In re Sharp, 92-BG-1493

• Decision Date: 28 March 1996
• Docket Number: 93-BG-1374,94-BG-227 and 94-BG-524.,No. 92-BG-1493,92-BG-1493
• Citation: 674 A.2d 899
• Parties: In re Stephen A. SHARP, Petitioner.
• Court: D.C. Court of Appeals

674 A.2d 899

In re Stephen A. SHARP, Petitioner.

Nos. 92-BG-1493, 93-BG-1374, 94-BG-227 and 94-BG-524.

District of Columbia Court of Appeals.

Submitted August 3, 1995.

Decided March 28, 1996.

Stephen A. Sharp, pro se.

Leonard H. Becker, Bar Counsel, and Michael S. Frisch, Senior Assistant Bar Counsel, filed a brief for the Office of Bar Counsel.

Before SCHWELB and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

Respondent, an attorney licensed to practice law in Virginia and the District of Columbia, was convicted in Virginia of a number of felonies, including, upon his plea of guilty, taking indecent liberties with a child by a person in custodial or supervisory relationship, in violation of VA.CODE ANN. § 18.2-370.1 (Michie 1988 Repl.).¹

The Board on Professional Responsibility (the "Board") recommends that the court disbar respondent pursuant to D.C.Code § 11-2503(a) (1995 Repl.), which requires disbarment "when a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude...."

Respondent, in addition to arguing that his conviction under VA.CODE ANN. § 18.2-370.1 is not a crime involving moral turpitude per se, contends that disbarment both in and of itself and/or pursuant to § 11-2503(a) violates the due process and double jeopardy clauses of the fifth amendment as well as the excessive fines clause of the eighth amendment. We find none of these arguments persuasive.

The procedures for determining moral turpitude under § 11-2503(a) satisfy due process requirements. In re Colson, 412 A.2d 1160, 1164-65 & n. 8, 1167-68 (D.C. 1979) (en banc); In re McBride, 602 A.2d 626, 629 & n. 4 (D.C.1992) (en banc) (upholding Colson's due process findings). See also In re Campbell, 572 A.2d 1059, 1061 (D.C. 1990) (a determination that conviction for a crime of moral turpitude obviates the need for extensive hearings).

Similarly, no substantive due process violations arise from disbarment pursuant to § 11-2503(a). Respondent, by virtue of his D.C. Bar membership, agreed to uphold and abide by the duties imposed by the D.C. Bar Rules, including the duty "at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law." See D.C. Bar R. XI, § 2(a) (1995). Whereas an act can constitute misconduct whether or not it occurred in the course of an attorney-client relationship, D.C. Bar R. XI, § 2(b), respondent's conviction represents misconduct deserving of disbarment.

Moreover, disbarment resulting from an attorney's conviction of a crime deemed to involve moral turpitude does not violate the constitutional proscription against double jeopardy. Attorney Grievance Comm'n v. Andresen, 281 Md. 152, 389 A.2d 159, 161 (1977); In re Crooks, 51 Cal.3d 1090, 275 Cal.Rptr. 420, 427, 800 P.2d 898, 905 (1990) (citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), for the premise that double jeopardy applies only in criminal proceedings). "The traditional view of Anglo-American jurisprudence is that disbarment is intended not as punishment, but as protection to the public...." Andresen, supra, 389 A.2d at 161 (quoting Maryland State Bar Ass'n v. Sugarman, 273 Md. 306, 329 A.2d 1, 7 (1974), cert. denied, 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975)).

Finally, respondent argues that the excessive fines clause is applicable to civil sanctions, relying upon Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (holding that drug-related forfeiture of property, "constituted payment to a sovereign as punishment for some offense and did not serve solely a remedial purpose"). Respondent failed to discuss the aforementioned in the text of his initial brief to the court, and raised it only in a footnote devoid of legal argument. Even if we were to consider his argument on the merits under these circumstances, disbarment does not involve the payment of cash by way of fines or taxes and is not punishment. See In re Steele, 630 A.2d 196, 200 (D.C.1993). Thus, respondent's contention fails.

Having disposed of respondent's constitutional concerns, we further conclude that the definition of a crime involving moral turpitude per se, i.e., one that "offends the generally accepted moral code of mankind" and constitutes "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man," Colson, supra, 412 A.2d at 1168 (internal citations omitted), was satisfied in this case by Mr. Sharp's conviction for sexually abusing someone over whom he exercised authority. For the reasons set forth in the Report and Recommendation of the Board,² a copy of which is attached to this opinion, we agree that respondent has been convicted of a crime involving moral turpitude.³ Accordingly, respondent is hereby disbarred from the practice of law in the District of Columbia effective immediately. See D.C. Bar R. XI, § 14(f) (1995).

So ordered.

ATTACHMENT

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of STEPHEN A. SHARP Respondent.

Docket Nos. 238-92, et al.

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

Respondent is a member of the Bars of the District of Columbia and the State of Virginia. He is subject to multiple suspension orders in this jurisdiction due to his criminal convictions and to reciprocal discipline proceedings.

Respondent was suspended by Order of the Court of Appeals for the District of Columbia on January 7, 1993, pursuant to Rule XI, § 10(c) due to his conviction in Virginia of three felonies (aggravated sexual battery and two counts of crimes against nature) (Bar Docket No. 238-92). He was subsequently disciplined in Virginia and on November 1, 1993, was suspended by Order of the Court of Appeals for the District of Columbia pursuant to Rule XI, § 11(d) (Bar Docket No. 407-93). Respondent then pled guilty to another felony (taking indecent liberties with a child by a person in a custodial or supervisory relationship), which resulted in a second Virginia disciplinary action revoking his license to practice. On March 23, 1994, he was suspended by Order of the Court of Appeals for the District of Columbia pursuant to Rule XI, § 11(d) (Bar Docket 84-94). On May 16, 1994, he was suspended by Order of the Court of Appeals for the District of Columbia due to his second felony conviction in Virginia pursuant to Rule XI, § 10(c) (Bar Docket No. 208-94).

These matters are all before the Board for a determination whether any one of Respondent's convictions is a crime involving moral turpitude per se and whether reciprocal discipline should be imposed. Based on the following, the Board recommends that Respondent be disbarred pursuant to D.C.Code § 11-2503(a) for a conviction of moral turpitude — taking indecent liberties with a child by a person in a custodial or supervisory relationship.

BACKGROUND

On September 4, 1992, Respondent was convicted after jury trial of one count of aggravated sexual battery and two counts of crimes against nature.¹ He was sentenced to a total five years in prison on the three charges with a court recommendation that he receive sex offender treatment. On October 20, 1992, Respondent pleaded guilty to one count of taking indecent liberties with a child by a person in custodial or supervisory relationship, in violation of Va.Code § 18.2-370.1.² Respondent was sentenced to five years in prison, with three years suspended, conditioned on good behavior, and 10 years of probation.

Following his first conviction, Respondent was disciplined by the Virginia State Bar Disciplinary Board ("Virginia Board") and his license to practice law in the Commonwealth of Virginia was revoked effective September 17, 1993. Respondent was not present, in person or through counsel, during this proceeding. Although the Virginia Board order does not specify and there is no written opinion, Bar Counsel was advised that the basis for the revocation was Respondent's conviction of aggravated sexual battery and two counts of crimes against nature.

Subsequently, the Virginia Board held a hearing on both Respondent's initial conviction as well as his plea to a violation of Va.Code § 18.2-370.1. Respondent was represented by counsel, and the Virginia Board received live testimony from a colleague at Respondent's former law firm. On January 7, 1994, the Virginia Board issued a written opinion regarding all of Respondent's convictions and revoked Respondent's license effective September 17, 1993. The Virginia Board concluded that it was immaterial that Respondent's criminal acts did not arise out of his practice of law.

Respondent appealed the decision of the Virginia Board. On September 30, 1994, the Supreme Court of Virginia issued an order affirming the judgment of the Virginia Board.

DISCUSSION

Bar Counsel takes the position that neither aggravated sexual battery nor crimes against nature are crimes of moral turpitude per se.³ Bar Counsel further asserts that the offense of taking indecent liberties with a child by a person in a custodial or supervisory relationship is a crime involving moral turpitude per se. Respondent argues that none of his convictions constitute a crime involving moral turpitude per se. He also challenges the constitutionality of the disciplinary system's process for determining the application of section 11-2503(a) upon a finding of moral turpitude per se without an evidentiary hearing on the facts. The Board concurs with Bar Counsel that the crime of taking indecent liberties with a child by a person in a custodial or supervisory relationship is an offense involving moral turpitude per se and recommends that Respondent be disbarred pursuant to D.C.Code §...