Washington Lawyer

Bar Counsel: The Perils of Misdemeanors: Serious Crimes and Moral Turpitude

By Joyce E. Peters

barcounsel Over the past 10 years the Office of Bar Counsel unfortunately has had to initiate disciplinary action in about 11 or 12 cases each year against lawyers convicted of criminal offenses. This is approximately 2 to 3 percent of the workload of the Office of Bar Counsel. I say unfortunately not because we feel sorry for the lawyer or dislike handling these cases, but because we are disappointed that some lawyers, despite their training to uphold and enforce the law, fail. The most common crimes committed by lawyers involve theft, fraud (typically mail or wire fraud), and bribery.

Many of these crimes result in felony convictions. Sometimes the lawyer negotiates a plea to a lesser included offense and pleads guilty to a misdemeanor. In this situation, however, the disciplinary consequences for the lawyer can still be quite serious. Even with a misdemeanor, disciplinary authorities must determine whether the misdemeanor is a serious crime, whether it involves moral turpitude on its facts, and depending upon the answers to those questions, what sanction is appropriate. In the final analysis, the facts and circumstances of the misdemeanor offense, rather than its label, will determine how severe the sanction is.

Rule XI, § 10, of the Rules Governing the District of Columbia Bar deals with disciplinary proceedings based upon conviction of a crime. Pursuant to Rule XI, § 10(a), lawyers licensed in the District of Columbia are required to “file with [the] Court and the Board, within ten days from the date of such finding [of guilty] or plea [of nolo contendere], a certified copy of the court record or docket entry of the finding or plea.” Similarly, if Bar Counsel learns of the conviction of an attorney, Bar Counsel is required to “promptly obtain a certified copy of the court record or docket entry of the finding or plea and transmit it to [the] Court and to the Board.” Significantly, it is the conviction that triggers these reporting requirements, not sentencing. As a matter of practice, Bar Counsel will often file evidence of a conviction or plea prior to sentencing.

After this filing is made, the court examines the certified court record to determine whether the attorney should be immediately suspended pending disposition of the matter. The question for the court is whether the plea or conviction involves a serious crime. The distinction between a felony and a misdemeanor becomes important at this point. Rule XI, § 10(b), defines which crimes are serious:

The term “serious crime” shall include (1) any felony, and (2) any other crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a “serious crime.”
     If a crime is a serious crime as defined in section 10(b), Rule XI, § 10(c), provides that “the Court shall enter an order immediately suspending the attorney, notwithstanding the pendency of an appeal. . . .” Thus, if the crime qualifies as a serious crime, the attorney is suspended immediately and the temporary suspension continues until the disciplinary matter is resolved.1

Unlike a felony, however, that always results in an immediate suspension, a misdemeanor is not captured within the definition of serious crime unless it includes one of the elements listed in the second part of the definition. Some of these elements, such as improper conduct as an attorney or interference with the administration of justice, may require judicial interpretation. Other elements, such as bribery, extortion, or theft, are more concrete and may be explicitly included in the crime’s definition. In every case Bar Counsel recommends to the court whether the elements of the particular offense meet the serious crime requirements of Rule XI, § 10(b).

If the crime is found to be a serious crime, causing the attorney to be immediately suspended, the court refers the case to the Board on Professional Responsibility, and the board initiates a formal proceeding “to determine if the offense involves moral turpitude within the meaning of Section 11-2503(a) of the District of Columbia Code. . . .”2 Section 11-2503(a) (2001) provides in part:

When a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude, and a certified copy of the conviction is presented to the court, the court shall, pending final determination of an appeal from the conviction, suspend the member of the bar from
practice. . . . If a final judgment of conviction 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.
     To assist the board in determining whether an offense involves moral turpitude, the court adopted the dictionary definitions of moral turpitude in In re Colson,3 stating:
The term “moral turpitude” has less than a finite definition. We therefore set out a model to assist The Board. . . . If the crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind. The definition of “moral turpitude” given in 2 Bouv. Law Dictionary . . . is as follows:
An act of 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.
And Black’s Law Dictionary . . . adds that moral turpitude is “[c]onduct contrary to justice, honesty, modesty, or good morals.” These are precisely the definitions which have been used by the courts in defining “moral turpitude” in disbarment proceedings.
     When a crime involves moral turpitude, section 11-2503(a) mandates disbarment. The moral turpitude finding that results in automatic disbarment under the statute, however, may either be per se or be made after a review of the facts surrounding the offense. How is this done?

The board’s moral turpitude review is done in two stages. First, the board reviews the elements of the offense without regard to the underlying facts to determine whether the elements needed to prove the crime, by themselves, establish the existence of moral turpitude. If the answer is yes and the court agrees, the moral turpitude is considered to be per se.4 This means that regardless of the facts, if an attorney is convicted of that offense, the crime necessarily involves moral turpitude. The court has identified a number of crimes for which conviction will result in automatic disbarment without any consideration of the surrounding facts. Some of the crimes that the court has found to involve moral turpitude per se are mail fraud,5 bank fraud,6 wire fraud,7 perjury,8 espionage-related offenses,9 bribery,10 obstruction of justice,11 drug-trafficking offenses,12 and conspiracy to commit one of the above crimes or any other crime involving moral turpitude per se.13

If, however, the board concludes that the offense does not involve moral turpitude per se, it will refer the case to a hearing committee to review the facts and circumstances to determine if the circumstances of the crime involve moral turpitude. It is not uncommon for a lawyer to be convicted of an offense that does not involve moral turpitude per se, yet be disbarred based on a finding of moral turpitude after a hearing on the facts. This is exactly what may happen in the case of a misdemeanor conviction. The court has declared that “no conviction of a misdemeanor may be deemed a conviction of a crime involving moral turpitude per se, even though that misdemeanor may be properly characterized as a ‘serious crime,’ . . .”14

If the court does not find the crime to be serious, the case is referred to Bar Counsel for investigation and proceedings under Rule XI, § 8, the generic authority empowering Bar Counsel to investigate and prosecute. The case then goes forward on any charges that Bar Counsel may initiate using normal procedures.

In a case involving a nonserious criminal conviction, it is likely that Bar Counsel would charge a violation Rule 8.4(b) of the D.C. Rules of Professional Conduct, as “[i]t is professional misconduct for a lawyer to . . . [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” If the conviction involves dishonesty or interference with the administration of justice, Bar Counsel may also allege violations of Rule 8.4(c) or 8.4(d) or other appropriate rule violations. And Bar Counsel may charge that the conviction involves moral turpitude mandating disbarment. This charge would then require the hearing committee to consider the issue of moral turpitude along with any other charges when it conducts its hearing.

In fact, this is exactly what occurred in In re Bewig,15 a case involving a guilty plea to the misdemeanor offense of improper sexual contact, in violation of D.C. Code § 22-3006 (2001). The plea was to a misdemeanor. The court concluded that the conviction did not involve a serious crime. Nonetheless, Bar Counsel charged a violation of Rule 8.4(b) because of the criminal conviction and charged that the facts involved moral turpitude mandating disbarment pursuant to D.C. Code § 11-2503(a). A hearing was held on the charges before a hearing committee. Upon review the board found a violation of Rule 8.4(b) and found moral turpitude on the facts. The board then recommended disbarment. The court adopted the board’s recommendation and disbarred the attorney. Although the conviction formed the predicate for the violation of Rule 8.4(b) by showing that the attorney had committed a criminal act, the underlying conduct formed the predicate for the finding of moral turpitude that led to the attorney’s mandatory disbarment. In Bewig it was not just the elements or nature of the offense, but rather how the offense occurred, that led to the moral turpitude finding and disbarment.

The lessons here are clear. All felony convictions, as serious crimes, will lead to an immediate temporary suspension. Some felony convictions will end a legal career. Pleading guilty to a misdemeanor rather than a felony might avoid an initial temporary suspension but still could result in serious discipline or even disbarment. Any criminal conduct (regardless of whether it is related to the practice of law) will have serious disciplinary consequences, in addition to whatever criminal penalty results. The outcome, particularly if it involves a lengthy suspension or disbarment, can be truly unfortunate.

Notes

  1. Rule XI, § 10(c), provides that the court may set aside a temporary suspension when the attorney shows good cause and the court finds that “it appears in the interest of justice to do so.” For example, this provision could be used in a case in which the conviction has been set aside, but it is not often used. As a result, a temporary suspension normally continues for a significant period of time.
  2. Board Rule 10.1 (2002).
  3. 412 A.2d 1160, 1167–68 (D.C. 1979) (en banc) (citations omitted).
  4. The court always reviews de novo any board recommendation of moral turpitude. As the court has pointed out, “[T]he ultimate issue of moral tupitude is one of law rather than of fact.” In re Tidwell, 831 A.2d 953, 957 (D.C. 2003) (quoting In re Kerr, 611 A.2d 551, 553 (D.C. 1992) (citing In re Shillaire, 549 A.2d 336, 343 (D.C. 1988))).
  5. In re Firestone, 824 A.2d 47 (D.C. 2003); In re Dunbar, 810 A.2d 917 (D.C. 2002).
  6. In re Kelly, 816 A.2d 52 (D.C. 2003); In re Saul, 671 A.2d 461 (D.C. 1996).
  7. In re Ferber, 703 A.2d 142 (D.C. 1997).
  8. In re Meisnere, 471 A.2d 269 (D.C. 1984).
  9. In re Squillacote, 790 A.2d 514 (D.C. 2002).
  10. In re Tucker, 766 A.2d 510 (D.C. 2000); In re Glover-Tonwe, 626 A.2d 1387 (D.C. 1993).
  11. In re Colson, 412 A.2d at 1165.
  12. In re Dechowitz, 741 A.2d 1061 (D.C. 1999).
  13. In re Lobar, 632 A.2d 110 (D.C. 1993).
  14. In re McBride, 602 A.2d 626, 629 (D.C. 1992) (en banc).
  15. 791 A.2d 908 (D.C. 2002).

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Bruce D. Blum. Bar No. 418766. February 26, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose identical reciprocal discipline and disbar Blum. The Maryland Court of Appeals disbarred Blum for, inter alia, engaging in a repeated pattern of dishonesty and lies to his client, successor counsel, Bar Counsel, a disciplinary inquiry panel, and a circuit court judge in order to conceal his failure to refund his former client $720, in violation of Maryland Rules of Professional Conduct 1.15(a), 3.3(a)(1), 3.3(a)(4), 3.4(a), 3.4(b), 8.1(a), 8.1(b), 8.4(c), and 8.4(d); Maryland Rule 16-609; and Maryland Code § 10-306.

In re Robert E. Cappell. Bar No. 321265. March 25, 2004. The board found that Cappell engaged in intentional misappropriation when he failed to pay promptly monies that had been assigned to medical providers by two clients and instead used those funds to pay personal and business expenses, in violation of Rules 1.15(a) and 1.15(b). Applying the Kersey doctrine, the board recommends that the court disbar Cappell, but stay the sanction and place Cappell on probation for three years, subject to his not engaging in any further misconduct, continuing to obtain regular treatment from a psychiatrist, practicing under the supervision of a financial practice monitor, and submitting quarterly reports from his psychiatrist to the board and Bar Counsel. If Cappell fails to adhere to medical advice or violates any term of his probation or any Rule of Professional Conduct, he will be required to show cause why his probation should not be revoked and the sanction of disbarment imposed. If Cappell associates himself with another firm on a full-time basis, so that a financial monitor is no longer warranted, he may file a motion with the board to amend the terms of his probation.

In re Rozan E. Cater. Bar No. 420942. March 5, 2004. The board recommends that the court suspend Cater for 90 days with fitness, to begin when Cater’s suspension from an unrelated matter terminates. The board further recommends that Cater’s reinstatement be conditioned upon her demonstrating full compliance with Bar Counsel’s requests for information in the unrelated matter. The board found violations of Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3), by Cater’s failures to respond to inquiries of Bar Counsel and to obey orders issued by the board in four separate matters.

In re Landon G. Dowdey. Bar No. 89003. March 22, 2004. The board recommends that the court disbar Dowdey. Dowdey was convicted in the United States District Court for the District of Columbia of two counts of concealment of a material fact, in violation of 18 U.S.C. § 1001, and two counts of theft of public monies, in violation of 18 U.S.C. § 641. The board concluded that Dowdey’s felony conviction of 18 U.S.C. § 641 involved moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

In re James G. Gore Jr. Bar No. 427012. March 9, 2004. The board recommends that the court disbar Gore. Gore was convicted in the Superior Court for the District of Columbia on two counts of nonwillful failure to file sales taxes, in violation of D.C. Code § 47-2028(a) (1997 repl.). The board found that Gore’s conduct violated Rules 8.4(b) and 8.4(c).

In re John C. Hardwick Jr. Bar No. 452174. February 23, 2004. In a reciprocal matter from Maryland, the board recommends that the court indefinitely suspend Hardwick, with the right to apply for reinstatement after he is reinstated in Maryland or after five years, whichever occurs first. If Hardwick is summarily reinstated in Maryland either without objection from Maryland Bar Counsel or without a hearing, the board recommends that he may seek vacatur of the fitness requirement pursuant to the guidelines set forth in Board Rule 8.7. The Maryland Court of Appeals indefinitely suspended Hardwick based on a Joint Petition by Consent for his alleged false representations to his firm and to clients that he had performed services on their behalf, when he had not. The Attorney Grievance Commission of Maryland had filed charges against Hardwick alleging violations of Maryland Rules of Professional Conduct 1.3, 1.4, 8.4(c), and 8.4(d).

In re Steven Y. Lee. Bar No. 439458. March 15, 2004. The board recommends that the court accept Lee’s consent to
disbarment.

In re Charles F. Loyd Jr. Bar No. 411773. March 18, 2004. In a reciprocal matter from the United States Court of Appeals for the Tenth Circuit, the board recommends that the court impose nonidentical discipline and publicly censure Loyd. The Tenth Circuit disbarred Loyd for failing to respond to a disciplinary order to show cause why he should not be disbarred based on his repeated failures to respond to earlier court orders, together with his failure to pay a court-imposed $150 fine. The Tenth Circuit’s show-cause orders were prompted by Loyd’s failure, as appointed counsel in a criminal appeal, to file the opening brief on his client’s behalf. The board found that Loyd’s conduct before the Tenth Circuit violated Rules 1.3(a) and 8.4(d).

In re Steven E. Mirsky. Bar No. 947531. March 15, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose nonidentical discipline and suspend Mirsky for six months. The Maryland Court of Appeals suspended Mirsky for 90 days based on a Joint Petition by Consent for neglecting his client’s case, failing to keep his unearned retainer in an escrow account, refunding a retainer fee with a check that was dishonored by the bank for unsufficient funds, and using funds belonging to another client to cover the refund check.

In re Alan F. Post. Bar No. 172809. March 5, 2004. The board recommends that the court accept Post’s consent to disbarment.

In re Robert D. Powell. Bar No. 10215. March 11, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose identical reciprocal discipline and disbar Powell. The Maryland Court of Appeals disbarred Powell for commingling, in violation of Maryland Rule of Professional Conduct (MRPC) 1.15(a) and Maryland Rule 16-607; conduct involving dishonesty, fraud, deceit, and/or misrepresentation, in violation of MRPC 8.4(c); conduct prejudicial to the administration of justice, in violation of MRPC 8.4(d); and knowingly making false representations of material facts and failing to respond timely to demands from the Maryland Bar Counsel, in violation of MRPC 8.1(a) and 8.1(b).

In re David Roberson. Bar No. 935114. March 19, 2004. In a reciprocal matter from Georgia, the board recommends that the court impose identical reciprocal discipline and disbar Roberson, with reinstatement conditioned upon his compliance with Georgia’s restitution requirement. The Supreme Court of Georgia disbarred Roberson for engaging in professional misconduct involving dishonesty, fraud, deceit, or willful misrepresentation; failing to promptly deliver to the client the client’s portion of the settlement proceeds; failing to maintain complete records of client funds and to render appropriate accounts to his client regarding those funds; failing to account for trust property and money held in a fiduciary capacity; willful abandonment of a client or willful disregard of a legal matter entrusted to the lawyer; engaging in conflicts of interest (personal financial interest and multiple employment); charging an excessive fee; and failing to provide a written statement in a contingent fee matter regarding the outcome, the amount of each attorney’s fee, the amount of the remittance to the client, and the method by which the remittances were determined. The board found that the misconduct in Georgia is equivalent to violations of Rules 1.3, 1.5(a), 1.5(c), 1.7(b)(2), 1.7(b)(4), 1.15(a), 1.15(b), and 8.4(c) and includes intentional misappropriation.

In re Sol Sheinbein. Bar. No. 88369. February 19, 2004. The board recommends that the court disbar Sheinbein by consent.

In re Gerald Susman. Bar No. 12799. March 23, 2004. The board recommends that the court disbar Susman. Susman was convicted in the United States District Court for the District of New Jersey of making false statements in relation to documents required by the Employee Retirement Income Security Act, in violation of 18 U.S.C. §§ 2 and 1027, crimes that the board found involved moral turpitude on the facts, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Margaret A. Beller. Bar No. 703. February 5, 2004. The court suspended Beller for 120 days and conditioned her reinstatement on full compliance with Bar Counsel’s requests for information and proof of fitness to practice law. In three separate Bar Counsel investigations, Beller failed to respond to requests for information from Bar Counsel and the board, in violation of Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Timothy Brown. Bar No. 366743. March 25, 2004. The court granted Brown’s petition for reinstatement from his disability suspension with the following conditions: (1) continued consultation with the District of Columbia Bar’s Lawyer Counseling Program and participation in Alcoholics Anonymous, including semiannual reports to Bar Counsel and the board; (2) supervision by a financial monitor for one year, with quarterly meetings to formulate and execute a plan to meet his financial obligations, including, inter alia, money owed to the Clients’ Security Fund and for child support and back taxes, with quarterly reports to the board and to Bar Counsel; and (3) within one year of his reinstatement, completion of continuing legal education courses in civil litigation, probate and estate, business organization, and legal ethics and law practice management. The court also directed Bar Counsel to reactivate three matters held in abeyance during the period of Brown’s suspension for disability.

In re J. Andrew Chopivsky. Bar No. 349415. February 19, 2004. The court disbarred Chopivsky by consent.

In re Elmer Douglas Ellis. Bar No. 423276. February 12, 2004. In a reciprocal matter from the United States Court Appeals for the Eleventh Circuit, the court imposed nonidentical discipline and suspended Ellis for 30 days, with 14 days’ credit for the period of his temporary suspension after he filed his affidavit required by D.C. Bar R. XI, § 14(g). Initially, the Eleventh Circuit indefinitely suspended Ellis, who had been admitted there pro hac vice, because he failed to respond to a show-cause order why he should not be disciplined for dilatory conduct in an appeal before the court. Thereafter the Eleventh Circuit lifted the indefinite suspension and prohibited Ellis from practicing law before it, pending the outcome of the District of Columbia disciplinary matter and the production of a certificate of good standing from the District of Columbia Bar. Ellis’s misconduct before the Eleventh Circuit violated Rules 1.1(a), 1.1(b), 1.3, and 8.4(d).

In re Greg S. Friedman. Bar No. 926345. March 4, 2004. In a reciprocal matter from Maryland, the court imposed identical reciprocal discipline and suspended Friedman for six months, nunc pro tunc to May 5, 2003, the date Friedman filed the affidavit required by D.C. Bar R. XI, § 14(g). The Maryland Court of Appeals suspended Friedman for six months based on Friedman’s acknowledgment that he misrepresented to the Maryland Circuit Court, opposing counsel, and Maryland Bar Counsel that a subpoena had been improvidently prepared and issued by a law clerk in his office, when in truth it had been prepared and issued by his client.

In re Richard H. Laibstain. Bar No. 382252. February 12, 2004. In a reciprocal matter from Virginia, the court imposed functionally equivalent discipline and disbarred Laibstain. The Virginia State Bar Disciplinary Board had revoked Laibstain’s license after he admitted a number of ethical violations, including repeated intentional misappropriation of client funds.

In re William D. Patkus. Bar No. 955583. February 12, 2004. The court denied Patkus’s petition for reinstatement.

In re Sol Sheinbein. Bar No. 88369. March 11, 2004. The court disbarred Sheinbein by consent.

In re Nathaniel Sims. Bar No. 444853. March 11, 2004. The court remanded this matter to the board with instructions to remand it to the hearing committee for a determination on the existing record whether Sims was convicted of an offense involving moral turpitude, the court having found that a nonserious misdemeanor can involve moral turpitude on the facts.

In re Richard C. Spitzer. Bar No. 185819. March 25, 2004. In a reciprocal matter from Maryland, the court imposed nonidentical discipline and suspended Spitzer for 30 days, with reinstatement conditioned upon his demonstrating fitness and documenting his payment of a $1,500 refund to his former client in the Maryland matter. The Maryland Court of Appeals disbarred Spitzer for disciplinary violations involving neglect of client matters and conduct prejudicial to the administration of justice. The board concluded that Spitzer’s conduct in Maryland violated Rules 1.3(a), 1.4(a), and 1.16(d).

In re Joel Steinberg. Bar No. 235689. February 12, 2004. In a reciprocal matter from Virginia, the court imposed functionally equivalent discipline and disbarred Steinberg. The Virginia State Bar Disciplinary Board accepted Steinberg’s resignation while several serious ethical charges were pending against him and revoked his license. Under Virginia law then in effect, the charges against Steinberg, which included misappropriation of client funds, were deemed admitted.

Informal Admonitions Issued by the Office of Bar Counsel
In re Samuel C. Bailey Jr. Bar No. 384974. February 6, 2004. Bar Counsel issued Bailey an informal admonition for violating Rule 8.4(d) by failing to comply with the Federal Rules of Appellate Procedure and the Circuit Court Rules with regard to deadlines and responsive pleadings as directed by the court, resulting in the dismissal of his client’s appeal.

In re Charles F. Daum. Bar No. 952481. February 24, 2004. Bar Counsel issued Daum an informal admonition for violating Rule 1.6 by improperly revealing a confidence or secret of his client when he moved to withdraw from the client’s representation.

In re Leonard C. Pederson. Bar No. 931527. March 11, 2004. Bar Counsel issued Pederson an informal admonition for violating Rule 1.15(c) by failing to protect a third-party medical provider’s disputed entrusted funds.

In re Harry Tun. Bar No. 416262. February 24, 2004. Bar Counsel issued Tun an informal admonition for violating Rules 1.15(a) and 1.16(d) by failing to retain a copy of his client’s file and records reflecting his handling of her settlement funds for the required five-year period.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.