In Re Abrams

689 A.2d 6, 1997 D.C. App. LEXIS 23, 1997 WL 60760

• Court: District of Columbia Court of Appeals
• Decided: February 5, 1997
• Docket: 91-BG-1518
• Status: Published

Opinions

ON REHEARING EN BANC

SCHWELB, Associate Judge.

This matter is before us on the recommendation of the Board on Professional Responsibility that Elliott Abrams, Esq., a member of our Bar, and formerly Assistant Secretary of State for Inter-American Affairs, be suspended from the practice of law in the District of Columbia for a period of one year. The Board concluded, on the basis of extensive evidentiary findings by the Hearing Committee, that Abrams had engaged in “dishonesty, deceit or misrepresentation” by giving false (but unsworn) testimony to three Congressional committees regarding the role of the United States government in what has become known as the Iran-Contra Affair.

Following Abrams’ conviction, upon a plea of guilty, of criminal charges arising out of his Congressional testimony, President Bush granted him a full and unconditional pardon. Although Abrams conceded before the Board that the pardon did not preclude Bar Counsel from maintaining this disciplinary proceeding, he now contends that the President’s action blotted out not only his convictions but also the underlying conduct, and that Bar Counsel’s charges must therefore be dismissed. A division of this court agreed with Abrams. In re Abrams, 662 A.2d 867 (D.C.1995) (Abrams I).

We granted Bar Counsel’s petition for rehearing en banc, In re Abrams, 674 A.2d 499 (D.C.1996) (en banc) (Abrams II), and we now hold, in conformity with the virtually unanimous weight of authority, that although the presidential pardon set aside Abrams’ convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did. “Whatever the theory of the law may be as to the effect of a pardon, it cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.” State v. Hawkins, 44 Ohio St. 98, 5 N.E. 228, 237 (1886). Specifically, the pardon “did not efface the ... want of professional honesty involved in the crime.” People v. Gilmore, 214 Ill. 569, 73 N.E. 737, 737 (1905).

“No moral character qualification for Bar membership is more important than truthfulness and candor.” In re Meyerson, 190 Md. 671, 59 A.2d 489, 496 (1948). An attorney is required to be a person of good moral character not only at the time of admission to the Bar, but also thereafter. In re Rouss, 221 N.Y. 81, 116 N.E. 782, 783 (1917) (Cardozo, C.J.). The pardon could not “reinvest [Abrams] with those qualities which are absolutely essential for an attorney at law to possess or rehabUitate him in the trust and confidence of the court.” In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 163 (1935) (citation omitted). Accordingly, we hold that this court’s authority to impose professional discipline was not nullified by the presidential pardon.

Abrams contends, in the alternative, that the discipline recommended by the Board is too severe. As reflected in Part IV of this opinion and in the separate concurring opinions of Judge Schwelb, Judge King, and Judge Ruiz, four members of the five-judge majority of the en banc court would suspend Abrams from practice for at least six months. Because this sanction has not commanded a majority of the full court, however, we order that Abrams be publicly censured.

I.

THE FACTS¹

From 1981 to 1984, the United States openly provided military and other assistance to the Nicaraguan “Contras,” who were attempting to overthrow the former Sandinista government of that Central American nation. In October 1984, Congress enacted the “Bo-land Amendment,” Pub.L. No. 98-473, 98 Stat. 1837, 1935 (1984), which prohibited the furnishing of further assistance to the rebels. The Reagan administration, however, remained sympathetic to the Contra cause. As Assistant Secretary of State for Inter-American Affairs, Elliott Abrams was often the administration’s spokesman on issues relating to United States policy in Central America.

On October 5, 1986, an American aircraft which was carrying supplies to the Contras was shot down over Nicaragua. The downing of the plane, and the capture of its pilot, led to public allegations that notwithstanding the Boland Amendment, the government was continuing to arm and otherwise assist the Contras. As a result, Abrams was called to appear before several Congressional committees to explain the government’s position.

On October 10, 1986, Abrams testified as follows before the United States Senate Committee on Foreign Relations:

In the last two years, since Congress cut off support to the resistance, this supply system has kept them alive. It is not our supply system. It is one that grew up after we were forbidden from supplying the resistance, and we have been kind of careful not to get closely involved with it and to stay away from it....

I think that people who are supplying the Contras believe that we generally approve of what they are doing — and they are right. We do generally approve of what they are doing, because they are keeping the Contras alive while Congress makes its decision, which each House has separately, though obviously final legislation is not yet ready.

So, the notion that we are generally in favor of people helping the Contras is correct.

We do not encourage people to do this. We don’t round up people, we don’t write letters, we don’t have conversations, we don’t tell them to do this, we don’t ask them to do it. But I think it is quite clear, from the attitude of the administration, the attitude of the administration is that these people are doing a very good thing, and if they think they are doing something that we like, then, in a general sense, they are right. But that is without any encouragement and coordination from us, other than a public speech by the President, that kind of thing, on the public record.[²]

At the time Abrams so testified, he knew that Lieutenant Colonel Oliver North had engaged in conversations with people who were supplying the Contras, and that North had asked and encouraged these people to supply the Contras. Abrams concealed from the Senate Committee his knowledge of these conversations and of North’s support for and coordination of the assistance being provided to the Contras.

Four days later, on October 14, 1986, Abrams gave the following testimony before the United States House of Representatives Permanent Select Committee on Intelligence:

[THE CHAIRMAN]: Do you know if any foreign government is helping to supply the Contras? There is a report in the L.A. paper, for example, that the Saudis are.

[MR. GEORGE]: [³] No sir, we have no intelligence of that.

[MR. ABRAMS]: I can only speak on that question for the last fifteen months when I have been in this job, and that story about the Saudis to my knowledge is false. I personally cannot tell you about pre-1985, but in 1985-1986, when I have been around, no.

[THE CHAIRMAN]: Is it also false with respect to other governments as well?

[MR. ABRAMS]: Yes, it is also false.

(Emphasis in information.) In fact, Abrams had personally met with a representative of the Sultan of Brunei to solicit the Sultan’s assistance, and he was aware that the Sultan had agreed to provide ten million dollars to the Contras. Abrams had also provided the Sultan’s representative with a Swiss bank account number so that funds for the Contras could be deposited into that account.

On November 25, 1986, Abrams testified before the United States Senate Select Committee on Intelligence. Earlier on that day, Attorney General Edwin C. Meese had disclosed at a press conference that the proceeds of sales of arms to Iran had been diverted to the Contras. Abrams stated that

I was, until today, fairly confident that there was no foreign government contributing to this. But I knew nothing, still don’t know anything, about the mechanisms by which money was transferred from private groups that have been raising it, to the Contras.

(Emphasis added.) Once again, Abrams concealed his knowledge regarding the Brunei solicitation, and he misled the Senate Committee with respect to contributions that had been made to the Contras by private organizations and by a foreign government.⁴

ii.

THE DISCIPLINARY PROCEEDING

On October 7,1991, Abrams entered a plea of guilty to a two-count information charging violations of 2 U.S.C. § 192 (1985) (willful failure to answer questions pertinent to a Congressional inquiry).⁵ On November 15, 1991, Abrams was placed on probation for a term of two years and ordered to perform one hundred hours of community service.

Following Abrams’ convictions, Bar Counsel charged him with three counts of “conduct involving dishonesty, deceit and misrepresentation,” in violation of Disciplinary Rule 1-102(A)(4) of the former Code of Professional Responsibility. A hearing was held on December 21, 1992 before Hearing Committee No. 8, and the Committee took the case under advisement. On December 24, 1992, three days after that hearing, President Bush issued the full and unconditional pardon on which Abrams now relies.

On April 8, 1993, the Hearing Committee issued a comprehensive Report and Recommendation in which it found that Abrams had committed the charged violations. The Committee recommended that Abrams be suspended from practice for one year. The Committee took note of the presidential pardon, but concluded that “[i]n the context of attorney disciplinary proceedings, a presidential pardon will not preclude the imposition of sanctions.”

Abrams excepted to the Hearing Committee’s recommendation, but he did so solely on the ground that the proposed sanction was too harsh. In a pro se “Memorandum to the Board,” Abrams explicitly acknowledged that the presidential pardon did not preclude Bar Counsel from pursuing disciplinary charges and that the Hearing Committee was correct in so concluding.

On July 26, 1993, the Board issued its Report and Recommendation. The Board sustained the Hearing Committee’s findings and recommended, as had the Hearing Committee, that Abrams be suspended from practice for one year.⁶ Apparently because Abrams had conceded the issue, the Board did not address at all the effect, if any, of the presidential pardon. Abrams filed timely exceptions to the Board’s recommendation and, following the issuance of the division’s opinion in Abrams I and the vacation of that opinion in Abrams II, the case was argued to the full court sitting en banc.

III.

THE EFFECT OF THE PARDON

A The Standard of Review.

The question whether President Bush’s pardon of Abrams requires dismissal of the disciplinary proceeding is one of law, and we consider it de novo. See Griffin v. United States, 618 A.2d 114, 117 (D.C.1992). We recognize, at the same time, that the Board on Professional Responsibility has “substantial expertise in the area of attorney discipline.” In re Ray, 675 A.2d 1381, 1385 (D.C.1996). The Board’s views as to the issue before us, while not dispositive or presumptively dispositive, merit respectful consideration. Although, in the present case, Abrams’ concession regarding the effect of the pardon obviated any occasion for the Board to address that issue, the Board has previously taken the position that a presidential pardon is not a defense in a disciplinary proceeding. In re Felt, Bar Docket No. 329-77 (BPR Nov. 12, 1981).

Abrams’ acknowledgment before the Board that the pardon did not require dismissal of the proceeding also has other potential consequences. We have consistently held that an attorney who fails to present a point to the Board waives that point and “cannot be heard to raise it for the first time here.” Ray, supra, 675 A.2d at 1386 (citing authorities). In this case, as we have seen, Abrams not only eschewed any contention before the Board that the pardon was a defense, but affirmatively conceded that the pardon did not require dismissal. “The kind of barristerial about-face which characterizes this case finds little favor in the courts.” B.J.P. v. R.W.P., 637 A.2d 74, 78 (D.C.1994).

A pardon has been described as a “plea in bar,” comparable to the statute of limitations. Commonwealth v. Geagan, 339 Mass. 487, 159 N.E.2d 870, 878, cert. denied, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). As Chief Justice Marshall explained for the Court in United States v. Wilson, 32 U.S. (7 Pet.) 150, 8 L.Ed. 640 (1833),

[t]he king’s charter of pardon must be specially pleaded, and that at a proper time; for if a man is indicted and has a pardon in his pocket, and afterwards puts himself upon his trial by pleading the general issue, he has waived the benefit of such pardon.

Id. at 163 (emphasis added) (quoting 4 William BlacKSTone, COMMENTARIES *401). Under these circumstances, Bar Counsel might well have argued, perhaps with some prospect of success, that as a result of Abrams’ concession before the Board, he (Abrams) was precluded from asking this court to dismiss the disciplinary proceeding on the basis of the presidential pardon.

Abrams contends, however, that the pardon deprives this court of subject matter jurisdiction, but cf. Wilson, supra, and that the jurisdictional issue may be raised at any time and could not have been waived. Bar Counsel has elected not to challenge this contention, and there has therefore been no adversarial crossing of swords with respect to whether a pardon deprives the court of jurisdiction over the disciplinary proceeding. Moreover, because we rule in Bar Counsel’s favor with respect to the effect of the pardon, our disposition of the case is the same as it would have been if we had treated the point as having been waived. Accordingly, we will assume, solely for the sake of argument, and without deciding the question, that Abrams’ contention based on the pardon is properly before us.

B. The Merits.

(1) General considerations.

President Bush pardoned Abrams pursuant to Article II, Section 2, Clause 1 of the Constitution, which authorizes the President to “grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.” Although a violation of the District of Columbia Rules of Professional Conduct is not a crime, and certainly not “an offense against the United States,” see In re Bocchiaro, 49 F.Supp. 37, 38 (W.D.N.Y.1943) (President lacks authority to pardon state offenses), Abrams contends that the presidential pardon directed to his federal convictions precludes this court from imposing any disciplinary sanction based on his testimony before the Congressional committees. He relies heavily on the following language from the majority opinion in Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81, 18 L.Ed. 366 (1866):

A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

(Emphasis added.)

According to Abrams, the quoted language requires this court, in effect, to pretend that his pardoned wrongdoing never happened. Although Abrams deceived three Congressional committees, and although he has admitted that he deceived at least two of them, he contends that the pardon precludes us from considering that wrongful conduct in assessing his moral character for the purpose of bar discipline.

The implications of Abrams’ position are troubling to say the least. Let us consider an apt analogy. Suppose that an alcoholic surgeon performs an operation while intoxicated. He botches the surgery. The patient dies. The surgeon is convicted of manslaughter and is sentenced to imprisonment. The President grants him a full and unconditional pardon. According to Abrams, the surgeon now has the right, as a result of the pardon, to continue to operate on other patients, without any interference from the medical licensing authorities.⁷ The proposition that the alcoholic but pardoned surgeon (or, by analogy, a habitually inebriated and unsafe airline pilot) cannot be disciplined is, in our view, altogether unacceptable and even irrational, and it has been emphatically rejected by the courts. See, e.g., People v. Rongetti 395 Ill. 580, 70 N.E.2d 568, 569-70 (1946), Page v. Watson, 140 Fla. 536, 192 So. 205, 209-10 (1938); State v. Hazzard, 139 Wash. 487, 247 P. 957, 958-60 (1926).

A more reasonable approach to the effect of a pardon, which avoids the incongruous result for which Abrams contends, was suggested by Professor Samuel Williston in his landmark article, Does a Pardon Blot Out Guilt?, 28 Harv.L.Rev. 647 (1915). After comparing the passage from Garland which we have quoted at page 10, supra, with the court’s earlier and quite different assessment of the nature of a pardon,⁸ and after explaining the precedents both before and after Garland, Professor Williston concluded:

The true line of distinction seems to be this: The pardon removes all legal punishment for the offence. Therefore if the mere conviction involves certain disqualifications which would not follow from the commission of the crime without conviction, the pardon removes such disqualifications. On the other hand, if character is a necessary qualification and the commission of a crime would disqualify even though there had been .no criminal prosecution for the crime, the fact that the criminal has been convicted and pardoned does not make him any more eligible.

Id. at 653 (emphasis added).

“The fundamental distinction suggested by Professor Williston has been generally accepted and followed by the courts since the date of his article.” Damiano v. Burge, 481 S.W.2d 562, 565 (Mo.App.1972). The parties have not cited, and our research has not disclosed, a single decision by any federal, state, or other court (Abrams I excepted) which has rejected Professor Williston’s reasoning. As will be apparent, see pp. 11-17, infra, the position of the Department of Justice is also consistent with Professor Willi-ston’s. We discern no basis in law, justice, or reason .to challenge this overwhelming trend.

(2) The nature of the proceeding.

It is important to note at the outset what this case is not about. Bar Counsel has not asked the court to disbar Abrams on account of his having been convicted of a crime of moral turpitude. Cf. In re Hopmayer, 625 A.2d 290 (D.C.1993); D.C.Code § 11-2503(a) (1996). The presidential pardon would undoubtedly have precluded a sanction based on Abrams’ conviction, and Abrams did not, in any event, commit such a crime. Instead, the proceeding was brought to discipline Abrams for engaging in conduct which, according to Bar Counsel, violated the Code of Professional Responsibility. Although the case was precipitated in part by Abrams’ criminal convictions,⁹ the existence vel non of a criminal conviction is not dispositive of the question whether Abrams violated his ethical obligations as an attorney. The central question in a disciplinary proceeding is whether the attorney has adhered to the high standards of honor and integrity which membership in our profession demands, and not whether he has been criminally punished for any derelictions.

“The Bar is a noble calling.” In re Shillaire, 549 A.2d 336, 337 (D.C.1988). “[T]he right to practice law not only presupposes in its possessor integrity, legal standing, and attainment, but also the exercise of a special privilege, highly personal, and partaking of the nature of a public trust.” In re Lavine, supra, 41 P.2d at 162. High standards of honor, integrity and professional competence have been in effect for attorneys since the reign of Henry IV. See In re Bozarth, 178 Okla. 427, 63 P.2d 726, 727 (1936) (citations omitted).

Responsibility for the discipline of attorneys admitted to the bar of the District of Columbia is vested in this court. See D.C.Code §§ 11-2501, -2502 (1995); D.C. Bar R. XI, § 1 (1996). Disciplinary sanctions are designed to maintain the integrity of the profession, to protect the public and the courts, and to deter other attorneys from engaging in similar misconduct. In re Reback, 513 A.2d 226, 231 (D.C.1986) (en banc). “Our purpose in conducting disciplinary proceedings and imposing sanctions is not to punish the attorney;¹⁰ rather, it is to offer the desired protection by assuring the continued or restored fitness of an attorney to practice law.” In re Steele, 630 A.2d 196, 200 (D.C.1993) (citation and footnote omitted); see also Reback, supra, 513 A.2d at 231.

“The question is,” said Lord Mansfield, “whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion.... It is not by way of punishment; but the court[s] in such eases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.”

Ex parte Wall, 107 U.S. 265, 273, 2 S.Ct. 569, 576, 27 L.Ed. 552 (1883) (emphasis added).

Because the obligation to protect the public from the unethical practitioner and to maintain the honor and integrity of the profession does not depend on a prosecutor’s pursuit or non-pursuit of criminal penalties, the courts have rejected the notion that the pardon of an attorney relieves them from carrying out their disciplinary responsibilities. Chief Judge (later Justice) Cardozo made the point well for a unanimous court in In re Kaufmann, 245 N.Y. 423, 157 N.E. 730 (1927):

There must be convincing proof of innocence before pardon will restore to the fellowship of the bar. Even innocence of crime will not suffice if there has been a failure to live up to the standards of morality and honor. Pardon does no more than open the door to an inquiry that would otherwise be barred. That much, however, it does.

Id. 157 N.E. at 733.¹¹ In other words, the pardon of an attorney “does not of itself invest him with those essentials required of an attorney-at-law.” Feinstein v. State Bar, 39 Cal.2d 541, 248 P.2d 3, 7 (1952) (citations omitted).

(3) District of Columbia authorities.

There is no District of Columbia ease law squarely in point on the issue before us. The authority that does exist, however, is consistent with Professor Williston’s approach and favors Bar Counsel’s position.

In Bowles v. Laws, 59 App. D.C. 399, 45 F.2d 669 (1930), cert. denied, 283 U.S. 841, 51 S.Ct. 488, 75 L.Ed. 1452 (1931), the court stated by way of dictum that “a [presidential] pardon wipes out the offense against the public, but does not annul the act or affect the right of the court to punish¹² for professional misconduct.” Id. at 401, 45 F.2d at 671 (emphasis added; citation omitted). The Board on Professional Responsibility reached the same conclusion in Felt, supra, and the Hearing Committee did likewise in the present case. The court in Bowles, the Board in Felt, and the Hearing Committee in Abrams were all unanimous.

(4) Federal authorities.

So far as we are aware, all of the federal appellate decisions in this century which have considered the effect of a presidential pardon have adopted the approach suggested by Professor Williston and have rejected the position urged on us by Abrams.

The closest ease to the present one is Grossgold v. Supreme Court of Illinois, 557 F.2d 122 (7th Cir.1977). Grossgold, an attorney, had been convicted of mail fraud and suspended from practice. He was subsequently pardoned by the President. He sought reinstatement to the Illinois Bar, claiming that his suspension had been based on the pardoned offense, and that it had therefore been nullified by the pardon. The Court of Appeals unanimously held that the trial court had lacked federal jurisdiction over the case. The court then added the following:

Assuming federal jurisdiction arguendo, the presidential pardon did not wipe out the moral turpitude inherent in the factual predicate supporting plaintiffs mail fraud conviction. As Judge Sprecher carefully explained in Bjerkan v. United States, 529 F.2d 125, 128 n. 2 (7th Cir.1975), a pardon does not blot out guilt nor restore the offender to a state of innocence.

The court quoted with approval the passage from Professor Williston’s article reproduced at page 11, supra, and concluded that because good character is a necessary qualification for the practice of law, and because Grossgold’s conduct was incompatible with good moral character, the fact that he had been pardoned did not relieve him from professional discipline. Id. at 125-26 (additional citations omitted).¹³

In United States v. Noonan, 906 F.2d 952 (3d Cir.1990), a defendant who had received a presidential pardon for a violation of the Selective Service Act asked the court to expunge the records of his prosecution and conviction. Invoking Garland, he claimed that the pardon had wiped out his guilt and that, in the eyes of the law, his offense no longer existed. Relying on the decisions in Grossgold and Bjerkan and on Professor Wil-liston’s article, the court, in an opinion by Judge Aldisert, held that Noonan was not entitled to expungement. Characterizing as “dictum” the statement in Garland that a pardon “blots out of existence the guilt,” id. at 958 (quoting 71 U.S. at 380), Judge Aldi-sert stated that the Supreme Court had abandoned the Garland dictum in Burdick v. United States, 236 U.S. 79, 91, 35 S.Ct. 267, 269, 59 L.Ed. 476 (1915).¹⁴ Quoting from Bjerkan, supra, 529 F.2d 125, 128 n. 2 (7th Cir.1975), Judge Aldisert explained that

the fact of conviction after a pardon cannot be taken into account in subsequent proceedings. However the fact of the commission of the crime may be considered. Therefore, although the effects of the commission of the offense linger after a pardon, the effects of the conviction are all but wiped out.

Id. at 958-59 (emphasis added). The presidential pardon, according to the court, “does not create any factual fiction that Noonan’s conviction had not occurred [or] justify ex-punetíon of his criminal court record.” Id. at 960.

In In re North, 314 U.S.App. D.C. 102, 62 F.3d 1434 (1994) (per curiam), Clair E. George, a C.I.A. official who had been pardoned (along with Abrams) for his role in the Iran-Contra matter, applied for an award of counsel fees. Fees were available, under the applicable statute, to those individuals who had not been indicted. George had been indicted, but he argued that the pardon had “blotted out” the indictment against him. Like Abrams, George relied heavily on Garland.

The court ruled, with one judge dissenting, that the pardon did not blot out the existence of the indictment, and that George was not eligible for an award of counsel fees. Just as the court in Noonan had done, the court in North characterized Garland’s “blot[ting] out” language as “dictum.” Id. at 105, 62 F.3d at 1437. The court noted Chief Justice Marshall’s definition of a pardon in Wilson, 32 U.S. (7 Pet.) at 160, which we have quoted in note 8, supra, and stated that

Garland’s rationale is consistent with Wilson; its dictum blotting out guilt is inconsistent with Wilson. Garland’s, dictum was implicitly rejected in Burdick [supra ], 236 U.S. 79 [35 S.Ct. 267, at 91, 35 S.Ct. at 269], which recognized that the acceptance of a pardon implies a confession of guilt.

Id. (citations omitted).

In In re Spenser, 22 F. Cas. 921 (Cir.Ct. D.Or.1878), Judge Deady wrote an excellent opinion in which, in effect, he anticipated Professor Williston’s article, as well as Gross-gold and the other decisions written a century or so after Spenser. William Spenser sought to become a citizen of the United States. In order to be eligible for citizenship, he was required to demonstrate, inter alia, that “he ha[d] behaved as a man of good moral character.” While residing in this country, however, Spenser had been convicted of perjury. He subsequently received an “unqualified” pardon from the governor. The question before the court was whether, in light of Garland, Spenser’s perjury had been “blotted out,” so that he was once again a man of good moral character. Notwithstanding Garland, the court answered that question in the negative:

By the commission of the crime, the applicant was guilty of misbehavior, within the meaning of the statute, during his residence in the United States. The pardon has absolved him from the guilt of the act, and relieved him from the legal disabilities consequent thereupon. But it has not done away with the fact of his conviction. It does not operate retrospectively. The answer to the question: Has he behaved as a man of good moral character? must still be in the negative; for the fact remains, notwithstanding the pardon, that the applicant was guilty of the crime of perjury— did behave otherwise than as a man of good moral character.

Id. at 923. Thus, in a case decided only a few years after Garland, a federal judge made the very distinction which Professor Williston articulated in his article and which the courts in the later decisions adopted as their ratio decidendi. See also United States v. Swift, 186 F. 1002, 1017 (N.D.Ill.911) (the post-Civil War cases “dispel the idea that the acts themselves, as distinguished from their penal consequences, were obliterated by pardon or amnesty.... A pardon or amnesty ... involves forgiveness, not forgetfulness.”)

(5) State court decisions.

So far as our research has disclosed, the state courts which have considered the effect of a presidential or gubernatorial pardon¹⁵ have likewise unanimously rejected the contention that such a pardon bars a disciplinary proceeding against an attorney if that proceeding is based on the attorney’s underlying conduct. See Damiano, supra, 481 S.W.2d at 565 (Professor Williston’s analysis has been “generally accepted and followed”). In the words of then Chief Judge Cardozo, writing for a unanimous court, “[pjardon blots out the offense and all its penalties, forfeitures and sentences, but the power to disbar remains.” Rouss, supra, 116 N.E. at 788.

The courts have reached this conclusion because, as the Supreme Court of California has recognized, the pardon of an attorney “does not of itself reinvest him with those essentials required of an attorney-at-law.” Wettlin v. State Bar, 24 Cal.2d 862, 151 P.2d 255, 259 (1944) (per curiam) (citation omitted). It does not efface “... the want of professional honesty involved in the crime_” People v. Gilmore, 214 Ill. 569, 73 N.E. 737, 737 (1905). “[T]he underlying conduct as representing fitness for the legal profession is still a concern, even though the criminal aspect has been excused or expunged by the pardon.” In re Harrington, 134 Vt. 549, 367 A.2d 161, 164 (1976). Indeed, “no responsible court could refuse to acknowledge the possibility that, [notwithstanding the pardon,] the undesirable fact of criminal conduct might still be of concern on the issue of probable fidelity to ethical standards.” Id. 367 A.2d at 165.

As the Supreme Court of Florida explained in State v. Snyder, 136 Fla. 875, 187 So. 381 (1939), “the very fact of embezzlement is cause for disbarment, and a pardon does not blot out that fact.” Id. 187 So. at 381-82. The pardon relieves the offender of the penal consequences of his conduct, In re Lavine, supra, 41 P.2d at 163, but disciplinary sanctions are not a part of the punishment for the crime. Snyder, supra, 187 So. at 382; see also discussion at pages 11-12, supra.

It is because an attorney’s continued integrity is so important that “a pardon does not deprive the court of the right to exercise its undoubted inherent power to say, upon a sufficient showing of dishonorable or unprofessional conduct, that an attorney is not befitted [sic] to engage in the practice of law.” In re Rudd, 310 Ky. 630, 221 S.W.2d 688, 689 (1949) (per curiam). This principle applies equally to a physician, for a pardon will not “erase the stain of bad character.” Hazzard, supra, 247 P. at 959. Accordingly, a court will not automatically permit the pardoned physician “to practice a profession which demands peculiar qualifications in order to protect the public, and [which] requires a license.” Id. at 960.¹⁶

Perhaps the leading state court case on the relation between a pardon and a disciplinary proceeding against an attorney is Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337 (1908). Nelson had been convicted of forgery. He received a pardon from the governor. Disbarment proceedings were brought against him, and he interposed the pardon as a defense. The court held that the pardon did not preclude the imposition of discipline:

[W]hile the general effect of a pardon as to the restoration of rights and privileges and the creation of a new credit and capacity may be conceded, the fact that a pardon has been granted to a person convicted of an offense cannot warrant the assertion that such a person is as honest, reliable, and fit to hold a public office as if he has constantly maintained the character of a law-abiding citizen.

Id. 109 S.W. at 338. The court stated that although the pardon could blot out the offense for which he was convicted, “it cannot wipe out the act that he did, which was adjudged an offense. It was done, and will remain a fact for all time.” Id. (emphasis added). The court continued:

While the effect of the pardon was to relieve him of the penal consequences of his act, it could not restore his character. It did not reinvest him with those qualities which are absolutely essential for an attorney at law to possess. It could not rehabilitate him in the trust and confidence of the court. Lawyers are officers of the court. They are agents through whom justice must be administered. They should always be worthy instruments of justice. Courts should never hesitate to disbar those who are morally unfit to act as such agents.

Id. at 340.

We have found no authority to the contrary. In Scott v. State, 6 Tex.Civ.App. 343, 25 S.W. 337 (1894), the court held that a proceeding to disbar Scott, which had been brought solely on the basis of Scott’s conviction of a felony, was barred by Scott’s receipt of a pardon from the governor. The court, however, explicitly recognized and distinguished authorities holding that a pardon would not operate as a bar to a disciplinary proceeding if that proceeding were based upon facts showing professional misconduct, rather than on the felony conviction alone. Id. 25 S.W. at 339.¹⁷ The court in Scott thus recognized the validity of the very distinction which Professor Williston was to propound in his article twenty-one years later.

We note that almost all of the decisions of federal and state courts which have followed Professor Williston’s approach have been unanimous.¹⁸

(6) The views of the Department of Justice.

On June 19,1995, in a Memorandum to the Pardon Attorney, the Honorable Walter Del-linger, then Assistant Attorney General for the Office of Legal Counsel (and now Acting Solicitor General), addressed the very issue presented in this ease. He wrote, in pertinent part, as follows:

In Garland the Court stated that a pardon makes the offender ... as innocent as if he had never committed the offense.” Id. (emphasis added). We do not interpret this to mean that the pardon creates the fiction that the conduct never took place. Rather, a pardon represents the Executive’s determination that the offender should not be penalized or punished for the offense. There may be instances where an individual’s conduct constitutes not only a federal offense, but also a violation of a separate code of conduct or ethics that the individual is obligated to comply with by virtue of his or her professional license. Discipline associated with the breach of the conditions of a professional license, where the disciplinary action is not triggered merely by the fact of commission or conviction of a federal offense, generally would not be barred by a pardon.

For example, an attorney charged with a criminal offense for which he or she is later pardoned by the President would be relieved of all consequences that attached solely by reason of his commission of the offense. However, the pardon would not necessarily prevent a local or state bar from disciplining the attorney, if it independently determined that the underlying conduct, or some portion of it, violated one of its canons of ethics. In those instances, the bar would not have based its decision to disbar or sanction the attorney on the fact that the attorney had violated the criminal laws of the United States, but rather would have conducted an inquiry into the conduct and determined that an ethical violation had occurred. Several state courts have taken this approach when considering the effect of a gubernatorial pardon on state disbarment proceedings. See e.g., Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337 (Ky.1908); In re Lavine, 2 Cal.2d 324, 41 P.2d 161 (Cal.1935); In re Bozarth, 178 Okla. 427, 63 P.2d 726 (Okla.1936).

(7) The Garland decision.

Because Abrams relies so heavily on Ex parte Garland, supra, we address that case in some detail. Shortly after the Civil War, Congress provided by statute that any person seeking the right to practice before a court of the United States must take an oath affirming that he had neither aided the Confederacy during the war nor held office in the Confederate government. Garland, who had been a member of the Supreme Court bar before the war, served as a member of the Confederate Congress during the Rebellion, and he was therefore unable to take the oath. Upon receiving a full and unconditional pardon from President Andrew Johnson, Garland petitioned the Supreme Court for the right to continue to practice before that Court without taking the prescribed oath.

The Court, by a vote of 5-4, held that the Act of Congress which imposed the requirement of this oath was “subject to the constitutional inhibition against the passage of bills of attainder.” 71 U.S. (4 Wall.) at 377. Further, in the majority’s view, the statute was “brought within the further inhibition of the Constitution against the passage of an ex post facto law.” Id. After holding the Act unconstitutional on these grounds, Justice Field wrote that the Court’s conclusion to that effect was “strengthened by a consideration of the effect of the pardon.” Id. at 380. Justice Field then added the passage, quoted at page 10, above, in which the pardon was described as “blot[ting] out” the offense. Id.

In light of the Court’s holding on the “bill of attainder” and “ex post facto law” issues, the discussion of the presidential pardon was unnecessary for its disposition of the case. By the time Justice Field reached the issue of the pardon, the case had already been decided. Irrespective of the pardon, the statute was deemed invalid on other constitutional grounds. The courts, both federal and state, have thus accurately described the “blot[ting] out” discussion in Garland as “dictum.” North, supra, 62 F.3d at 1437; Noonan, supra, 906 F.2d at 958; Skinner, supra, 632 A.2d at 84; see also Lavine, su-pro, 41 P.2d at 164 (“[t]he additional discussion [in Garland ] as to the effect of the pardon was unnecessary to the decision.”)¹⁹

More fundamentally, the problem before the court in Garland was quite different from the one presented here. Garland did not involve a disciplinary proceeding against an individual attorney for violating his ethical responsibilities. Rather, that ease dealt with a statutory enactment which, in one fell swoop, retroactively destroyed the right of numerous attorneys to practice law before the federal courts. That blanket disqualification, after the fact, of all who had served the Confederacy was the statute’s principal vice. The Court had no occasion in Garland to decide the question whether an individual attorney who had violated applicable ethical requirements could escape disciplinary sanctions on the basis of a presidential pardon.

There is, moreover, language in Garland which significantly undermines Abrams’ reliance on that decision. After reasoning that the Act of Congress at issue “operate[d] as a legislative decree of perpetual exclusion” from the bar and that such “exclusion from any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment,” 71 U.S. at 377, the Court distinguished an exclusion of this sort from the authority of a court “to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed.” Id. at 379 (emphasis added) (quoting Ex parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856)). Upon entry of the order admitting them to practice, attorneys “become officers of the court, and are responsible to it for professional misconduct.” Id. at 378 (emphasis added). In Garland, however, the Act of Congress which effectively disbarred the respondent offended the principle that the right to practice law by one admitted to do so “is something more than a mere indulgence, revocable at the pleasure of the court, or at the command of the legislature. It is a right of which [the attorney] can only be deprived by the judgment of the court, for moral or professional delinquency.” 71 U.S. at 379 (emphasis added).

Considering the majority opinion in Garland in its entirety, we agree with the following statement by the New York Court of Appeals in In the Matter of-, An Attorney, 86 N.Y. 563 (1881), decided only fourteen years after Garland:

If, in a case like Ex parte Garland (supra), though we are far from intimating that such a supposition was possible in that case, it had been shown that an attorney used the rebellion, and aided it, for the purpose and with the effect of wronging his clients, the U.S. Supreme Court, we think, would not have ignored that act, to which the rebellious acts were ancillary, and while holding that the public offense was obliterated by the pardon, they would, in considering his application to be restored to the rolls of the court, have taken cognizance of his infidelity to his clientage.

Id. at 572-73.

Moreover, Abrams’ construction of Garland is inconsistent with the Supreme Court’s subsequent holding in Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914). Carlesi was found guilty in the courts of New York of the offense of forgery. He had previously been convicted in the United States District Court of selling and possession of counterfeit currency, but the President had pardoned him for the earlier crime. Notwithstanding the pardon, the judge in the state court case treated the pardoned offense as constituting a prior conviction. Accordingly, in conformity with a state sentence enhancement statute, the judge sentenced Carlesi as a second offender. Relying, inter alia, on Ex parte Garland, Carlesi contended that “[t]he President’s pardon obliterated the first offense,” so that Carlesi could not thereafter be prosecuted as a second offender. Id. at 53, 34 S.Ct. at 577. The Supreme Court held, however, that New York’s use of the pardoned federal conviction to enhance Carlesi’s sentence for the forgery did not constitute punishment for the pardoned earlier offense, and that “the contention as to the effect of the pardon here pressed [by Carlesi] is devoid of all merit....” Id. at 59, 34 S.Ct. at 578. The result in Carlesi cannot be reconciled with the notion that the presidential pardon “blot[ed] out” of existence the conduct that led to Carlesi’s federal conviction.

As noted by the court in North, the broad reading of the “blot[ting] out” language in Garland for which Abrams contends is also difficult to reconcile with the Supreme Court’s pre-Garland decision in Wilson and with its post-Garland reiteration of Wilson in Burdick. See North, supra, 62 F.3d at 1437. In addition, the Supreme Court of California has explained:

That the situation presented in the Garland Case was unique was recognized in Hawker v. New York, 170 U.S. 189, [198, 18 S.Ct. 573, 577, 42 L.Ed. 1002 (1898)] wherein it is stated that the Garland Case merely determined that: “One who has been admitted to practice the profession of the law, cannot be deprived of the right to continue in the exercise [thereof] by the exaction * * * of an oath as to * * * past conduct, respecting matters which have no connection with such profession.”[²⁰] The peculiar situation presented in the Garland Case is also recognized in State v. Haz-zard, supra, 247 P. [at 958], wherein it is stated that the Garland “decision has been robbed of much of its virility by later decisions of the court.”

In re Lavine, supra, 41 P.2d at 164.

Perhaps the most perceptive assessment of the portion of the Garland opinion on which Abrams relies was that of Judge Lehman, writing for a unanimous New York Court of Appeals:

Literally, of course, an executive pardon cannot “blot out of existence the guilt” of one who committed a crime. At most it can wipe out the legal consequences which flow from an adjudication of guilt. In Ex parte Garland, supra, the court gave to the presidential pardon no greater effect. The court decided only that “the effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offence of treason, committed by his participation in the Rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind.” 4 Wall. [71 U.S. at] 381. To illuminate a decision in which a bare majority of the court concurred and which was rendered while the passions roused by the rebellion still clouded the judgment of most citizens, the court used, appropriately enough, a metaphor; but metaphors cannot appropriately be used to justify a conclusion which would follow logically only if the metaphor were not a figure of speech but an accurate description.

Brophy, supra, 38 N.E.2d at 470.

At least since 1915, the federal and state courts have uniformly ruled that Professor WiUiston had it right and that the Supreme Court’s use of metaphor in the Garland opinion does not compel a contrary conclusion. We now adopt the prevailing view.²¹

IV.

THE SANCTION

As reflected in the concurring and dissenting opinions that follow, Judges Ferren, Sehwelb, and Farrell are of the opinion that Abrams should be suspended from practice for six months. Judge Ruiz would adopt the Board’s recommendation that Abrams be suspended from practice for one year. Judge King is of the opinion that Abrams should receive a public censure. Chief Judge Wagner and Judges Terry, Steadman, and Reid believe that the presidential pardon precludes this court from imposing any sanction at all.

There is thus no specific sanction which commands the support of a majority of the court. Public censure, however, is a less severe disposition than suspension from practice. Under the unusual circumstances here presented, and solely in order to enable the court to dispose of the case, the four judges who believe that Abrams should be suspended from practice have agreed that the sanction proposed by Judge King should be imposed. Accordingly, in conformity with D.C.Code § 11-2502 (1995), Elliott Abrams, Esq. is hereby publicly censured for professional misconduct.

So ordered.

SCHWELB, Associate Judge,

with whom FERREN and FARRELL, Associate Judges, join, concurring:

Although, solely for the reasons explicated in the opinion of the court, the three judges who subscribe to this concurring opinion have voted to impose a public censure, we believe that the appropriate sanction would be suspension from practice for six months. Our reasons for taking this position are set forth below.

A Scope of review.

The Board’s recommendation that Abrams be suspended for one year emerged from a somewhat unusual sequence of events during the course of the disciplinary process. At the conclusion of the hearing before the Hearing Committee, Bar Counsel — the prosecuting authority in disciplinary proceedings — proposed that Abrams be censured, but did not request that he be suspended from practice.

In a post-hearing brief, Bar Counsel modified his earlier recommendation and suggested a thirty-day suspension. The Hearing Committee, however, viewed Abrams’ conduct far more seriously. The Committee recommended that he be suspended for one year.

In his brief to the Board, Bar Counsel again recommended a thirty-day suspension, notwithstanding the Hearing Committee’s proposal. The Board, apparently after considerable reflection,¹ ultimately agreed with the Hearing Committee’s recommendation. One Board member, in dissent, proposed a six-month suspension instead. Bar Counsel now takes the position that, in light of the limited scope of our review of the Board’s proposed sanction, this court should follow the recommendation of the Board.

“In determining the appropriate order, the [c]ourt shall ... adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.” D.C. Bae R. XI § 9(g)(1). This court’s review of the Board’s proposed sanction is therefore deferential. As we show below, however, the facts before us are significantly different in kind from those in any of our prior cases. We agree with the Board that

[g]iven the wide-ranging precedents with respect to sanctions in dishonesty cases, the unusual nature of the wrongful conduct constituting the dishonesty here, and the unique combination of mitigating factors, it is apparent that setting the appropriate sanction here will require a high degree of subjectivity.

Where “this court has had little occasion [in the past] to pass upon conduct such as [that here] ..., our role in reviewing the Board’s recommendation may be more assertive than in more familiar types of misconduct.” In re Schneider, 558 A.2d 206, 211 (D.C.1989); accord, In re Reback, 513 A.2d 226, 230 (D.C.1986) (en banc). We should also give some consideration in our calculus to the fact that the Board’s recommended sanction is far more severe than that initially suggested by the prosecuting agency.

B. The seriousness of the misconduct.

The Hearing Committee, after analyzing the extensive record in this case in painstaking detail,² unanimously concluded that Abrams’ violations were extremely serious. The Committee found that on three separate occasions, Abrams “violated the most basic professional obligation of a lawyer — the pledge to maintain honesty and integrity.” The Committee further found that Abrams’ conduct

was knowing and willful and continued over a period of time. It was not an impulsive, isolated act_ [Abrams] ... knowingly allowed outside pressures and personal ideologies to suppress his ethical obligation to be honest and forthright.

The Committee described Abrams’ conduct as “a corruption of our governmental processes.”

After praising the Hearing Committee’s Report, the Board essentially adopted the Committee’s analysis. The Board concluded that “a serious violation has been committed in this case and that a serious sanction is warranted.” Abrams, according to the Board, “was not telling ‘little white lies’ in a social setting, nor was he exchanging quips in good-natured badinage.” Rather, his false testimony related to “urgent matters of vital public interest in an environment where his remarks were highly significant.” The Board was of the opinion that “lying to Congress does reflect on an attorney’s fitness to practice law.” (Emphasis in original).

Abrams contended that his Congressional testimony was not “practice-related.” The Board, citing In re Shorter, 570 A.2d 760, 767-68 (D.C.1990), and In re Kent, 467 A.2d 982 (D.C.1983), rejected the contention that lack of “practice-relatedness” precluded or substantially mitigated the imposition of sanctions. The Board further indicated that Abrams’ testimony was practice-related, in the sense that “a lawyer’s intentional and repeated lying in testimony before Congressional Committees is ... an adverse reflection on that lawyer’s fitness to practice law.” We agree with the Board. We also note that although Abrams did not formally appear before the committees in his capacity as an attorney, he was acting, in effect, as a representative of the government and defending its position. This activity, while often performed by non-attorneys, is not so very different, as a practical matter, from what lawyers do.

Abrams has acknowledged, at least implicitly, that his violations were serious. He testified that “the Senate Intelligence testimony was very bad testimony.” (Emphasis added.) He described as “a statement I should never have made” his representation that “we were not in the fund raising business.” Abrams has thus effectively conceded that some of his testimony was untrue and that he ought not to have made false representations to Congress.³

C. Mitigating factors.

Both the Hearing Committee and the Board recognized the presence in this case of significant mitigating factors. Some of these factors were of the traditional variety, while others were based on the unusually sensitive and difficult position in which Abrams found himself when he was called upon to testify before Congress.

The Board concisely summarized the first category of mitigating considerations as follows:

The Hearing Committee ... considered the more “traditional” mitigating factors— such as: (a) that [Abrams] had not had any prior discipline during 13 years of membership in the Bar; (b) that [he] had had a distinguished career in government service and in prior law practice; and (c) that [he] had cooperated with both the Congressional Iran-Contra inquiry and the Independent Counsel’s investigation[⁴] The Hearing Committee even felt it significant that Mr. Abrams’ actions “were not motivated by financial gain.”

The existence of these traditional mitigating factors is not in dispute, and we view them as significant.

Abrams has also cited the mitigating “context” in which he acted, and the Hearing Committee and the Board both gave sympathetic consideration to this concern. The Committee noted that Abrams was a

political appointee operating in a political environment and defending the President’s foreign policy against political opposition. Honesty in a political context is sometimes more nebulous than in the legal context.

(Footnote omitted).

The Hearing Committee also recognized that the subject matter of Abrams’ testimony dealt with “extremely sensitive intelligence information.” The Committee noted that on October 10, 1986, one of the members of the Senate Foreign Relations Committee mused rhetorically regarding whether it might be in the national security interest for the government to have a policy to lie about sensitive intelligence information. The Senator then stated, without contradiction from anyone present:

Well, I guess it seems to me that it probably is appropriate from time to time. I hate to say that. It goes against the grain for all of us.

The Hearing Committee also agreed “to a certain extent” with Abrams’ contention that “the Independent Counsel and Bar Counsel have reviewed his testimony under stricter criteria than [those which Abrams] believed were in effect (or which were in effect) when he testified.” The Committee stated, however, that “this is a matter which only should be considered in mitigation.”

The Hearing Committee took note of the fact that Abrams’ “misconduct and criminal convictions are well known across the country,” and that “this public humiliation is severe punishment in and of itself, particularly where a lawyer such as [Abrams] has had a distinguished career and where he highly values his reputation.” Abrams now argues, and we agree, that Abrams’ humiliation has been compounded by the fact that the wheels of justice have moved slowly in this case, which began more than a decade ago. It is also significant that during the intervening years, Abrams has incurred no further disciplinary charges.

Abrams contended before the Board that the Hearing Committee had not accorded sufficient weight to the mitigating factors that he had presented to the Committee. The Board rejected this contention and, at least implicitly, adopted the Hearing Committee’s analysis of the mitigating factors. Both the Committee and the Board concluded that these factors, significant as they were, were not sufficient to warrant a sanction less severe than suspension for one year.

D. The case law.

In its Report and Recommendation, the Board prepared an excellent synopsis of our precedents in cases of dishonesty. We quote that synopsis in its entirety.

Our precedents indicate that in dishonesty cases where there has not been a long-term pattern of misconduct, the range of sanctions goes from public censure to disbarment. At the “public censure” end of the continuum, we have In re Austern, 524 A.2d 680 (D.C.1987) (where the lawyer assisted his client in fraudulent conduct in connection with a real estate closing), and In re Hadzi-Antich, 497 A.2d 1062 (D.C. 1985) (where the lawyer made false statements on a resume). A 30-day suspension was ordered in In re Miller, 553 A.2d 201 (D.C.1989), even though there was significant mitigation evidence to offset the dishonest conduct (which involved the unauthorized search of law firm personnel files), and In re Schneider, 553 A.2d 206 (D.C. 1989) (where the lawyer altered his firm expense accounts to reimburse himself for expenses actually incurred). In In re Waller, 573 A.2d 780 (D.C.1990), the lawyer was suspended for 60 days for making misrepresentations to the Court to avoid being disqualified based on a conflict of interest. Three-month suspensions were ordered in In re Kennedy, 542 A.2d 1225 (D.C.1988) (where there was a misstatement concerning financial data on a bank application); In re Sandground, 542 A.2d 1242 (D.C.1988) (where the lawyer assisted his client in providing false interrogatory answers in a divorce proceeding); and In re Thomas, M-94-81 (D.C.1982) (where the lawyer lied at his own deposition and furnished a false interrogatory answer in a •pro se matter) [unpublished]. The lawyers in In re Reback, 513 A.2d 226 (D.C.1986) ten banc) were suspended for six months for forging their client’s signature on a complaint and filing it with the Court; but neglect was also involved.

Cases involving one-year suspensions are In re Kerr, 611 A.2d 551 (D.C.1992); In re Hutchinson, 534 A.2d 919 (D.C.1987) ten banc) (where the lawyer gave false testimony under oath to the SEC to conceal his own illegal insider trading); In re Thompson, 538 A.2d 247 (D.C.1985[1987]) (where the lawyer assisted his client in making false statements on an INS application); and In re Wild, 361 A.2d 182 (D.C.1976), where the lawyer made illegal campaign contributions. The Court’s recent decision in In re Shorter, 570 A.2d 760 (D.C.1990), involved illegal conduct that was also found to constitute dishonesty. In that case, the Court upheld disbarment of the lawyer for dishonest conduct surrounding his conviction for willful failure to pay taxes and willful tax evasion.

The Hearing Committee, which cited many of the above cases, found Abrams’ conduct most similar to that in Hutchinson and Wild. The Board added Shorter to the list, and stated that “in the context of sanctions imposed by the [c]ourt in cases like Hutchinson, Wild, and Shorter, it is difficult for us to see any basis for recommending a more lenient sanction than the Hearing Committee recommends.”

E. Analysis.

. We recognize that both the Hearing Committee and the Board approached the issue of the appropriate sanction responsibly and thoughtfully. We agree with much of each body’s analysis. Nevertheless, as we show below, this ease is quite unlike others which have been cited to us as precedents. We routinely defer to the Board as to sanctions, in part in order to avoid inconsistent dispositions for similarly situated respondents. Abrams’ situation is not similar to that of the respondents in the cases cited to us.

The Board and the Hearing Committee relied heavily on Hutchinson and Wild, but the present ease has a significant, even critical, feature which is absent from those eases. Abrams was testifying about highly sensitive matters affecting intelligence and, arguably, the national security. This made it very difficult for him to answer forthrightly and candidly all of the questions posed to him during the course of his testimony.

The case against Abrams rests, in substantial part, on his statements that he knew of no foreign government that was providing assistance to the Contras. In fact, Abrams was well aware of the contribution made by the Sultan of Brunei. Former Secretary of

State George Schultz advised the sentencing judge in Abrams’ criminal case, however, that “we had given a pledge of absolute confidentiality to that government.” It is surely understandable that Abrams was not ready to disclose publicly the Sultan’s role in the matter, in violation of that pledge, and thus to undermine the credibility of the United States.

The Board was of the opinion that

Mr. Abrams did not have to testify if he could not tell the truth. He could have resigned or taken the Fifth Amendment. He chose not to do so.

In our view, however, the matter is considerably more complex than that.

We discern no basis in the record for invocation by Abrams of the privilege against self-inerimination. Resignation was, of course, an option. For someone holding a position such as Assistant Secretary of State to resign, however, resignation obviously entails substantial costs to the pubic in terms of the continuity of government polcy. Moreover, such a course of action might have presented potential problems which are not readily resolved by a conclusory comment that Abrams “could have” given up his post.⁵

No comparable situation existed in Hutchinson or in Wild. Hutchinson had led under oath before the Securities and Exchange Commission to shield himself and a friend from potential criminal and civil labilty and to protect his own illegal profits. Hutchinson, 534 A.2d at 920-23. Wild made illegal corporate campaign contributions after being pressured to do so by a member of the Cabinet, and he led to and deceived the company’s shareholders in order to prevent pubic disclosure of a poltical gift by a corporation. Wild, 361 A.2d at 183.⁶ Neither case involved a situation in which candid disclosure would have compromised sensitive intel-ligenee information or imperiled the integrity of a pledge of confidentiality to a foreign government. No Senator would have volunteered that it might have been appropriate for Hutchinson or Wild to tell the lies they told. Rather, the dishonest conduct of the respondents in those cases was designed to prevent the disclosure of unlawful acts and to protect the respondents or their friends and associates.

Although one might fairly say that Abrams found himself between a rock and a hard place, we do not suggest that his dilemma excused his lying. His own admission that he gave “very bad” testimony implies that he could have done very much better. He surely knew, or should have known, before being called to testify, that he might be asked questions about matters as to which he would not wish to disclose the truth. If his superiors expected him to lie, then he should not have testified. We are persuaded, however, that the circumstances which we have discussed significantly mitigate his culpability and materially distinguish this case from Hutchinson and Wild.

In District of Columbia Bar v. Kleindienst, 345 A.2d 146 (D.C.1975) (en banc) (per curiam), Richard Kleindienst, Deputy Attorney General of the United States, who had been nominated for the position of Attorney General, falsely denied during his confirmation hearing, under oath, that anyone at the White House had attempted to influence the Department of Justice in relation to a pending antitrust suit. In fact, President Nixon had ordered Kleindienst to drop the matter. The Board recommended that Kleindienst be suspended from practice for one year. This court, however, ordered a thirty-day suspension. Subsequently, in Hutchinson, supra, we overruled Kleindienst as to sanction, implicitly holding that a longer suspension should have been imposed in that ease. Hutchinson, 534 A.2d at 927.⁷

Kleindienst is comparable to the present case in that if the respondent had been candid, his testimony would have seriously embarrassed the President. In light of that and other similarities,⁸ Hamilton P. Fox, III, the dissenting member of the Board, reasoned as follows on the basis of Kleindienst and Hutchinson:

If we assume that the [c]ourt’s ruling in Hutchinson signals us that [thirty] days was too lenient for Kleindienst and recognizing that [Abrams] lied on three different occasions before three separate Committees, I believe that a suspension for six months is the appropriate sanction.

As the Hearing Committee correctly stated, Abrams’ deception of Congress “was knowing and willful and continued over a period of time.” We agree with the Board that this is not a case of “little white lies” or of good-natured “badinage.” On the contrary, the record reflects serious misconduct. Having given careful consideration to the recommendation of the Board, as well as to the views of the Hearing Committee and to the arguments of counsel, we believe that Abrams should be suspended from the practice of law for a period of six months. Because there are only four votes for suspension rather than five, however, we join Judge King in ordering that Abrams be publicly censured.

1 . The facts are set forth in greater detail in Judge Terry’s opinion for the court in Abrams I, 662 A.2d at 868-71.

2 . We have italicized those portions of Abrams' testimony which were italicized in the criminal information which was subsequently filed against him.

3 . Clair E. George, then the Deputy Director of Operations of the Central Intelligence Agency.

4 . The Hearing Committee subsequently found that Abrams' statement that he knew nothing about the mechanisms for transferring money to the Contras was also false.

5 . The two counts of the information were based respectively on Abrams' testimony of October 10 and 14, 1986. Abrams was not charged with a crime in connection with his testimony of November 25, 1986, apparently because he appeared before the Senate Committee on December 8, 1986 and corrected his prior misleading testimony about Brunei.

6 . One member of the Board dissented in part and proposed a six-month suspension.

7 . Abrams' attorney effectively conceded at oral argument that the foregoing hypothetical is indistinguishable from the present case in terms of the effect of the pardon.

8 . "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”

Wilson, supra, 32 U.S. (7 Pet.) at 160 (emphasis added). The Supreme Court reiterated in Bur-dick v. United States, 236 U.S. 79, 91, 35 S.Ct. 267, 269, 59 L.Ed. 476 (1915) that the acceptance of a pardon implies a confession of guilt.

9 .Two of the three disciplinary charges against Abrams parallelled the allegations in the indictment, but the third, which was based on his testimony of November 25, 1986, arose out of conduct for which he has not been indicted. See note 5, supra.

10 . Disciplinary proceedings not being penal in nature, Abrams’ reliance on decisions holding that a pardon blots out the penal consequences of an offense, see, e.g., United States v. Klein, 80 U.S. (13 Wall.) 128, 147, 20 L.Ed. 519 (1871); United States v. Padelford, 76 U.S. (9 Wall.) 531, 543, 19 L.Ed. 788 (1869), is misplaced.

11 . In Kaufmann, the petitioner was pardoned after his disbarment, and was seeking reinstatement on the basis of the pardon. Judge Cardozo’s language is nevertheless revealing as to what a pardon can or cannot do.

12 . "Discipline" would have been a more accurate word than "punish.”

13 . The discussion in Grossgold of the effect of a pardon must be regarded as dictum in light of the court’s holding as to federal jurisdiction.

14 . In Burdick, the Court stated that "confession of guilt [is] implied in the acceptance of a pardon.” 236 U.S. at 91, 35 S.Ct. at 269. This statement was viewed by the court in Noonan as irreconcilable with the notion that a pardon "blots out” guilt. See also Nixon v. United States, 506 U.S. 224, 232, 113 S.Ct. 732, 737, 122 L.Ed.2d 1 (1993) (“the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is [a]n executive action that mitigates or sets aside punishment for a crime.”) (Emphasis in original) (quoting Black’s Law Dicitonary 1113 (6th ed.1990)).

15 . At least two of the state court decisions on which we have relied in this opinion involved presidential pardons. See People v. Brophy, 287 N.Y. 132, 38 N.E.2d 468, 469 (1941) cert. denied, 317 U.S. 625, 63 S.Ct. 62, 87 L.Ed. 506 (1942); In re Kaufmann, supra, 157 N.E. at 731. Moreover, we have found no indication in the case law that the effect of a gubernatorial pardon differs from that of a presidential one. Indeed, in North, our colleagues across the street relied on State v. Skinner, 632 A.2d 82, 85 (Del.1993), a decision of the Supreme Court of Delaware involving a gubernatorial pardon, as authority for its assessment of the effect of a presidential pardon; the court also alluded to the "state cases” cited in Skinner. North, supra, 314 U.S.App. D.C. at 105, 62 F.3d at 1437. Professor Williston cited federal and state court decisions as to the effect of a pardon more or less interchangeably. See, e.g., 28 Harv.L.Rev. at 653 n. 20.

16 . It has also been held that a pardon will not automatically restore a liquor license, Damiano, supra, 481 S.W.2d at 565-66, or a taxicab license, Baldi v. Gilchrist, 204 A.D. 425, 198 N.Y.S. 493, 495 (1st Dept. 1923), or a real estate broker’s or salesperson’s license, Stone v. Oklahoma Real Estate Comm’n, 369 P.2d 642, 645-46 (Okla.1962) (per curiam), because each of these occupations requires possession of good moral character or its equivalent.

17 . In Nelson, supra, the court distinguished Scott upon this very ground.

18 . Other cases which support our disposition include State v. Skinner, supra note 15; In re Beck, 264 Ind. 141, 342 N.E.2d 611, 614-15 (1976), and authorities there cited; Louisiana State Bar Ass’n v. Ponder, 263 La. 743, 269 So.2d 228, 230 (1972), cert. dismissed, 411 U.S. 901, 93 S.Ct. 1532, 36 L.Ed.2d 303 (1973); In re Wolfe’s Disbarment, 288 Pa. 331, 135 A. 732, 733-34 (1927); see also 7 C.J.S. Attorney & Client § 73, at 970-71 & n. 80 (1980 & Supp.1996).

19 . It is especially significant that, in North, the United States Court of Appeals for the District of Columbia Circuit viewed the relevant passage in Garland as dictum. It would be unseemly indeed for the "blotfting] out” language to be treated as binding precedent in the District of Columbia courts, but as non-binding in the federal courts sitting in the District of Columbia. We should therefore “treat [North] as persuasive authority both on the basis of its reasoning and in the interest of harmony between court systems and uniformity of result in the same geographic area.” Hornstein v. Barry, 560 A.2d 530, 536-37 n. 15 (D.C.1989) (en banc) (citation omitted).

20 . But notwithstanding Hawker, we should think that treasonable activities have some connection to an attorney’s moral character and with fitness for the practice of law.

21 . Abrams also relies on a number of other Civil War era Supreme Court cases in which the Court made broad statements regarding the effect of a pardon. In Knote v. United States, 95 U.S. 149, 24 L.Ed. 442 (1877), for example, a case involving a man pardoned following his "treason and rebellion,” the Court declared that the pardon “releases the offender from all disabilities imposed by the offence and restores him to all civil rights.” Id. at 153 (emphasis added). In Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), the Court held that a pardoned offender was competent to testify because "the disability to testify being a consequence ... of the judgment of conviction, the pardon obliterated that effect." Id. at 453-54, 12 S.Ct. at 294 (emphasis added). These and other like decisions cited by Abrams are distinguishable upon the common ground that each dealt with the consequences of conduct that was sanctionable solely because it was criminal. None of these cases involved a situation, such as that presented here, in which good moral character is a prerequisite for participation in the pardoned person's profession, and in which conduct incompatible with good moral character is subject to discipline whether or not it violates any criminal law.

1 . The Board's Report states that "the initial reaction of some Members was that the Hearing Committee's recommendation for a one-year suspension seemed overly harsh." This reaction was based in part on Abrams' forceful pro se argument and "the strong sense of sincerity and unfair treatment that he ably communicated.”

2 . The Board described the Hearing Committee’s report in this case as “a model of clarity and thoroughness.” We agree, and we take this opportunity to express our appreciation to Paul L. Knight, Esq., Chair of the Hearing Committee, and Susan L. Leighton, Esq. and Carolyn Kennedy, Esq., members of the Committee, for their conscientious efforts in an especially complex and difficult matter.

3 . Abrams claims — and the claim is not implausible — that his admission of wrongdoing reflects forthrightness and contrition on his part, and should therefore mitigate his sanction.

4 . The Independent Counsel, Lawrence Walsh, Esq., wrote a letter to Bar Counsel in which he stated that the imposition of disciplinary sanctions against Abrams would result in Abrams' being treated more severely than non-attorney defendants whose roles in the Iran-Contra affair were more culpable than Abrams’ role. The Board stated, however, and we reiterate that "|l]awyers have a greater duly than ordinary citizens to be scrupulously honest at all times, for honesty is basic to the practice of law.” In re Hutchinson, 534 A.2d 919, 924 (D.C.1987) (en banc) (citations omitted).

5 . The Board did not indicate when this hypothetical resignation could or should have been submitted. If Abrams had truthfully answered the Congressional inquiries about Saudi Arabian involvement, for example, but if he had then resigned upon being asked about Brunei, then the pledge of confidentiality to the Sultan would surely have been fatally undermined. Presumably, the Board believed that such a decision could or should have been made before Abrams testified, in order to avoid the possibility that he would have to choose between lying or disclosing sensitive information.

6 . Both Hutchinson and Wild were convicted of criminal offenses. Unlike Abrams, neither man was pardoned.

7 . Judge Ferren, who was a member of the Board at the time of the Kleindienst case and joined the recommendation that Kleindienst be suspended for one year, is of the opinion that the sanction then recommended by the Board was appropriate. Judges Schwelb and Farrell do not reach that question, except to reiterate this court's declaration in Hutchinson that a thirty-day suspension was inadequate — substantially inadequate, in our view.

8 . Kleindienst was confirmed as Attorney General and served in that capacity. Like Abrams, he had a distinguished record of prior public service. Like Abrams, he entered a plea of guilty to a misdemeanor. Unlike Abrams, however, Kleindienst did not receive a presidential pardon.

We do not suggest that avoidance in Klein-dienst of political embarrassment of the President was as legitimate and important a consideration as the preservation in this case of the integrity of an assurance of confidentiality to a foreign government. Indeed, we agree with Judge King, post, at 25 n. 2, that the present case is distinguishable from Kleindienst in significant respects. We cannot agree with Judge King, however, that public censure is a sufficient sanction for a lawyer who lied to Congress on three separate occasions on matters of substantial national importance. This case ought not to be equated with, e.g., In re Hadzi-Antich, supra, 497 A.2d at 1064-65, in which a lawyer was publicly censured for exaggerating his qualifications on his resume.