In re McBride

Decision Date21 January 1992
Docket NumberNo. 88-1563.,88-1563.
PartiesIn re Willard C. McBRIDE, Respondent.
CourtD.C. Court of Appeals

Michael S. Frisch, Asst. Bar Counsel, the Office of Bar Counsel, argued for petitioner. Thomas E. Flynn, Bar Counsel at the time the brief was filed, and Wallace E. Shipp, Jr., Deputy Bar Counsel, Washington, D.C., were on the brief, for petitioner.

Joseph M. Jones, Washington, D.C., for respondent.

Before ROGERS, Chief Judge, and FERREN, TERRY, STEADMAN, SCHWELB, FARRELL and WAGNER, Associate Judges, and BELSON,* Senior Judge.

FERREN, Associate Judge:

In this disciplinary case, we revisit three of our decisions—In re Willcher, 447 A.2d 1198 (D.C.1982); In re Kerr, 424 A.2d 94 (D.C.1980) (en banc); and In re Colson, 412 A.2d 1160 (D.C.1979) (en banc)—to review our prior holdings that (1) all crimes with a statutory element of "intent to defraud" are crimes involving moral turpitude per se, and (2) D.C.Code § 11-2503(a) (1989) requires disbarment for life upon conviction of a crime involving moral turpitude.

On August 31, 1988, respondent Willard C. McBride pleaded guilty in federal court to the misdemeanor of aiding and abetting a client, Mrs. Shahid, in violating 18 U.S.C. §§ 1028(a)(4) and (b)(3) (the knowing possession of false identification document with intent to use document "to defraud the United States").1 McBride, a member of the District of Columbia Bar since 1954 and a 28-year honored veteran of the Department of Justice, had retired in 1983 to become a solo practitioner. According to McBride's brief, his practice consisted of many pro bono referrals from his church, including a request that he help Mrs. Shahid and her two young children, immigrants from Pakistan, change their immigration status from visitor to resident alien. With McBride's assistance, Mrs. Shahid's petition to change her immigration status was conditionally granted. But as she made preparations to fly to Pakistan to appear personally at the United States Consulate there, she grew fearful that some snag in the process would prevent her from returning to the United States and would require her to stay in Pakistan where her physically abusive ex-husband resides. She panicked and pleaded with McBride to help her obtain an American passport to use to reenter the United States in case her new immigration status was not approved. McBride helped Mrs. Shahid provide the passport office with two identification documents that belonged to a third person. McBride accompanied her to that office and remained with her as she applied for and picked up the passport. McBride received no financial or any other benefit from his actions, all of which occurred within four days. On the other hand, he has never disputed that he knew his conduct was dishonest and designed to secure for Mrs. Shahid a passport to which she was not entitled.

On November 2, 1988 a federal magistrate, after noting that McBride's acts were "aberrational" and that he had "let his heart carry his head," sentenced McBride to one year of probation, imposed a fine of $25 plus the estimated $1,000 cost of probation, and ordered "100 hours of community service, preferably in the legal community."

On March 7, 1989, this court issued an order suspending McBride from the practice of law because he had been convicted of a "serious crime" within the meaning of D.C.Bar R. XI § 10(b).2 We also directed the Board on Professional Responsibility to initiate formal proceedings to determine the proper sanction and specifically "to review the elements of the crime ... for the purpose of determining whether or not the crime involves moral turpitude within the meaning of D.C.Code § 11-2503(a)."3

On July 28, 1989 the Board issued its report, concluding that 18 U.S.C. § 1028(a)(4) was a crime involving moral turpitude per se and recommending that McBride be disbarred for life pursuant to D.C.Code § 11-2503(a), supra note 3; see Kerr, 424 A.2d at 99. A division of this court accepted the Board's analysis and ordered McBride permanently disbarred on July 18, 1990. See In re McBride, 578 A.2d 1102, 1103 (D.C.1990). We granted McBride's petition for rehearing en banc in order to address several issues that continue to cause concern among lawyers, judges, and the public at large.

We now remand to the Board for further proceedings. We conclude, after reviewing the disciplinary history under Colson, that no conviction of a misdemeanor may be deemed a conviction of a crime involving moral turpitude per se, even though that misdemeanor may be properly characterized as a "serious crime," see supra note 2, and may be held to involve moral turpitude on the facts of the case. We also overrule Kerr, concluding that D.C.Code § 11-2503(a) no longer shall be construed to require disbarment of an attorney for life upon conviction of a crime involving moral turpitude.

I.

D.C.Code § 11-2503(a) (1989) requires disbarment of any attorney convicted of a crime involving moral turpitude. In Colson, we announced procedures the Board on Professional Responsibility should follow in determining whether a crime involves moral turpitude. We required, as a first step, that the Board examine the underlying elements of the offense with a view to determining whether the statute, on its face, involves moral turpitude or instead may involve moral turpitude, if at all, only in certain instances. See Colson, 412 A.2d at 1164-65; see Board Rules 10.1 and 10.2. In the latter case, the attorney was held to be entitled to a full evidentiary hearing to explore whether the criminal conduct itself (as opposed to conviction for violating the criminal statute as such) involved moral turpitude. See Colson, 412 A.2d at 1165.4 But a hearing was not required, or even permitted, when a statute on its face involved moral turpitude —commonly referred to as moral turpitude per se—because a guilty plea or guilty verdict was taken as conclusive evidence of all the underlying elements of the offense. See id. at 1164.

We applied Colson's analysis in Willcher, where we held that any crime having "intent to defraud" as an essential element would be a crime involving moral turpitude per se. See Willcher, 447 A.2d at 1200.5 In the present case, the Board, as well as McBride, notes that Colson and Willcher have resulted in "widely disparate treatment of attorneys whose misconduct is within the range of comparability." REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY, IN THE MATTER OF WILLARD C. McBRIDE (July 28, 1989) at 22 (reprinted at 578 A.2d 1102, 1111 (D.C. 1990) (hereafter BOARD REPORT).6 McBride argues that such application of Colson/Willcher contravenes D.C.Bar Rule XI § 9(g),7 which requires comparable sanctions for comparable misconduct.

More specifically, McBride questions the application of Willcher's "intent to defraud" rule to this case. He argues that a violation of 18 U.S.C. § 1028(a)(4)—despite referring to an "intent to defraud"—does not inherently involve moral turpitude because (1) the Board must, but did not, examine the entire statute, not an isolated subsection, before finding moral turpitude, and, in any event, (2) an exclusive focus on the "intent to defraud" language of a statute sweeps too broadly by mandating disbarment upon conviction under many statutes, such as 18 U.S.C. § 1028(a)(4), that do not manifestly involve moral turpitude because "defraud" has a different meaning from its common law meaning used in Willcher.

A.

In analyzing McBride's case under Colson/Willcher, the Board examined the statutory elements of 18 U.S.C. §§ 2 and 1028(a)(4) to determine whether his crime was among those that inherently involve moral turpitude. The Board first concluded that under 18 U.S.C. § 28 McBride had been "the party who aids or abets the offense and therefore `is guilty under the statute as a principal.'" BOARD REPORT at 11 (quoting United States v. Raper, 219 U.S.App.D.C. 243, 251, 676 F.2d 841, 849 (1982)). According to the Board, under federal caselaw a conviction for aiding and abetting a crime means that the aider and abettor was found to have had the specific intent to facilitate the commission of a crime by another, BOARD REPORT at 12-13, and that every element of the underlying offense allegedly committed by the other person was established. See id. at 13 (quoting Raper, 219 U.S.App.D.C. at 251, 676 F.2d at 849).9

The Board then examined the elements of 18 U.S.C. § 1028(a)(4) and concluded that Mrs. Shahid knowingly possessed either a counterfeit or false identification document and thus "intended to defraud the United States." Because McBride's conviction indicated that he had "guilty knowledge" of Mrs. Shahid's criminal venture and had the specific intent to facilitate her commission of a crime involving "intent to defraud the United States," McBride's conviction was for a crime which involved a "knowing intent to defraud." BOARD REPORT at 16. Under the controlling precedent of Willcher, therefore, the Board concluded that McBride had been convicted of a crime involving moral turpitude per se. Id.

McBride argues that the Board's ruling demonstrates the shortcomings of a Willcher-type analysis—an analysis which, in practice, compels a mechanical search through the wording of a statute for the telltale phrase "intent to defraud." The hazards of this approach, he says, are clearly revealed in cases such as this where the only subsection of the statute that contains the words "intent to defraud"—sub-section (a)(4), see supra note 1—is also the least serious of the offenses spelled out in the statute. The harshest maximum penalties under § 1028—five-years and three-years of imprisonment, respectively—are reserved for defendants engaged in the business of manufacturing, 18 U.S.C. § 1028(a)(1), obtaining in bulk, id. § 1028(a)(3), or trafficking in false or bogus documents, id. § 1028(a)(2). See supra note 1. Because, however, none...

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