District of Columbia Bar v. Kleindienst

345 A.2d 146, 1975 D.C. App. LEXIS 226

• Court: District of Columbia Court of Appeals
• Decided: August 11, 1975
• Docket: S-37-75
• Status: Published

Opinions

MEMORANDUM ORDER

PER CURIAM.

The Disciplinary Board of this court concluded, consistent with a report of a Hearing Committee, that respondent violated Disciplinary Rules 1-102(A)(4) and (5) ¹ by virtue of misrepresentations and dishonest conduct prejudicial to the administration of justice. The Board found specifically that respondent “was guilty of direct and repeated misrepresentations in answering persistent inquiries about White House involvement in Justice Department litigation against ITT.”

The Board’s quoted finding is correct. The evidence discloses that during Senate confirmation hearings on respondent’s nomination as Attorney General of the United States, he expressly asserted that no effort had been made by anyone at the White House directed at influencing the Department of Justice in its conduct of antitrust litigation challenging mergers by International Telephone & Telegraph, Inc. with the Canteen Corporation, the Hartford Corporation, and the Grinnell Corporation. To the contrary, a tape-recorded telephone conversation between respondent and then-President Nixon reveals that respondent was ordered to “stay out of [the case] .... Don’t file the brief [in the Supreme Court], . . . [D]ropthe . . . thing.”

We conclude that respondent did violate Disciplinary Rule 1-102(A)(4), and we deem it unnecessary to resolve the considerably more difficult question of whether his conduct also contravened subsection (5).

We turn then to the question of what disciplinary action to take. The Board adopted the recommendation of the Hearing Committee that a one-year suspension be imposed.² While the Board did not recommend more severe disciplinary action, we are free to consider that option, since the nature of the discipline imposed is a judgment independently to be made by this court. Through the conscientious efforts of the Hearing Committee and the Board, the relevant factual and judgmental considerations have been explored and ventilated, and our difficult way has been eased.

We start with a fundamental premise : The purpose of a disciplinary proceeding is to question the continued fitness of a lawyer to practice his profession. In re Randolph, 347 S.W.2d 91, 109 (Mo.1961); In re Black, 228 Or. 9, 363 P.2d 206, 207 (1961).

Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585; Matter of Durant, 80 Conn. 140, 147, 67 A. 497, 10 Ann.Cas. 539. Whenever the condition is broken the privilege is lost. To refuse admission him for past offenses. The examination into character, like the examination into learning, is merely a test of fitness. To to an unworthy applicant is not to punish strike the unworthy lawyer from the roll is not to add to the pains and penalties of crime. The examination into character is renewed; and the test of fitness is no longer satisfied. For these reasons courts have repeatedly said that disbarment is not punishment. . . . [In re Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917).]

The distinction between fitness and punishment must be maintained in this delicate judgment. At the hearing on this matter, Bar Counsel scrupulously adhered to that notion so ably stated by Judge Cardozo in the Rouss opinion, supra. At this stage, we, like the Board and the Hearing Committee, do not lose sight of the need to avoid erosion of public confidence in the profession. It is this latter consideration to which the Hearing Committee turned primarily as a basis for its recommendation. It correctly deemphasized the discipline factors often relevant to other kinds of misconduct. Those factors are the protection of the public from generally incompetent or unethical lawyers, and deterrence by example. The Hearing Committee in addition correctly looked to the impact discipline would have on respondent’s reputation (otherwise unblemished) and livelihood.

With these concepts in mind, we analyze the rationale of the Hearing Committee (adopted by the Board) in arriving at its recommendation of a one-year suspension the Committee’s conclusion assertedly was based on “the interest of the Court, the Bar, and the public.” In relating those interests to the misconduct revealed, the Committee expressed its belief that discipline of lesser severity would undercut the seriousness with which it thought the Bar regarded this misconduct.

That misconduct occurred cannot be gainsaid, but exclusion from consideration of lesser levels of discipline must not be based on that factor alone, particularly since the recommendations before us appear to have been underpinned by punitive considerations. As the Hearing Committee noted, the Supreme Court of the State of Arizona considered the same conduct in a disciplinary proceeding and imposed censure by unanimous vote.³ Whatever may be the force of respondent’s argument that considerations of comity and avoidance of repetitive disciplinary proceedings require us to impose the same discipline, a point unnecessay to reach here, two aspects of the Arizona action are important to the question whether a one-year suspension here would be primarily punitive and hence inappropriate. First, Arizona is the original examination and admitting jurisdiction and the one from which respondent’s career and reputation stem. Secondly, respondent remains in good standing in Arizona and can practice law there. Additionally, a three-judge committee of the United States District Court for the District of Columbia considered the same conduct by respondent, and concluded that no disciplinary action was warranted. Thus, protracted suspension by us merely would force respondent either to relocate his practice of law or make it purely “federal” in nature.

Accordingly, the view of the Hearing .Committee that respondent should have a lapse period for reflection and self-examination lacks real significance, and the recommended suspension loses all but its punitive consequences. This is a case in which, comity to one side, relevant considerations point toward substantial consistency. Indeed, the Hearing Committee, though primarily if not exclusively concerned with erosion of public confidence in the Bar, expressed the judgment that from the viewpoint of the public, censure would not be deemed an inappropriate result.

Censure or a brief suspension cannot be deemed a tolerant attitude toward the misconduct in the case. These actions are a severe rebuke to a man of high professional standards, as the Committee otherwise viewed respondent. What is important is that the discipline imposed not have a punitive impact as its primary effect. That the Hearing Committee dwelt on punishment as a paramount purpose for recommending suspension is clear from its references to “penalties” and “appropriate punishment in disciplinary proceedings”. (Report at 23.)

As the Committee itself acknowledges, a judgment in this case, as in any disciplinary matter, must be fair to the respondent and offer protection to the public if such is necessary. As did the Committee, we consider respondent’s previous, unblemished and laudable record in private practice and public service.⁴ In addition, we find lacking any public purpose to be served in a one-year suspension as a mode of discipline. Tn this matter a criminal prosecution was brought; it became the appropriate vehicle for punitive determinations.⁵ Any further attempt to punish in this proceeding inferentially would carry with it an implied expression of disagreement with the trial court’s sentencing judgment, which would not be an appropriate consideration in our exercise of disciplinary judgment. Suspension for one year, thus seen as not serving a proper purpose in this proceeding, will not be imposed.

Recognizing that respondent is a man of high professional stature, with correspondingly high obligations, who was caught up in a “highly charged political atmosphere when pressed by political opponents”, to use the Board’s words, we deem it appropriate to impose a suspension for a thirty-day period. The suspension shall begin on August IS, 1975, and at the expiration thereof respondent shall be deemed reinstated as a member of the Bar of this court.⁶

1 . Disciplinary Rules 1-102 (A) (4) and (5) provide:

A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

2 . One Board member recommended that we suspend respondent for three years.

3 . Our dissenting colleague dicusses at some length the minority views of a member of the Board of Governors of the State Bar of Arizona. The author of those views stated that he “would . . . have suspended Respondent for a short period ... . ”

4 . It is noted that even in the matter of the ITT litigation respondent did not “drop” the case as he was ordered to do by the then-President. He was instrumental in seeking an extension of time to file a jurisdictional statement in the Supreme Court. Thus, the case was kept alive through the respondent’s efforts, and it was subsequently settled in the best interest of the public.

The Committee characterized respondent’s efforts in terms that he “acted upon the presidential directive by urging the Solicitor General to seek an extension of time The Board, however, correctly observed that respondent “refused to carry out the [President’s] order.”

5 . With agreement of the Watergate Special Prosecutor, respondent, by a plea of guilty, was convicted of a violation of 2 U.S.C. § 192, a misdemeanor. A sentence of one month’s imprisonment and a $100 fine was suspended, and respondent was placed on unsupervised probation for one month.

6 . See In the Matter of John A. Shorter, Jr., D.C.C.A. No. S-31-75, Order dated July 7, 1975.