Smith, J.,
delivered the opinion of the Court. Murphy, C. J., dissents and filed a dissenting opinion at page 480 infra.
We shall here hold that although Daniel B. Brewster, a member of the Bar of this Court and a former United States Senator from Maryland, stands convicted of accepting an illegal gratuity, because this is not a crime involving moral turpitude and the petition for disciplinary action filed under Maryland Rule BV9 charged him only with conviction of a crime involving moral turpitude, the petition must be dismissed.
[474]*474A petition seeking disciplinary action was filed by the Attorney Grievance Commission after Mr. Brewster was convicted in the United States District Court for the District of Columbia on one count of accepting an illegal gratuity in violation of 18 U.S.C. § 201 (g). The conviction came after submission of a plea of nolo contendere. The Court imposed a fine of $10,000, thus ending almost six years of litigation in the federal courts.
The incidents giving rise to this prosecution took place in 1967 in connection with Mr. Brewster’s then forthcoming campaign for reelection to the United States Senate. He was originally indicted and charged in the United States District Court for the District of Columbia with five counts of bribery in violation of 18 U.S.C. § 201 (c) (1). This indictment was dismissed on constitutional grounds by that court in 1970, but in 1972 the Supreme Court reversed and remanded the case for further proceedings. United States v. Brewster, 408 U. S. 501, 92 S. Ct. 2531, 33 L.Ed.2d 507 (1972). Pursuant to that decision Mr. Brewster was tried on three counts of the original bribery indictment. A jury found him not guilty of bribery in violation of 18 U.S.C. § 201 (c) (1). However, under a ruling by the trial judge that acceptance of an illegal gratuity under 18 U.S.C. § 201 (g) is a lesser included offense of the bribery charge, the jury, based on conflicting evidence, found Mr. Brewster guilty of accepting an illegal gratuity on all three counts of the indictment. The United States Court of Appeals for the District of Columbia held that the trial judge failed to adequately instruct the jury on the distinction between the acceptance of an illegal gratuity and the acceptance of political campaign contributions. United States v. Brewster, 506 F. 2d 62 (D.C. Cir. 1974). Accordingly, it reversed the conviction and remanded the case for a new trial. On June 25, 1975, on remand, Mr. Brewster entered a plea of nolo contendere to one count of the indictment charging acceptance of an illegal gratuity in violation of 18 U.S.C. § 201 (g).
Thereafter, the Attorney Grievance Commission instituted these disciplinary proceedings. We ordered that the matter be transmitted to the Circuit Court for [475]*475Washington County and that Judges Irvine H. Rutledge, James S. Getty, and Frederick C. Wright, III, conduct a hearing and submit their findings and recommendations to this Court. See Rule BV9 b.
In Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 553, 318 A. 2d 811 (1974), we held “that when a member of the bar is shown to be willfully dishonest for personal gain by means of fraud, deceit, cheating or like conduct, absent the most compelling extenuating circumstances, ... disbarment follow [s] as a matter of course.” Rule BV10 e provides that a plea of nolo contendere is tantamount to conviction for the purposes of disciplinary proceedings. We made the specific observation in Agnew relative to conduct not involving the practice of law:
“The professional ethical obligations of an attorney, as long as he remains a member of the bar, are not affected by a decision to pursue his livelihood by practicing law, entering the business world, becoming a public servant, or embarking upon any other endeavor. If a lawyer elects to become a business man, he brings to his merchantry the professional requirements of honesty, uprightness, and fair dealing. Equally, a lawyer who enters public life does not leave behind the canons of legal ethics. A willful and serious malefaction committed by a lawyer-public servant brings dishonor to both the bar and the democratic institutions of our nation, and its destructive effect is thereby magnified.” Id. at 550-51.
In the instant case, the Attorney Grievance Commission did not develop any of the underlying circumstances of the commission of the offense. It presented no evidence before the three-judge panel but relied on Mr. Brewster’s plea of nolo contendere, arguing that the offense of accepting an illegal gratuity constituted moral turpitude on its face and that disbarment should therefore follow as a matter of course in light of the Agnew holding. Mr. Brewster, on the [476]*476other hand, argued that the offense of accepting an illegal gratuity, as distinguished from bribery, did not involve moral turpitude and thus that the rule of the Agnew case did not apply. The three-judge panel held that the offense of accepting an illegal gratuity “viewed in the light of contemporary campaign financing, did not in this case constitute moral turpitude.” The panel did find, however, that “based upon his plea Mr. Brewster was guilty of misconduct” and, therefore, recommended that he receive a reprimand. The Commission excepted to the recommendation of the three-judge panel, arguing that the crime of accepting an illegal gratuity does involve moral turpitude. Mr. Brewster took no exceptions to the recommendation.
The statute under which Mr. Brewster was convicted, 18 U.S.C. § 201 (g), also known as “acceptance of an illegal gratuity,” provides as follows:
“Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge, of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him .. . [shall be guilty of an offense].”
This section of the statute is complemented by 18 U.S.C. § 201 (f), which makes the donor of such gratuities also guilty of an offense. Several courts have discussed the meaning of this statute, although they have not been entirely in accord on its precise reach. United States v. Brewster, supra, 506 F. 2d 62 (D. C. Cir. 1974); United States v. Harary, 457 F. 2d 471 (2d Cir. 1972); United States v. Barash, 412 F. 2d 26 (2d Cir.), cert. denied, 396 U. S. 832 (1969); United States v. Umans, 368 F. 2d 725 (2d Cir. 1966), cert. dismissed, 389 U. S. 80 (1967);
Free access — add to your briefcase to read the full text and ask questions with AI
Smith, J.,
delivered the opinion of the Court. Murphy, C. J., dissents and filed a dissenting opinion at page 480 infra.
We shall here hold that although Daniel B. Brewster, a member of the Bar of this Court and a former United States Senator from Maryland, stands convicted of accepting an illegal gratuity, because this is not a crime involving moral turpitude and the petition for disciplinary action filed under Maryland Rule BV9 charged him only with conviction of a crime involving moral turpitude, the petition must be dismissed.
[474]*474A petition seeking disciplinary action was filed by the Attorney Grievance Commission after Mr. Brewster was convicted in the United States District Court for the District of Columbia on one count of accepting an illegal gratuity in violation of 18 U.S.C. § 201 (g). The conviction came after submission of a plea of nolo contendere. The Court imposed a fine of $10,000, thus ending almost six years of litigation in the federal courts.
The incidents giving rise to this prosecution took place in 1967 in connection with Mr. Brewster’s then forthcoming campaign for reelection to the United States Senate. He was originally indicted and charged in the United States District Court for the District of Columbia with five counts of bribery in violation of 18 U.S.C. § 201 (c) (1). This indictment was dismissed on constitutional grounds by that court in 1970, but in 1972 the Supreme Court reversed and remanded the case for further proceedings. United States v. Brewster, 408 U. S. 501, 92 S. Ct. 2531, 33 L.Ed.2d 507 (1972). Pursuant to that decision Mr. Brewster was tried on three counts of the original bribery indictment. A jury found him not guilty of bribery in violation of 18 U.S.C. § 201 (c) (1). However, under a ruling by the trial judge that acceptance of an illegal gratuity under 18 U.S.C. § 201 (g) is a lesser included offense of the bribery charge, the jury, based on conflicting evidence, found Mr. Brewster guilty of accepting an illegal gratuity on all three counts of the indictment. The United States Court of Appeals for the District of Columbia held that the trial judge failed to adequately instruct the jury on the distinction between the acceptance of an illegal gratuity and the acceptance of political campaign contributions. United States v. Brewster, 506 F. 2d 62 (D.C. Cir. 1974). Accordingly, it reversed the conviction and remanded the case for a new trial. On June 25, 1975, on remand, Mr. Brewster entered a plea of nolo contendere to one count of the indictment charging acceptance of an illegal gratuity in violation of 18 U.S.C. § 201 (g).
Thereafter, the Attorney Grievance Commission instituted these disciplinary proceedings. We ordered that the matter be transmitted to the Circuit Court for [475]*475Washington County and that Judges Irvine H. Rutledge, James S. Getty, and Frederick C. Wright, III, conduct a hearing and submit their findings and recommendations to this Court. See Rule BV9 b.
In Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 553, 318 A. 2d 811 (1974), we held “that when a member of the bar is shown to be willfully dishonest for personal gain by means of fraud, deceit, cheating or like conduct, absent the most compelling extenuating circumstances, ... disbarment follow [s] as a matter of course.” Rule BV10 e provides that a plea of nolo contendere is tantamount to conviction for the purposes of disciplinary proceedings. We made the specific observation in Agnew relative to conduct not involving the practice of law:
“The professional ethical obligations of an attorney, as long as he remains a member of the bar, are not affected by a decision to pursue his livelihood by practicing law, entering the business world, becoming a public servant, or embarking upon any other endeavor. If a lawyer elects to become a business man, he brings to his merchantry the professional requirements of honesty, uprightness, and fair dealing. Equally, a lawyer who enters public life does not leave behind the canons of legal ethics. A willful and serious malefaction committed by a lawyer-public servant brings dishonor to both the bar and the democratic institutions of our nation, and its destructive effect is thereby magnified.” Id. at 550-51.
In the instant case, the Attorney Grievance Commission did not develop any of the underlying circumstances of the commission of the offense. It presented no evidence before the three-judge panel but relied on Mr. Brewster’s plea of nolo contendere, arguing that the offense of accepting an illegal gratuity constituted moral turpitude on its face and that disbarment should therefore follow as a matter of course in light of the Agnew holding. Mr. Brewster, on the [476]*476other hand, argued that the offense of accepting an illegal gratuity, as distinguished from bribery, did not involve moral turpitude and thus that the rule of the Agnew case did not apply. The three-judge panel held that the offense of accepting an illegal gratuity “viewed in the light of contemporary campaign financing, did not in this case constitute moral turpitude.” The panel did find, however, that “based upon his plea Mr. Brewster was guilty of misconduct” and, therefore, recommended that he receive a reprimand. The Commission excepted to the recommendation of the three-judge panel, arguing that the crime of accepting an illegal gratuity does involve moral turpitude. Mr. Brewster took no exceptions to the recommendation.
The statute under which Mr. Brewster was convicted, 18 U.S.C. § 201 (g), also known as “acceptance of an illegal gratuity,” provides as follows:
“Whoever, being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge, of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him .. . [shall be guilty of an offense].”
This section of the statute is complemented by 18 U.S.C. § 201 (f), which makes the donor of such gratuities also guilty of an offense. Several courts have discussed the meaning of this statute, although they have not been entirely in accord on its precise reach. United States v. Brewster, supra, 506 F. 2d 62 (D. C. Cir. 1974); United States v. Harary, 457 F. 2d 471 (2d Cir. 1972); United States v. Barash, 412 F. 2d 26 (2d Cir.), cert. denied, 396 U. S. 832 (1969); United States v. Umans, 368 F. 2d 725 (2d Cir. 1966), cert. dismissed, 389 U. S. 80 (1967); United States v. Irwin, 354 F. 2d 192 (2d Cir. 1965), cert. denied, 383 U. S. 967 (1966).
[477]*477In Irmn the court said of 18 U.S.C. § 201 (f):
“[W]hat Congress had in mind was to prohibit an individual, dealing with a Government employee in the course of his official duties, from giving the employee additional compensation or a tip or gratuity for or because of an official act already done or about to be done.
“The awarding of gifts thus related to an employee’s official acts is an evil in itself, even though the donor does not corruptly intend to influence the employee’s official acts, because it tends, subtly or otherwise, to bring about preferential treatment by Government officials or employees, consciously or unconsciously, for those who give gifts as distinguished from those who do not. The preference may concern nothing more than fixing the time for a hearing or giving unusually prompt consideration to the application of a donor while earlier applications of non-donors are made to wait, even though there is no evidence that the donor sought the particular preference.’’ Id. 354 F. 2d at 196.
The same court which decided Irwin said in TJmans:
“[T]he section makes it criminal to pay an official a sum which he is not entitled to receive regardless of the intent of either payor or payee with respect to the payment.” Id. 368 F. 2d at 730.
In Brewster the United States Court of Appeals for the District of Columbia observed that under the interpretation of the Second Circuit in Umans “it is difficult to see how section (f) or (g) can state a criminal offense as applied to an elected public official.” It stated that it disagreed with Umans and held that some criminal intent was necessary under the statute, 506 F. 2d at 73 n. 26. However, the court did note that, unlike bribery, acceptance of an illegal gratuity required no “corrupt” intent:
“The requisite intent to constitute accepting a [478]*478bribe is to accept a thing of value ‘corruptly’ under section (c) (1); the comparable intent under the gratuity section (g) is to accept a thing of value ‘otherwise than as provided by law for the proper discharge of official duty.’ ... [T]he two comparative clauses are not equivalents. . . . ‘Corruptly’ bespeaks a higher degree of criminal knowledge and purpose ....” Id. 506 F. 2d at 71.
Moreover, the District of Columbia Circuit in Brewster noted that under the bribery section the acceptance of the consideration must be “in return for” the official’s “being influenced in his performance of any official act,” while under the illegal gratuity section the official’s acceptance of the gratuity need not be for the purpose of influencing his official acts. The court stated:
“The bribery section makes necessary an explicit quid pro quo which need not exist if only an illegal gratuity is involved; ... [in the crime of accepting an illegal gratuity] the official act for which the gratuity is given might have been done without the gratuity, although the gratuity was produced because of the official act.” Id. 506 F. 2d at 72.
The court, after commenting on the difficulty of the task, went on to distinguish between acceptance of an illegal gratuity and the acceptance of campaign contributions.
Unlike the situation which prevails with reference to legislative history of enactments of the Maryland General Assembly, one normally finds legislative history of Congressional enactments which may aid substantially in statutory interpretation. In this instance the legislative history found in 1962 U.S. Code Cong. & Ad. News 3852 gives not the slightest hint of what the Congress intended when it enacted 18 U.S.C. § 201 (g). In the light, therefore, of the interpretation of the illegal gratuity statute by the United States Courts of Appeal in the previously discussed cases, we agree with the. three-judge panel that Mr. Brewster’s nolo, contendere plea should not be regarded as a [479]*479conviction of a crime involving moral turpitude. In this regard it must be specifically borne in mind that he was acquitted of bribery by a District of Columbia jury.
In full, the charging portion of the “petition” states:
“That your Petitioner specifically represents and charges that the Respondent, in violation of Disciplinary Rules 1-102, 9-101(0, and 8-101, Code of Professional Responsibility, Rule 1230, Appendix F, Maryland Rules of Procedure, did unethically and unprofessionally, enter a plea of nolo contendere to a crime involving moral turpitude, to wit: ‘Unlawful Gratuity,’ as defined in 18 U.S.C.A. Sec. 201 (g), for which he was sentenced to pay a fine of $10,000, as will more fully appear by reference to a certified copy of docket entries in Criminal Case 1872-69, United States District Court for the District of Columbia, entitled United States of America v. Daniel B. Brewster, et al., attached hereto as a part hereof.”
Although reference was made to a violation of three rules, the scope of the petition and the proceedings against Mr. Brewster were actually quite narrow. Because the charging document referred solely to illegal conduct involving moral turpitude, Mr. Brewster was required to defend only with respect to an alleged violation of DR 1-102 (A) (3) (“A lawyer shall not engage in illegal conduct involving moral turpitude.”); he was given no notice of charges with respect to any of the other five subsections of DR 1-102. Moreover, at no time has Bar Counsel contended in argument, petition, or exception that the conduct of Mr. Brewster was subject to disciplinary action under any of the other five subsections of DR 1-102.
An analogy to the criminal law explicitly illustrates why Mr. Brewster was put on notice only with respect to DR 1-102 (A) (3). Maryland Code (1957, 1970 Repl. Vol., 1976 Cum. Supp.) Art. 66V2, § 11-902, in four separate subsections proscribes driving (a) while intoxicated, (b) while driving ability is impaired by consumption of alcohol, [480]*480(c) under the influence of drugs or combination of drugs and alcohol, and (d) under the influence of any controlled dangerous substance. If, for example, a person were merely charged with “violating Section 11-902,” as is permitted pursuant to Article 66V2, § 16-104, in the absence of obtaining particulars (see Md. Rule 715), he could be convicted for a violation of any of the subsections. However, if the charging document specified that the person “did drive or attempt to drive while in an intoxicated condition,” he could not be found guilty of violating subsection (d), even if it were proved at trial that he had driven under the influence of marihuana, regardless of whether the document referred to § 11-902 generally or to subsection 11-902 (a) specifically.
Although the petition alleges violations of DR 9-101 (C) and DR 8-101, neither the panel nor this Court has ever been informed as to what conduct of Mr. Brewster amounts to a violation of these rules. Therefore, any reliance upon those rules as a basis for discipline has been abandoned.
Lawyers are not second-class citizens. They are as much entitled to due process of law and fundamental fairness as other citizens. See In re Ruffalo, 390 U. S. 544, 550-51, 88 S. Ct. 1222, 20 L.Ed.2d 117 (1968), and Bar Ass’n v. Cockrell, 274 Md. 279, 286-87, 334 A.2d 85 (1975). It thus follows that since the crime here involved was not one involving moral turpitude, there has been no notice of charges with respect to any of the subsections of DR 1-102 other than that involving moral turpitude, and there having been no evidence adduced or specification as to the manner in which Mr. Brewster may have violated DR 9-101 (C) and DR 8-101, the petition for disciplinary action must be dismissed.
It is so ordered.