The University of the District of Columbia Law ... - UDC Law Review

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WHEN LA WYERS BREAK THE LAW 13The attorney's case is then referred to the Board on Professional Responsibility.As is discussed in the next section, the Board proceeds on either one of twocourses. If the crime the attorney has been convicted of has previously beenadjudicated by the Court of Appeals to be one of moral turpitude, the Board'sonly function is to determine whether "the certificate of conviction ... establishesthat the attorney, in fact, has been convicted of the crime charged.,,27 If the particularcrime has not been previously considered by the Court, the attorney andBar Counsel can brief and argue the issue of moral turpitude before the Board. 28However, the attorney is not free to "retry his criminal case before [t]heBoard. ,,29 The focus is not on the specific facts of the attorney's case but, rather,on the type of crime committed. 3D The attorney cannot challenge the facts thatled to conviction; he can only address the question of whether the crime itself isone of moral turpitude.Both the attorney and Bar Counsel can challenge the Board's finding of moralturpitude, as the Court of Appeals has the final say on attorney discipline in theDistrict. 31 Once the Court of Appeals has ruled definitively on whether a particularcrime constitutes moral turpitude, that decision cannot be revisited except onen bane review. 32An attorney's "guilty plea represents both a conviction of a crime and an admissionby the accused of the underlying facts. ,,33 An attorney's Alford 34 pleawill not save him from automatic disbarment if the crime is one of moral turpitude.35 An attorney who has been convicted of a crime cannot collaterally challengethat conviction in discipline proceedings. 36C. Moral Turpitude Per Se and "On the Facts"In In re Colson,37 the Court of Appeals defined the general, substantive structurefor handling lawyer crimes. In Colson, a White House attorney pled guiltyto obstruction of justice. The Court of Appeals concluded that obstruction ofjustice was per se moral turpitude. Because the attorney was convicted of a crimeof moral turpitude, his disbarment was automatic. 3827 In re Colson, 412 A.2d 1160, 1165 (D.C. 1979).28 See id. at 1165.29 Id. at 1167.30 See infra Part II.C.31 See Laughlin, 474 F.2d at 444.32 See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).33 In re Wolff, 490 A.2d 1118, 1119 (D.C. 1985).34 North Carolina v. Alford, 400 U.S. 25 (1970) (guilty plea with assertion of factual innocence).35 See In re Untalan, 619 A.2d 978 (D.C. 1993).36 See Laughlin v. United States, 474 F.2d 444, 454 (D.C. Cir. 1972).37 Coison, 412 A.2d 1160.38 See id. at 1165.
14 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWMoral turpitude comes in two flavors: per se and on the facts. Both moralturpitude per se and moral turpitude on the facts require automatic disbarment.The difference is in the effect of the decision in a particular case on future cases.When moral turpitude has been found per se, the Court of Appeals decrees ina case 39 that conviction of that particular crime must always result in automaticdisbarment in every future case. For example, the Court may hold in In re A that"Crime 1," by virtue of its very nature, must always result in automatic disbarment.The next time a case comes along where Attorney B, for example, hasbeen charged with "Crime 1," he will automatically be disbarred, without thebenefit of a hearing to determine whether the crime is one of moral turpitude. Inre A controls the decision in In re B. "The major difference between the pre- andpost-Colson decisions is not the court's ability to apply the appropriate sanction,but the court's discretion in weighing the facts and circumstances of each case.The Court, by its own hand, has, in effect, abdicated this responsibility.,,4oHowever, consider a case, In re C, in which the Court of Appeals concludesthat "Crime 2" does not involve moral turpitude per se (that is, the commission of"Crime 2" does not always involve moral turpitude). However, neither AttorneyC nor any others that follow are necessarily off the disciplinary hook. The Boardand Court can still conclude that the crime the attorney committed involvedmoral turpitude on the facts. If so, the attorney is still automatically disbarred.The difference is that Attorney C, Attorney D, and any others that follow are allentitled to individual hearings to determine moral turpitude.Even if a crime-whether per se or on the facts-is not found to involve moralturpitude, the attorney can still be disciplined pursuant to Rule 8.4 of the D.C.Rules of Professional Conduct, which provides in pertinent part:It is professional misconduct for a lawyer to: . . .(b) Commit a criminal act that reflects adversely on the lawyer's honesty,trustworthiness, or fitness as a lawyer in other respects;(c) Engage in conduct involving dishonesty, fraud, deceit, ormisrepresentation;Thus, Bar Counsel gets three bites at the disbarment apple. He can argue tothe Board and the Court of Appeals that:1. the offense which the attorney committed involves moral turpitude perse, requiring automatic disbarment;2. the facts of the attorney's specific case involve moral turpitude, requiringautomatic disbarment; or39 The decision of a panel can be reviewed by the Court en bane. See M.A.P. v. Ryan, 285 A.2d310, 312 (D.C. 1971).40 Michael Cline, D.C. Code Section 11-2503(a): Disbarment or Banishment?, 32 CATH. U. L.REV. 1038, 1047 (1983).
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