In re Perrin

• Decision Date: 10 August 1995
• Docket Number: No. 90-BG-997,93-BG-344.,90-BG-997
• Citation: 663 A.2d 517
• Parties: In re Richard P. PERRIN, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

663 A.2d 517

In re Richard P. PERRIN, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

Nos. 90-BG-997, 93-BG-344.

District of Columbia Court of Appeals.

Argued June 28, 1995.

Decided August 10, 1995.

Leonard H. Becker, Bar Counsel, Washington, DC, for Office of Bar Counsel.

Alan F. Holmer, Washington, DC, for respondent.

Before SCHWELB, FARRELL, and RUIZ, Associate Judges.

SCHWELB, Associate Judge:

The Board on Professional Responsibility has recommended that Richard P. Perrin be suspended from the practice of law for three years, nunc pro tunc to August 16, 1990. Neither Bar Counsel nor Perrin has filed an exception to the Board's Report and Recommendation. Perrin having been disbarred in New York, and a Hearing Committee having recommended disbarment in the District of Columbia, a close question is presented as to whether he should also be disbarred in this jurisdiction. On balance, however, we adopt the recommendation of the Board.

I.

For a period of approximately five years ending in 1986, enterprises run by one John Galanis, a convicted felon, defrauded thousands of investors of millions of dollars in connection with a series of real estate ventures. Galanis' role in these ventures was concealed from the investors, and false promises and representations were made with regard to their financial prospects.

Perrin provided legal services to Galanis and his enterprises, first as a partner of a prominent District of Columbia law firm and subsequently as a member of a new firm— Mason, Perrin & Kanofsky—which Perrin had helped to found, and of which he was a "name" partner. The extended controversy regarding Perrin's activities, which has now been addressed by courts and disciplinary authorities both in New York and in the District, has centered upon Perrin's role in Galanis' fraudulent activities, and specifically on the question whether Perrin knew (or deliberately shielded himself from knowledge) of the false representations made by Galanis and his associates in relation to the real estate offerings.¹

On March 12, 1990, after a grand jury had returned a 105-count indictment against him and others, Perrin entered a plea of guilty in New York to a single misdemeanor violation of § 352(c)(2) of that state's General Business Law. Specifically, Perrin admitted that he had participated in a scheme to obtain money by making "promises and representations as to the future, which were beyond reasonable expectation and unwarranted by existing circumstances."² On June 20, 1990, the judge sentenced Perrin to imprisonment for one year and fined him $17,500. Perrin served over five months at the Rikers Island Correctional Facility.

On August 16, 1990, this court suspended Perrin from practice pending final disposition of the proceedings against him and directed the Board on Professional Responsibility to determine whether Perrin's offense involved moral turpitude. On May 3, 1991, the Board concluded that the offense did not involve moral turpitude per se,³ but referred the case to a Hearing Committee for a full evidentiary hearing, with directions, inter alia, to determine whether Perrin's actual conduct involved moral turpitude and to recommend appropriate discipline.

After completing his investigation, but before the proceedings before the Hearing Committee began, Bar Counsel and Perrin "struck a deal"⁴ under which Bar Counsel was to charge Perrin solely with a violation of the disciplinary rule prohibiting dishonesty. It was further agreed that Perrin would admit to the charge, that Bar Counsel would recommend Perrin's suspension from practice until this court reinstated Perrin,⁵ and that Perrin would not object to this recommendation.⁶ Perrin agreed to waive certain defenses in regard to the scope of his plea in New York. An essential feature of the agreement was that the parties would present a limited evidentiary record, focused upon Perrin's conviction in New York.

In conformity with this agreement, Bar Counsel charged Perrin with having violated former DR 1-102(A)(4) ("conduct involving dishonesty, deceit and misrepresentation") and Perrin formally admitted that violation. The Committee held a hearing in January and February 1993 at which Perrin and others testified, and it then took the case under advisement. On March 8, 1993, shortly after the completion of the hearing but prior to the Hearing Committee's decision, Perrin was disbarred by the Appellate Division of the Supreme Court of New York on the basis of his conviction in that state of a "serious crime."⁷

The Hearing Committee's comprehensive and thoughtful report was issued on March 29, 1994. The Committee found that Perrin was not a credible witness, and that Perrin's "self-serving claims that he was totally deceived by the principals of Galanis' enterprises," were "not believable." The Committee also rejected Perrin's claim that "he is innocent of any wrongdoing and pleaded guilty only out of exhaustion and desperation."

The Committee stated that it did not believe that Perrin "intended to defraud anyone, or knew that a fraud was occurring." (Emphasis in original.) The Committee also found that Perrin's conduct was not characterized by "baseness, vileness or depravity," and concluded that, "on balance," it did not involve moral turpitude. Nevertheless, the Committee recommended disbarment because, inter alia, Perrin had admitted "conduct involving dishonesty, deceit and misrepresentation" in violation of DR 1-102(A)(4), because his actions constituted "serious dishonest conduct," and because he was involved, in the course of practicing his legal specialty, in an illegal scheme that resulted in the loss of millions of dollars to innocent investors.

Perrin's attorney filed exceptions to the Hearing Committee's report and, on November 8, 1994, the Board issued its Report and Recommendation.⁸ The Board agreed with the Committee that moral turpitude had not been shown by clear and convincing evidence, but disagreed with the recommendation that Perrin be disbarred. The Board recommended, instead, that Perrin be suspended for three years, nunc pro tunc to August 16, 1990, which was the date on which he was initially suspended following his conviction in New York.⁹

II.

No party filed an exception to the Board's Report pursuant to D.C.Bar R. XI, § 9(e). Nevertheless, in light of the difficulty of the questions presented, this court set the case for oral argument on the regular calendar. Bar Counsel, who appeared personally, and Perrin's attorney both urged the court to impose the sanction recommended by the Board. No opposing position was presented, although the forceful opinion of the Hearing Committee provided the court with an alternative point of view.

In In re Goldsborough, 654 A.2d 1285 (D.C.1995), we recently addressed the applicable scope of review:

Turning to the question of the proper sanction, we are required to

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.Bar R. XI, § 9(g). The deferential standard mandated by this provision becomes even more deferential where, as here, the attorney has failed to contest the proposed sanction.

Id. at 1288. In this case, neither Perrin nor Bar Counsel opposes the Board's recommendation. The lack of any dispute among the litigants does not, however, vitiate the court's responsibility to do justice. Id. n. 6 (citation omitted).

Although we find much with which we can agree in the Board's literate submission, we are constrained to express our disagreement with some of the reasoning which led the Board to make its recommendation. The Board stated that it was accepting, as on this record it was required to accept, see In re Shillaire, 549 A.2d 336, 342 (D.C.1988), the Hearing Committee's factual findings and credibility determinations, but there appears to be some question whether it really did so. The Board, for example, apparently credited Perrin's claim that he believed that Galanis was merely a consultant, and found support for that position in the testimony of Perrin's partner, Helen Kanofsky; the Hearing Committee, which heard the witnesses, found both Perrin and Ms. Kanofsky to be lacking in credibility, and in particular "did not find Respondent's testimony that he had not known that Galanis played a role requiring disclosure to be persuasive." The Board asserted that Perrin "has cooperated fully in the disciplinary proceeding and in the investigation of his former clients," without noting in this regard the Hearing Committee's laconic finding that Perrin was not a "particularly credible" witness.¹⁰ The Board found that "Respondent has admitted his guilt and expressed his remorse"; but the Hearing Committee, which heard Perrin testify, see Shillaire, supra, 549 A.2d at 343, found that he was now essentially claiming, notwithstanding his guilty plea, "that he is innocent of any wrongdoing and pleaded guilty only out of exhaustion and desperation."

We also disagree with the Board's apparent view that Perrin's guilty plea may well be consistent with innocence, and therefore is not especially significant.¹¹ Recently, in In re L.L., 653 A.2d 873 (D.C.1995), we rejected a trial court's similar assessment of a litigant's guilty plea, notwithstanding the fact that the judge in that case had the opportunity to hear the litigant's testimony and assess his credibility. In the present case, the Hearing Committee, which heard from Perrin directly, rejected the self-serving explanation of the plea which the Board appeared to accept, and the reasoning of In re L.L., applies a fortiori. See also Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977) ("solemn declarations of guilt in open court carry a strong presumption of verity").

In light of the foregoing, we have scrutinized the Board's recommendation with...