In re Allen

• Decision Date: 08 September 2011
• Docket Number: No. 06–BG–958.,06–BG–958.
• Citation: 27 A.3d 1178
• Parties: In re Claude A. ALLEN, Respondent.A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 433601).
• Court: D.C. Court of Appeals

27 A.3d 1178

In re Claude A. ALLEN, Respondent.A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 433601).

No. 06–BG–958.

District of Columbia Court of Appeals.

Argued Feb. 22, 2011.Decided Sept. 8, 2011.

Beth A. Stewart, Washington, DC, for respondent.H. Clay Smith, III, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.Before BLACKBURNE–RIGSBY and THOMPSON, Associate Judges, and RUIZ, Associate Judge, Retired.^*RUIZ, Associate Judge:

Respondent, Claude A. Allen, was arrested in Montgomery County, Maryland and charged with misdemeanor theft of property. After his guilty plea in Maryland Circuit Court, Bar Counsel initiated disciplinary proceedings in this jurisdiction. The Board on Professional Responsibility determined that respondent's conviction did not involve moral turpitude, and it recommended that respondent be suspended from the practice of law for one year and ordered to show proof of restitution as a condition of reinstatement. Bar Counsel filed an exception, and asks us to order respondent's disbarment. For the reasons that follow, we decline Bar Counsel's request and instead adopt the recommendations of the Board.

I. Factual Posture

Respondent was admitted to the Bar of the District of Columbia Court of Appeals on July 10, 1992, by motion.¹ On October 29, 2005, respondent stole a Bose stereo, valued at $525, from a Target store in Gaithersburg, Maryland; on December 24, 2005, respondent stole a Kodak printer, valued at $237, from a Target store in Montgomery County, Maryland; and on January 1, 2006, respondent stole an RCA stereo, valued at $88, from a Target store in Rockville, Maryland. The thefts were accomplished through a scheme of purchase and fraudulent return: respondent would purchase the item with a credit card and exit the store with the item; he would thereafter return to the same store or to a nearby store with the receipt but without the item, select an identical item from the shelf, and “return” that item using the original receipt. In the end, respondent had both the item he originally purchased and the money he received when he “returned” it. Respondent was arrested on January 2, 2006, for theft of property from the Target Corporation at a Target store in Gaithersburg, Maryland. On August 4, 2006, he pleaded guilty in the Circuit Court of Montgomery County, Maryland, to misdemeanor theft of property under $500, in violation of Md.Code Ann., Crim. Law § 7–104(a) and (b). ² The same day, the court sentenced respondent to two years of supervised probation, forty hours of community service, and fines and costs totaling $625.

On August 21, 2006, Bar Counsel submitted respondent's guilty plea to the clerk of this court, as required by D.C. Bar R. XI, § 10(a).³ Upon Bar Counsel's motion, we referred the matter to the Board on Professional Responsibility, which in turn referred the case to a hearing committee to determine whether respondent's “conviction involve[d] moral turpitude on the facts in light of any aggravating or mitigating circumstances” and to determine the appropriate discipline.⁴ On December 28, 2007, Bar Counsel filed a Specification of Charges, alleging in Count I that respondent violated Rules 8.4(b) and 8.4(c) of the District of Columbia Rules of Professional Conduct, and alleging in Count II that respondent had been convicted of a “serious crime” as defined by D.C. Bar R. IX, § 10(b).

At the Hearing Committee's initial meeting on March 28, 2008, both parties introduced exhibits and a joint stipulation of facts. In the joint stipulation, respondent admitted that he committed the December 24 theft (the theft for which he pleaded guilty and was convicted), and he agreed that if the case had gone to trial, the prosecution would have shown that he committed all three thefts. After determining that it required a more developed record, the Committee continued the hearing until April 28, 2008, so as to receive live testimony. At the April 28 hearing, the committee heard testimony from respondent; respondent's psychiatrist, Dr. Thomas Goldman; and Detective David Hill of the Montgomery County Police Department. Respondent testified that at the time of the thefts, he was an Assistant to the President of the United States for Domestic Policy, advising the president on domestic issues and tasked with leading the White House response to Hurricane Katrina. He stated that he was married, had four children, and that his family moved at least five times in the eight months before October 2005, when the string of thefts began. Respondent explained that he would shop after work or before work to provide a buffer between his work and home lives and to relieve stress. Dr. Goldman, an expert in forensic psychiatry, testified that respondent “qualifie[d] for a diagnosis of kleptomania ... but ... a more accurate diagnosis would be an adjustment disorder with mixed disturbance of emotions and conduct.” He explained that respondent's conduct was born out of the extraordinary stress of his job: “I think that, because he was in a state of high stress, that his ability to appreciate that this [conduct] was out of character for him and his ability to control his actions I think was substantially impaired....” At the conclusion of the hearing, Bar Counsel proposed that the Hearing Committee find that the conduct involved moral turpitude and that respondent be disbarred; in the alternative, Bar Counsel proposed that respondent be suspended for 90 days if the Committee determined his conviction did not involve moral turpitude.

On November 19, 2008, the Committee issued its Report and Recommendation. The Committee found that respondent had “engaged in a fraudulent return scheme to deprive Target of its property on at least three occasions.” It also found each witness to be “generally unpersuasive” due to inconsistencies in their testimony and lack of corroboration; ⁵ however, the Committee credited the witnesses' testimony to the extent it aligned with the facts in the joint stipulation submitted by the parties. In support of mitigation, the Committee found that respondent had an “unsettled private life” caused by his family's five moves over eight months in 2005; that he had a “grueling” work schedule—working from 5 a.m. to 10 p.m.—in the weeks after Hurricane Katrina; that respondent “identified closely” with the suffering of those harmed by the hurricane; ⁶ that respondent faced “significant” pressure from his employment; that he had cooperated fully in the disciplinary matters in the District, Maryland and Pennsylvania and had completed the suspensions in these jurisdictions; and that he had been “an active role model in the community,” had no history of prior arrests or bar discipline and had displayed “significant remorse” for his actions and apologized. The Committee determined that respondent had violated Rules 8.4(b) and 8.4(c) by committing the theft by fraudulent means, but that his actions did not amount to moral turpitude. It considered the mitigating factors in respondent's case, and recommended that respondent be suspended from the practice of law for 90 days, after noting that respondent had been suspended for 90 days by the Bars of Virginia and Pennsylvania.

Bar Counsel filed an exception with the Board, arguing that respondent's actions evidenced moral turpitude because they were “a well thought out and well-executed scheme marked by stealth and deception.” Respondent's opposition asserted that the facts of the case negated an inference of moral turpitude. In its Report and Recommendation, issued on March 9, 2010, the Board adopted the facts and credibility determinations of the Hearing Committee, with minor modifications.⁷ The Board noted that respondent's conduct “unquestionably” violated Rules 8.4(b) and 8.4(c). However, the Board also determined that Bar Counsel had failed to prove by clear and convincing evidence that respondent's thefts were for personal gain, and therefore Bar Counsel had failed to show that respondent's actions involved moral turpitude. The Board rejected the 90–day suspension recommended by the Hearing Committee, which it found too lenient in light of the “particularly serious” nature of conduct that involves “deceit, dishonesty or misrepresentation,” and the “repeated and calculated” nature of respondent's misconduct. Instead, the Board recommended that respondent be suspended for one year and that his reinstatement be conditioned on making restitution to the Target Corporation. Bar Counsel filed an exception to the Board's Report.

II. Moral Turpitude

Bar Counsel argues on exception that the Board erred in failing to find that respondent's criminal conduct involved moral turpitude because the theft involved intentional dishonesty for personal gain. Thus, Bar Counsel asserts, the appropriate sanction would be disbarment pursuant to D.C.Code § 11–2503(a). Respondent contends that the Board “properly applied the precedents of this Court to conclude that Bar Counsel failed to establish moral turpitude by clear and convincing evidence.” Respondent urges us to adopt the one-year suspension recommended by the Board.

“[T]he scope of our review of the Board's Report and Recommendation is limited.” In re Berryman, 764 A.2d 760, 766 (D.C.2000). In reviewing a recommendation of the Board, “the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record....” D.C. Bar R. XI, § 9(h)(1); see In re Cleaver–Bascombe, 986 A.2d 1191, 1194 (D.C.2010). However, “the Board's final determinations, whether they are characterized as findings of ultimate fact or conclusions of law, are owed no deference; our review is de novo.” In re De Maio, 893 A.2d 583, 585 (D.C.2006). Whether criminal conduct involves moral turpitude is such an ultimate fact...