412 A.2d 1160 (D.C. 1979), S-24-74/D-27-78, Matter of Colson

Docket Nº:S-24-74/D-27-78.
Citation:412 A.2d 1160
Party Name:In the Matter of Charles W. COLSON, a Member of the Bar of the District of Columbia Court of Appeals.
Case Date:March 23, 1979
Court:Court of Appeals of Columbia District
 
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Page 1160

412 A.2d 1160 (D.C. 1979)

In the Matter of Charles W. COLSON, a Member of the Bar of the District of Columbia Court of Appeals.

No. S-24-74/D-27-78.

Court of Appeals of Columbia District

March 23, 1979

Argued April 14, 1978.

Opinions Filed July 3, 1979.

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John W. Douglas, Washington, D. C., appointed by the court, amicus curiae.

Charles H. Morin, Washington, D. C., for respondent.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER [*], YEAGLEY, HARRIS *, MACK and FERREN, Associate Judges.

KELLY, Associate Judge:

On June 3, 1974, respondent Charles W. Colson, former White House Aide and Special Counsel to then President Richard M. Nixon, pleaded guilty before Judge Gerhard Gesell of the United States District Court for the District of Columbia to a violation of 18 U.S.C. s 1503 (1970), a felony. [1] Respondent

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was subsequently sentenced to a prison term of one to three years and fined $5,000. [2] Upon receipt of a certificate of his conviction, this court by an order dated June 28, 1974, suspended respondent from the practice of law pursuant to D.C.App. R. XI, Sec. 15(1). [3] The matter was then referred to the Disciplinary Board [4] where formal proceedings were instituted before a hearing committee. The hearing committee unanimously recommended to The Board that respondent be disbarred. A majority of four members of The Board voted instead to suspend respondent for a period of five years. The three dissenting members voted for disbarment. Thereafter, this court denied the motions of respondent and Bar Counsel to dispense with argument and the filing of briefs and appointed amicus curiae to advocate the view of the minority members of The Board before the en banc court. See Amended D.C.App. R. XI, Sec. 8.

The information to which respondent pleaded guilty charged that, while serving as Special Counsel to the President of the United States, respondent:

On or about June 28, 1971, and for a period of time thereafter, in the District of Columbia and elsewhere . . . unlawfully, willfully and knowingly did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with the criminal trial of Daniel Ellsberg under indictment in the case of United States v. Russo, Criminal Case No. 9373, United States District Court, Central District of California, by devising and implementing a scheme to defame and destroy the public image and credibility of Daniel Ellsberg and those engaged in the legal defense of Daniel

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Ellsberg, with the intent to influence, obstruct, and impede the conduct and outcome of the criminal prosecution then being conducted in the United States District Court for the Central District of California.

The aforesaid scheme by which CHARLES W. COLSON, the DEFENDANT, unlawfully, willfully and knowingly did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with the criminal prosecution of Daniel Ellsberg consisted of the following acts:

(1) In July and August 1971, the DEFENDANT and others unnamed herein, endeavored to and did release defamatory and derogatory allegations concerning one of the attorneys engaged in the legal defense of Daniel Ellsberg for the purpose of publicly disseminating said allegations, the known and probable consequences of which would be to influence, obstruct, and impede the conduct and outcome of the criminal prosecution of Daniel Ellsberg.

(2) In July and August 1971, the DEFENDANT, and others unnamed herein, endeavored to obtain, receive and release confidential and derogatory information concerning Daniel Ellsberg, including information from the psychiatric files of Daniel Ellsberg, for the purpose of publicly disseminating said information, the known and probable consequences of which would be to influence, obstruct, and impede the conduct and outcome of the criminal prosecution of Daniel Ellsberg. [5]

More specifically, the evidence presented before the hearing committee indicates that the release to the public of the "Pentagon Papers" by Daniel Ellsberg in June 1971, aroused the intense anger and concern of President Nixon. The President stated to respondent that he wanted the leaks of sensitive information stopped no matter what the cost. Respondent was instructed to encourage congressional hearings, and to disseminate material to the news media that would "expose" Ellsberg and his motives. Respondent undertook the assignment willingly. [6]

The Board found respondent's conduct to have explicitly violated Disciplinary Rules 1-102(A)(3) and 1-102(A)(5). [7] Having concluded that the offense here involved moral turpitude, see Disciplinary Rule 1-102(A)(3), The Board recommended respondent's suspension from the bar of this court. Because of legislative fiat, however, we are precluded from adopting The Board's recommendation.

D.C.Code 1973, s 11-2503(a) provides:

When a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral

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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. (Emphasis supplied.)

A valid guilty plea acts as both a conviction of the offense charged and as an admission of all material facts alleged by the government. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See Curtis v. United States, D.C.App., 268 A.2d 603 (1970). Hence respondent's conviction became final as soon as Judge Gesell sentenced him upon his plea. The finality of the conviction coupled with The Board's finding of moral turpitude requires the disbarment of respondent as mandated by the clear language of the statute.

To be sure, the statute is mandatory in its terms. 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). Yet, there has been some concern expressed as to whether such legislation can be reconciled with the due process rights of the attorney in question. It is elementary that a fundamental requirement of due process is notice that apprises the interested parties of the pendency of the action and affords them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The same principles apply to disbarment proceedings. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1866); In re Wild, D.C.App., 361 A.2d 182, 184 (1976).

The notice requirement is fully satisfied in a case such as this by the language of this court's order of suspension which precedes the action before The Board, and the filing of a Petition Instituting Formal Disciplinary Proceedings with The Board. The suspension order here was the standard order issued by this court pursuant to D.C.App. R. XI, Sec. 15, and stated, inter alia, that respondent's suspension was to "remain in effect pending further order of this Court following final disposition of the disciplinary proceeding to be commenced by the Disciplinary Board."

As provided in amended D.C.App. R. XI, Sec. 7(2) (and as was done in the instant case), Bar Counsel institutes formal disciplinary proceedings "by the filing of a petition with the Board . . . which shall be sufficiently clear and specific to inform the respondent of the alleged misconduct. A copy of the petition shall be served upon the respondent."

As for the attorney's opportunity to be heard, D.C.Code 1973, s 11-2503(a) in effect makes such a hearing necessary. Even though the statutory language is mandatory in nature, a determination must be made as to whether the offense giving rise to the conviction involved moral turpitude. However, a distinction must be drawn here between offenses which manifestly involve moral turpitude by virtue of their underlying elements, and those which do not. An attorney is subject to disbarment under the statute for his conviction of a crime involving moral turpitude, not for his commission of an act involving moral turpitude. The threshold focus of the statute, then, is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense. The Board, therefore, must make an initial determination as to whether the attorney's crime inherently involves moral turpitude. If The Board decides that it does, that is the end of the inquiry; The Board must recommend disbarment.

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If the particular crime at issue has not been considered by this court, then the attorney may brief and argue the moral turpitude question at the hearing before The Board. Once, however, we have made a final determination that a crime involves moral turpitude, The Board must adhere to that ruling, with the result that the hearing at The Board level shall be limited to the question whether the certificate of conviction used in this court's order of suspension (or otherwise provided to The Board) establishes that the attorney, in fact, has been convicted of the crime charged. [8]

In this case, while The Board found...

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