Matter of Kerr

424 A.2d 94

• Court: District of Columbia Court of Appeals
• Decided: November 17, 1980
• Docket: M-37-80
• Status: Published

Opinions

HARRIS, Associate Judge:

This matter is before the court for our consideration of the “Findings and Recommendations of The Disciplinary Board” with respect to a petition for reinstatement to active practice as a member of the bar of this court. Petitioner Elaine W. Kerr’s disbarment arose from her conviction in the United States District Court for the District of Columbia of mail fraud, 18 U.S.C. § 1341 (1970), an offense involving moral turpitude. Consistent with our decision in In re Colson, D.C.App., 412 A.2d 1160 (1979) (en banc), we adhere to the statutory mandate of D.C.Code 1973, § ll-2503(a). That statute initially requires disbarment of an attorney who has been convicted of an offense involving moral turpitude. We view the statute as precluding reinstatement, and conclude that the petition for reinstatement must be denied. The recommendation that the petitioner be conditionally reinstated accordingly is not adopted.¹

I

In a ten-count indictment filed on June 23, 1970, Kerr and a codefendant were charged with fraud by mail and wire, 18 U.S.C. §§ 1341, 1343 (1970), interstate transportation of stolen property, 18 U.S.C. § 2314 (1970), forgery and uttering, D.C. Code 1973, § 22-1401, and larceny after trust, id., § 22-2203. Petitioner is an attorney who then was licensed to practice in Maryland, Virginia, and the District of Columbia.² She was charged in essence with involvement in a scheme to defraud two persons — one, a client; the other, someone for whom she had acted as trustee — in connection with a real estate investment scheme operated by her codefendant.³ On September 10, 1971, she entered an Alford plea to count one of the indictment which alleged fraud by mail and wire.⁴ She was sentenced to two years’ imprisonment, with a minimum of six months to be served.⁵ Execution of the sentence was suspended for 30 days to give petitioner the opportunity to make restitution.⁶ Meanwhile, the trial court denied petitioner’s motion to withdraw her guilty plea. The United States Court of Appeals for the District of Columbia Circuit affirmed the trial court’s ruling. In 1973, the Supreme Court denied her petition for a writ of certiorari.⁷

As a result of her conviction, petitioner was disbarred seriatim in each jurisdiction in which she had been admitted to practice. She was disbarred by the Circuit Court of Fairfax County, Virginia, on November 9, 1971; by the United States District Court for the District of Columbia on February 5, 1974 (following a suspension order of September 27, 1972); by the Court of Appeals of Maryland on October 25, 1974; and by this court on May 18, 1977, by order effective nunc pro tunc to November 22, 1972, the date of her suspension under D.C.App.R.XI, § 15(1).⁸

On March 9, 1978, petitioner applied to this court for reinstatement.⁹ In the proceedings which followed, she expressed her intent to relocate to the District of Columbia from Falls Church, Virginia, and to seek employment here.¹⁰

In her testimony before the hearing committee which was designated by The Disciplinary Board to consider her petition for reinstatement, petitioner presented a picture of rehabilitation. Subsequent to her conviction, she had received graduate degrees in psychology. At the time she filed her petition, she was enrolled in a post-doctoral residency program in clinical psychology at the Maryland State Mental Hospital. Her doctoral dissertation effectively combined the disciplines of law and psychology. She received clinical experience at St. Eliza-beths Hospital and has testified as an expert witness in psychology at the request of attorneys familiar with her background. She thus has successfully undertaken a new career.

The hearing committee was troubled, nonetheless, by petitioner’s “confusion about the ethical implications of her criminal acts.”¹¹ As she had done from the time she filed her motion to withdraw her guilty plea, petitioner persisted in asserting her innocence of any wrongdoing.¹² Nor, seemingly, was she aware that she had violated any ethical constraints by virtue of her conduct. See note 11, supra. In fact, she testified that she had not read the Code of Professional Responsibility “in the last year or two, or maybe in the last four years.” Consequently, the hearing committee recommended that petitioner be reinstated only after establishing that she had completed a course in legal ethics. The Disciplinary Board adopted the findings and recommendations of the hearing committee in their entirety. However, based upon the statute which specifically applies to petitioner’s case, we rule otherwise.

II

D.C.Code 1973, § ll-2503(a), provides:

When a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude, and a certified copy of the conviction is presented to the court, the court shall, pending final determination of an appeal from the conviction, suspend the member of the bar from practice. Upon reversal of the conviction the court may vacate or modify the suspension. If a final judgment of conviction is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and he shall thereafter cease to be a member. Upon the granting of a pardon to a member so convicted, the court may vacate or modify the order of disbarment.

“To be sure, the statute is mandatory in its terms.” In re Colson, supra, 412 A.2d at 1164; accord, Laughlin v. United States, 154 U.S.App.D.C. 196, 199 n.3, 474 F.2d 444, 447 n.3 (1972), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1973). The finality of petitioner’s conviction, coupled with the Board’s finding of moral turpitude,¹³ compelled her disbarment under the clear language of the statute.¹⁴ That she was convicted of a federal felony, rather than a local offense, is immaterial. See, e. g., In re Hopfl, 48 N.Y.2d 859, 400 N.E.2d 292, 424 N.Y.S.2d 350 (1979); Muniz v. State, 575 S.W.2d 408 (Tex.Civ.App.1978). Nor is the statutory provision any less operative by reason of her Alford plea. Although she thereby did not technically admit guilt, she nonetheless stood convicted of a felony. In re Hopfl, supra.¹⁵ Moreover, under the statute, her disbarment is permanent. To repeat, § 11-2503(a) states in part:

If a final judgment of conviction is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and he shall thereafter cease to be a member. [Emphasis added.]

See, e. g., MacKinnon v. Ferber, 16 N.J.Super. 390, 395, 84 A.2d 647, 649 (1951) (statute which compels forfeiture of right to drive thereafter upon second conviction of drunken driving means permanent forfeiture “for such is the force of the word ‘thereafter’ ¹⁶

A similar statute in New York has been so construed.¹⁷ Judiciary Law § 90, subd. 4, provides:

Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.

Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be struck from the roll of attorneys.

In denying a petition for reinstatement following disbarment under that provision, the court in In re Sugarman, 64 App.Div.2d 166, 409 N.Y.S.2d 224 (1978), noted that the attorney involved had presented a persuasive case for considering his reinstatement. Nonetheless, said the court, the statute left it powerless to reinstate a convicted felon absent either the reversal of his conviction or a pardon. Accord, In re Glucksman, 57 App.Div.2d 205, 394 N.Y.S.2d 191 (1977) (in absence of either a reversal or pardon, attorney disbarred under the statute has no legal basis for seeking reinstatement); People v. Buckles, 167 Colo. 64, 453 P.2d 404 (1968) (en banc) (statute declaring that a person convicted of felony will be disqualified. from practicing as an attorney precludes reinstatement). Similarly, our statute expressly provides for only one situation in which a disbarment order may be modified or vacated, namely, in the event of a pardon. We do not have the statutory authority to reinstate an attorney who has been convicted of an offense involving moral turpitude.

We reject the argument, advanced both in petitioner’s brief and in the brief of Bar Counsel on behalf of the Board’s recommendation (which recommendation, incidentally, was made prior to our decision in the Colson case), that the statute represents an unconstitutional infringement on the inherent authority of this court over attorney discipline. While D.C.Code 1973, § 11-2501, gives us authority over the admission of attorneys to the bar as well as over their censure, suspension, and expulsion, it is silent with respect to readmission or reinstatement. The only rational interpretation of the word “admission” in that statute is “original admission.” Thus, our inherent authority in no way conflicts with our obligation under § ll-2503(a) to disbar permanently an attorney who has been convicted of an offense involving moral turpitude. The cases cited by petitioner (and by Bar Counsel) in support of their constitutional challenge are inapposite; they are all state cases in which the courts derived their authority from their respective state constitutions.

“The District of Columbia is constitutionally distinct from the States.” Pal-more v. United States, 411 U.S. 389, 395, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973). This court and the Superior Court of the District of Columbia were created pursuant to the plenary power of Congress to legislate for the District of Columbia as provided in Art. I, § 8, cl. 17 of the Constitution. Accordingly, in this unique jurisdiction, unlike the states, Congress has the constitutional authority to “vest and distribute the judicial authority in and among courts and magistrates, and [to] regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the constitution of the United States.” Palmore, supra, at 397, 93 S.Ct. at 1676, 36 , quoting from Capital Traction Co. v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873 (1899). When exercising this Article I authority, Congress is not constrained by the separation of powers considerations which operate within the states. Consequently § ll-2503(a) is constitutional, as we implicitly recognized when we applied it in Colson.

Concluding as we do that the statute makes disbarment for conviction of an offense involving moral turpitude both mandatory and permanent in all cases in which a pardon has not been granted, petitioner’s application for reinstatement to the bar of this court is denied.¹⁸

So Ordered.

1 . The Board recommended that the petitioner be reinstated upon her showing that she had successfully completed a course in legal ethics and responsibility given by an accredited law school or a recognized continuing legal education program.

2 . Petitioner attended law school in Maryland, and was admitted to the bar in that state in 1958. She subsequently was admitted on motion to the bar of the United States District Court for the District of Columbia in 1960, to the Virginia bar in 1961, and to the bar of this court in 1972.

3 . He, too, was a client of sorts. She represented one of his corporations in the District of Columbia; apparently it was not the corporation that held title to the Virginia real estate implicated in the fraudulent investment scheme.

4 . See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

5 . Petitioner served approximately nine months in a federal reformatory, from April 1973 to January 1974.

6 . Although the record fails to specify the exact amount involved, it is clear that petitioner and her codefendant defrauded their two victims of many thousands of dollars. In the disciplinary hearing which preceded her disbarment by this court, petitioner asserted that the total amount involved was less than $60,000. At her reinstatement hearing, however, she made reference to civil judgments awarded against her in favor of the two complaining witnesses in her criminal proceeding; those judgments, later discharged by petitioner in bankruptcy, totalled $105,000.

7 . Petitioner’s collateral attack on her conviction under 28 U.S.C. § 2255 (1970) was equally unsuccessful.

8 . Rule XI, § 15(1), provides in pertinent part:

Upon the filing with the Court of a certified copy of the court record (e. g., docket entry showing verdict or finding) demonstrating that an attorney has been found guilty of a serious crime ..., the Court shall enter an order immediately suspending the attorney, whether the finding resulted from a plea of guilty or nolo contendere or from a verdict after trial or otherwise, and regardless of the pendency of an appeal, pending final disposition of a disciplinary proceeding to be commenced upon such finding.

9 . Under D.C.App.R.XI, § 21(2), a person who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment.

10 . As best we can determine, she has not sought reinstatement elsewhere and her disbarment status continues unaltered in Maryland, Virginia, and the federal courts of this jurisdiction.

11 . As the committee noted in its Findings of Fact, “ [petitioner's initial reaction to questions whether she violated the canons was a flat denial. When pressed- or when specific Code provisions were related to specific acts, she relented somewhat, reluctantly acknowledging a ‘moral’ but not a ‘legal’ violation, ‘some’ responsibility, ‘more of a social responsibility’ and the like.” (Transcript references omitted.)

12 . The hearing committee which recommended her initial disbarment to the Board gave little credence to her declarations of innocence. In its report to The Disciplinary Board, that committee commented:

Respondent’s [Kerr’s] own descriptions of selected circumstances about the crime for which she was convicted tend to minimize her participation therein and her culpability. However, the description of respondent’s activity in Count One of the indictment to which she entered a guilty plea sharply contrasts with her protestations of passivity and of no more than limited or nominal participation in criminal deeds.

Although willing to consider mitigating circumstances, if any existed, the committee properly refused to retry her criminal case.

13 .The hearing committee which earlier had recommended petitioner’s disbarment concluded that her conduct was clearly within the definition of misconduct prohibited by the Disciplinary Rules of the Code of Professional Responsibility, particularly DR 1-1P2(A)(3) and (4) which proscribe, respectively, “illegal conduct involving moral turpitude that adversely reflects on [one’s] fitness to practice law” and “conduct involving dishonesty, fraud, deceit, or misrepresentation.” The Board, in turn, had adopted those conclusions. We note also that the Court of Appeals of Maryland, in ordering petitioner’s disbarment in the state in which she originally was admitted, found that her fraud conviction involved moral turpitude.

14 . Although petitioner’s disbarment by this court was not explicitly predicated upon §11-2503(a), in her brief she presumes that implicitly we acted under the authority of the statute as well as under our inherent supervisory powers.

15 . Cf. D.C.App.R.XI, § 15(3), which provides:

A certified copy of the court record of a guilty finding of an attorney for any crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding instituted against him based thereon.

16 . Cf. Webster’s definition of “thereafter” as “after that: from then on.” Webster’s Third New International Dictionary (1976 ed.).

17 . We noted the similarity between the New York statute and our own in Colson, supra, 412 A.2d at 1T65 n.8.

18 . While our decision turns on the mandatory effect of the statute, we note also that permanent disbarment is not an unduly harsh form of discipline in any event for an attorney whose felony conviction directly related to a client’s funds, see The Florida Bar v. Mattingly, 329 So.2d 9 (Fla.1976) (attorney so convicted permanently barred from reinstatement), and who “use[d] h[er] legal skills to defraud.” in re Raimondi and Dippel, 285 Md. 607, 614, 403 A.2d 1234, 1237 (1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 705, 62 L.Ed.2d 669 (1980) (petitions for reinstatement denied, the court being “unwilling to once again constitute them officers of this Court, thereby placing them in a position where they may handle the affairs of others.” Id., at 620, 403 A.2d at 1241). As the United States District Court for the District of Columbia has stated:

The Court feels that when one of its officers charged with the “privileged administration of a public trust” violates that trust, violates his professional and other responsibilities, and commits a felony involving a client’s funds, he conclusively and finally destroys the bond of confidence which must exist between a court and himself. The Court does not believe that it could ever repose in the respondent the confidence which the Court must feel in its officers if the Court is to function honorably, efficiently and effectively. If an attorney’s honesty has been successfully impugned, the Court feels that he should no longer be permitted to practice before it. [In re Williams, 158 F.Supp. 279, 281 (D.D.C.1957) (three-judge court), aff'd, 103 U.S.App.D.C. 174, 256 F.2d 888 (1958).]