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WHEN LAWYERS BREAK THE LAW153. the attorney should be disbarred or otherwise disciplined pursuant toRule 8.4. However, action under this rule does not guarantee automaticdisbarment. Only commission of a crime involving moral turpitude,whether per se or on the facts requires automatic disbarment.This approach is not without criticism. First, automatic disbarment raises concernsabout fairness to the attorney. It does not take into account mitigatingfactors, such as alcoholism,41 that may explain the attorney's behavior and explainwhy, because of changed circumstances, recidivism is not likely to occur.42However, as the Court has reminded the bar and the public on numerous occasions,the purpose of disciplinary proceedings is to protect society, not necessarilyto preserve the licensure "rights" of attorneys.43 The interests of lawyercriminalsis secondary to the interests of the public.Second, the binding effect of moral turpitude per se determinations, it could beargued, is an unfair use of stare decisis. If, in In re A, counsel for Attorney A didnot competently brief or argue the case against moral turpitude per se, that failureshould not be. imparted on future cases and attorneys. Similarly, a panel ofthe Court of Appeals could be unconsciously influenced by certain aggravatingand heinous facts and find moral turpitude per se not just on the statute, but alsoin consideration of the facts of the particular case.A related concern is that a finding of moral turpitude per se freezes the law inplace at a particular time. Apart from en banc reversal, which is rare, a finding ofmoral turpitude per se binds all future litigants. If the whole point of disciplinaryproceedings is to protect the public, should not the standard for attorney disbarmentbe able to adjust freely with public opinion?Finally, a determination of what is "moral turpitude" is a policymaking, legislativefunction. Should not the legislature (in the District of Columbia, it is Congress)decide these questions, rather than an unelected judiciary? Perhaps not.Courts traditionally have been the governmental bodies to oversee the lawyersthat practice before them. The statute vests some, but not all, discretion with theCourt of Appeals. Disbarment is not automatic for every crime, only those thatinvolve moral turpitude. Section 11-2S03(a) vests the Court of Appeals with the41 See infra Part IV.C.42 See In re Colson, 412 A.2d 1160, 1175 (D.C. 1979) (Harris, J., dissenting) ("I feel stronglyandI believe my view is shared by the great majority of persons who are knowledgeable in the field ofprofessional discipline - that the basic decisional responsibility for the sanction to be imposed in adisciplinary proceeding should rest upon the judges of a jurisdiction'S highest court, rather than uponthe members of a court-created disciplinary body.")See also Dhanda, supra note 8, at 727 ("By considering the nexus between a particular crime andan attorney's fitness to practice, the courts are better equipped to impose discipline that is appropriatefor an attorney's misconduct." ).43 See In re Wild, 361 A.2d 182, 186 (D.C. 1976) (Kern, J., concurring in part and dissenting inpart).
16 THE UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEWpower courts traditionally possess: applying and interpreting the law. The factthat a court's interpretation of the law in one case is binding on the next shouldnot be surprising. Stare decisis is at the heart of Anglo-American common law.Further, a lawyer-criminal has already received a full, thorough, and meaningfulhearing on the facts of his case: the trial of his criminal case. 44 The automaticdisbarment statute fits together perfectly with the command of Laughlin v.United States,45 a D.C. Circuit case, holding that an attorney cannot collaterallychallenge a conviction in disciplinary proceedings. 46 The principle emanatingfrom the courts is that an attorney gets one chance to test the government's evidence:at trial. In the interests of economy, it is not prudent or necessary to holda second hearing on the facts of the case. An attorney's conviction by proof attrial beyond a reasonable doubt or by plea ends any question of the attorney'sguilt.ll. SUBSTANTIVE FRAMEWORKThe question, then, of an lawyer-criminal's future in the profession comesdown to whether the crime of which he was convicted is one of moral turpitude.The statute, D.C. Code § 11-2503(a), is mandatory in its terms. The name of anattorney who has been convicted of a crime of moral turpitude "shall be struckfrom the roll of the members of the bar and such person shall thereafter cease tobe a member. ,,47A. Cases Deciding "Moral Turpitude"Before trying to synthesize the Court of Appeals' jurisprudence on the subject,I pause here to detail the crimes the Court has held to be and not to be crimes ofmoral turpitude. Nearly every single case to be decided by the Court of Appealson the subject has been found to have involved moral turpitude. Only a handfulof crimes have been found not to involve moral turpitude per se. Table 1 listsnearly all of the published decisions applying section 11-2503(a).Each decision is nearly identical. Each is usually short and conclusory. Mostare only a page or two long. Many rely and incorporate the Board's unpublishedorder in substitution of the Court's own analysis. Even in significant decisionsthat decide moral turpitude for eternity-those that find moral turpitude per setheCourt has rarely employed an analysis of more than a few sentences. This isnot surprising considering the elusiveness of the phrase "moral turpitude."In recent years, the opinions cite analogous cases more often. For example, inIn re Bateman, the Court of Appeals concluded that conspiracy to possess co-44 But see Dhanda, supra note 8, at 731.45 474 F.2d 444 (D.C. Cir. 1972).46 See id. at 454.47 D.C. CODE § 11-2503(a} (1981).
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