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

More documents

Recommendations

Info

WHEN LAWYERS BREAK THE LAW21contrary to the accepted and customary rule of right and duty betweenman and man. ,,693. "[c]onduct contrary to justice, honesty, modesty, or good morals.,,7oThe Court of Appeals, however, has rarely relied on or applied the above-citedthree-part test for moral turpitude, probably because the definitions are as unworkableas the term being defined.'lBased on an independent, post hoc analysis of the moral turpitude cases, thefollowing categories of crimes of moral turpitude emerge:721. MisdemeanorsIn 1992, the Court of Appeals restructured its moral turpitude analysis. In Inre McBride,'3 the Court of Appeals held that misdemeanors could never becrimes of moral turpitude per se.'4 "[N]o conviction of a misdemeanor may bedeemed a conviction of a crime involving moral turpitude per se, even thoughthat misdemeanor may be ... held to involve moral turpitude on the facts of thecase.,,75 In other words, an attorney convicted of a misdemeanor is always entitledto a hearing to determine whether moral turpitude exists on the facts of theparticular case. 76 If so, disbarment is still automatically required.The en banc Court in McBride made a distinction between felonies and misdemeanorsfor three reasons. First, the term "moral turpitude" by its plain termsinvolves a "revulsion of society.,,77 However, misdemeanors by definition areoffenses that society, through elected legislators, has determined to be less seriOUS. 78 Misdemeanors do not carry the same "revulsion" as felonies. Second, exceptfor In re Willcher,'9 no other case had found moral turpitude per se for amisdemeanor. so Thus, there had been in place already a de facto felony-misdemeanorbright-line rule. Finally, the Court noted that "intent to defraud," whichis a key phrase that the Court had relied on in the past in finding moral turpitude,69 Id. (quoting 2 Bouv. LAW DlcrIONARY 2247 (Rawles' 3d. Rev.».70 Id. (quoting BLACK'S LAW DlcrIONARY 1160 (4th ed. 1951».71 But see Jordan v. DeGeorge, 341 U.S. 223, 232 (1951) (holding that phrase "crime involvingmoral turpitude" is not void for vagueness).72 One commentator has noted, "Moral turpitude is best defined by example." Capel-Galiber.supra note 67, at 313.73 In re McBride, 602 A.2d 626 (D.C. 1992) (en banc).74 See ide at 629.75 Id.76 See ide at 635.77 Id. at 632.78 See BLACK'S LAW DlcrIONARY 999 (6th ed. 1990).79 In re Willcher, 447 A.2d 1198 (D.C. 1982).80 See McBride, 602 A.2d at 633.
22 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWhad a specific meaning under the criminal law that was not directly translatable to"moral turpitude. ,,812. Theft and Fraud OffensesAs previously mentioned, the Court of Appeals has sometimes latched ontolanguage in certain criminal statutes that require "intent to defraud" as an elementof a crime. In In re Meisnere,82 for example, an attorney was convicted ofconspiracy to defraud the Internal Revenue Service. The Court of Appeals summarilyaffirmed the Board's finding that conspiracy to defraud the IRS was acrime of moral turpitude per se because conviction always required proof that thedefendant intended to defraud. "Criminal offenses involving theft and fraud inherentlyinvolve moral turpitude.,,83 In this sense, the Court has almost adopteda per se rule within a per se rule: Crimes involving an intent to defraud are almostper se crimes of moral turpitude per se.In contrast, however, in In re Shorter,84 the Court of Appeals rejected argumentsfor a finding of moral turpitude per se for tax evasion. Shorter concludedthat tax evasion is not as "evil" as other offenses 85 "While this 'evil' ... impairsgovernmental objects, its motivation is mere selfishness without any further abhorrentintention, such as would characterize a calculated attempt to harm othersfor the sake of the harm. ,,86 The Court also noted that from time-to-time thenumber of people who have sought to evade paying taxes is "legion.,,87In other cases, however, the Court of Appeals has found moral turpitude perse when the offender unlawfully profits, for selfish gain, at the expense of others.For example, in In re Hopmayer,88 an attorney was convicted of theft by failure tomake required disposition of property received. The Court found moral turpitudeper se because the statute requires intentional dishonesty for personal gain.This stands in stark contrast to the tax evasion line of cases, where it was heldthat mere selfishness was not enough to justify automatic disbarment for moralturpitude. Perhaps a distinction can be made between the cases in deceptiontowards the government (in the tax evasion cases) versus deception to clients andinnocent citizens. This characterization would also help to explain why other actsinvolving defrauding innocents, such as embezzlement, mail fraud, and wirefraud, have always been found to be moral turpitude per se.81 See id.82 In re Meisnere, 471 A.2d 269 (D.C. 1984).83 In re Caplan, 691 A.2d 1152 (D.C. 1997).84 In re Shorter, 570 A.2d 760 (D.C. 1990).85 Id. at 766.86 Id.87 Id.88 In re Hopmayer, 602 A.2d 655 (D.C. 1992), affd, 625 A.2d 290 (D.C. 1993).
Page 1: The University of theDistrict of Co
Page 5 and 6: KENNETH SEALLS, B.A., J.D., Adjunct
Page 7 and 8: The University ofThe District of Co
Page 9: 2 THE UNIVERSITY OF THE DISTRlcr OF
Page 12 and 13: 6 THE UNIVERSITY OF THE DISTRICf OF
Page 14: WHEN LAWYERS BREAK THE LAW: HOW THE
Page 17 and 18: 12 THE UNIVERSITY OF THE DISTRICf O
Page 21 and 22: 16 THE UNIVERSITY OF THE DISTRICI'
Page 25: 20 THE UNIVERSITY OF THE DISTRlcr O
Page 29 and 30: 24 THE UNIVERSITY OF TIlE DISTRlcr
Page 35 and 36: 30 THE UNIVERSITY OF THE DISTRIcr O
Page 37 and 38: CAPITAL PUNISHMENT: 21ST CENTURY LY
Page 57 and 58: 54 THE UNIVERSITY OF THE DISTRICT O
Page 65 and 66: 62 THE UNIVERSITY OF THE DISTRICT O
Page 67 and 68: 64 THE UNIVERSITY OF THE DISTRlcr O
Page 77 and 78:
74 THE UNIVERSITY OF THE DISTRICT O
Page 79 and 80:
76 THE UNIVERSITY OF THE DISTRICf O
Page 81 and 82:
Page 83 and 84:
80 THE UNIVERSITY OF THE DISTRlcr O
Page 85 and 86:
82 THE UNIVERSITY OF THE DISTRICT O
Page 87 and 88:
Page 89 and 90:
86 THE UNIVERSITY OF TIlE DISTRICT
Page 91 and 92:
88 THE UNIVERSITY OF TIlE DISTRICf
Page 93 and 94:
90 THE UNIVERSITY OF THE DISTRIcr O
Page 95 and 96:
Page 97 and 98:
94 THE UNIVERSITY OF THE DISTRICI'
Page 99 and 100:
96 THE UNIVERSITY OF THE DISTRlcr O
Page 101 and 102:
98 THE UNIVERSITY OF THE DISTRIcr O
Page 103 and 104:
100 THE UNIVERSITY OF THE DISTRlcr
Page 105 and 106:
102 THE UNIVERSITY OF mE DISTRICf O
Page 107 and 108:
104 THE UNIVERSITY OF THE DISTRIcr
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
110 THE UNIVERSITY OF THE DISTRICT
Page 115 and 116:
112 THE UNIVERSITY OF THE DISTRlCf
Page 117 and 118:
114 THE UNIVERSITY OF THE DISTRICT
Page 119 and 120:
116 THE UNIVERSITY OF THE DISTRlcr
Page 121:
118 THE UNIVERSITY OF THE DISTRICf
show all

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

Create successful ePaper yourself

Delete template?

Save as template?