obviously graver than others, [14] makes it impossible for us to conclude that the statute, in all applications, criminalizes conduct that "offends the generally accepted moral code of mankind," "involves baseness, vileness or depravity," or offends universal notions of "justice, honesty, or morality." In re Tidwell, 831 A.2d 953, 957 (D.C. 2003) (internal quotation marks omitted).

         Disciplinary Counsel also argues that a violation of the statute "show[s] an effort to conceal the driver's identity" and "deprives the State of evidence," in this case "about the condition of the car and the driver, including his blood alcohol level at the time of the crime." We disagree that the myriad ways a driver might violate the statute would support an inference in all cases of a purpose to conceal her identity; for example, a driver might provide her name and address and still violate the statute if she fails to provide her vehicle registration number. Moreover, we cannot say that the exclusive or even primary aim of the statute, which applies to leaving the scene of all manner of accidents, is to facilitate evidence collection for criminal prosecution. But even if it were, we disagree ...


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