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WHEN LA WYERS BREAK THE LAW 29Alcoholism and substance abuse lead to a number of problems includingmissed filing deadlines, failure to advise clients of the status of legal proceedings,failure to appear in court as scheduled, unauthorized use of clients' funds to supportthe attorney-addict's habit, and a general inattention to work. 132Because of the seriousness of the problem, some have called for more attemptsby the bar to help fellow attorneys overcome their addictions. 133 "A policy ofhelping attorneys overcome their substance abuse would be furthered by allowinga mitigation of attorney discipline on a showing of good-faith attempts by theattorney in question to rid himself of his dependency.,,134The D.C. Court of Appeals does not consider alcoholism-or any other mitigatingfactor-in moral turpitude proceedings. That is because the statute, D.C.Code § 11-2503(a), is mandatory in its terms. The Court of Appeals held in In reHopmayer135 that the only issue in a case where an attorney commits a crime ofmoral turpitude (whether per se or on the facts) is whether a valid criminal convictionwas entered. 136In cases where moral turpitude is not found, and an attorney is being chargedwith merely violating the Rules of Professional Conduct, alcoholism can be consideredas a mitigating factor. 137 In re Kersey138 is the definitive case on thesubject. In Kersey, an attorney was charged with committing over twenty ethicalviolations. However, the Court of Appeals found that Kersey's "professionalconduct was substantially affected by his alcoholism" and ordered five years ofprobation, with a suspended order of disbarment. 139 The Court admonished,however, that, "We recognize that the path to recovery from alcoholism is notalways a straight and narrow one. Thus, any violation will not necessarily mandaterevocation of Kersey's probation.,,14o Kersey frequently drank a fifth ofrum everyday. This led his law practice to go into disarray. He missed courtappearances, arrived late, appeared disheveled, was unprepared, commingled clientfunds, and was twice arrested for drunk-driving. 141 The Court mitigated, butdid not excuse, these violations because of Kersey's alcoholism,142 "We agree132 Marano, supra note 127, at 368.133 Id. at 370 ("a crucial concern [is] helping attorneys who are substance abusers begin thelong, hard road to recovery.").134 Id.135 In re Hopmayer, 625 A.2d 290 (D.C. 1993).136 See id. at 291.137 See In re Kersey, 520 A.2d 321, 326 (D.C. 1987) ("Today we hold that alcoholism is a mitigatingfactor to be considered in determining discipline.").138 Id. at 321.139 Id. at 328.140 Id. at 328 n. 23.141 See id. at 324.142 See id. at 322 ("While no jurisdiction has ever held that alcoholism is a defense to charges ofprofessional conduct, many jurisdictions have considered it a mitigating factor when imposingdiscipline. ").
30 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWwith the Committee and the Board that a sufficient nexus between Kersey's alcoholismand his misconduct has been established.,,143 Thus, Kersey establishedthat there exists a "but-for" test in order to mitigate discipline because ofalcoholism. 144The alcoholic-attorney has the burden of proving that his or her alcoholism"'substantially affected' the charged misconduct by a preponderance of the evidence.,,14SProof varies from case-to-case. 146 However, as explained by theCourt in In re Temple,147 alcoholism does not have to be the only cause of themisconduct; there may be other factors which contribute to the ethical violations.148 "[T]he attorney must show that the factor was sufficiently determinativeof his conduct that its removal can be expected to end the misconduct.,,149 Templealso held that addiction to prescription drugs could also be considered in mitigationso long as the medicine was lawfully obtained. 150CONCLUSIONIn the Court of Appeals' three decades of jurisprudence interpreting D.C.Code § 11-2S03(a)'s "moral turpitude" language, the Court has tried to answerthe following fundamental question that every disciplinary authority must ask:For which crimes should attorneys be automatically disbarred? The answer is ascomplicated as the question.Cases such as Kent and Spiridon demonstrate that the Court of Appeals oftentries to inject equitable, case-by-case considerations into its decisions. D.C. Code§ 11-2S03(a), however, directs the Court's analysis, much to the Court's chagrin.One Board member wrote, "We, as lawyers, face with dread the determination ofwhat crimes involve 'moral turpitude.' ,,151 Despite outlining three possible definitionsof "moral turpitude" in Colson, the Court of Appeals and the Board onProfessional Responsibility continue to wallow in statute-by-statute determinationsof moral turpitude per se. While the list of statutes that have been evaluatedfor moral turpitude has grown to several dozen, there are many that havenot. What of involuntary manslaughter?152 Public intoxication?143 Id. at 327.144 See ill. at 327 ("We hold that this 'but for' test is the standard that must be met in order toprove causation in disciplinary cases involving alcoholism.").145 In re Miller, 553 A.2d 201, 203 (D.C. 1989).146 See id. at 204.147 In re Temple, 596 A.2d 585 (D.C. 1991).148 See id. at 590.149 [d.150 See id. at 586.151 In re Campbell, 522 A.2d 892 (D.C. 1987).152 The Court in In re Hoare, 727 A.2d 316, 317 (D.C. 1999), sidestepped the issue of whetheraggravated reckless homicide was a crime of moral turpitude per se. See id. ("we express no opinionon the Board's finding that respondent's conduct did not involve moral turpitude.). However, the
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