In re Sims, 98-BG-1384.

• Decision Date: 10 November 2004
• Docket Number: No. 98-BG-1384.,98-BG-1384.
• Parties: In re Nathaniel SIMS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

861 A.2d 1

In re Nathaniel SIMS, Respondent.

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

No. 98-BG-1384.

District of Columbia Court of Appeals.

November 10, 2004.

Joyce E. Peters, Bar Counsel, with whom Elizabeth A. Herman, Senior Assistant Bar Counsel, was on the motion to vacate remand order, for the Office of Bar Counsel.

Elizabeth J. Branda, Executive Attorney, was on the petition for rehearing and response to the motion of Bar Counsel to vacate remand order, for the Board on Professional Responsibility.

Samuel McClendon was on the motion for leave to file substitute motion in opposition to Bar Counsel's motion to vacate court order, for respondent.

Before TERRY and REID, Associate Judges, and KING, Senior Judge.

KING, Senior Judge:

This case is before us a second time. When we last considered it, we said that Nathaniel Sims ("Sims") had pled guilty to conflict of interest under 18 U.S.C. §§ 208 and 216(a)(1), a misdemeanor offense, which had been determined to be a non-serious misdemeanor. In re Nathaniel Sims, 844 A.2d 353, 357 (D.C.2004)("Sims I"). After receiving notice of Sims's conviction, Bar Counsel filed a specification of charges alleging that his conduct violated Rules 8.4(b), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct, and also that his conviction for a crime of moral turpitude constituted grounds for disbarment pursuant to D.C.Code § 11-2503(a). The hearing committee found a violation of Rules 8.4(b), 8.4(c), and 8.4(d), but concluded, as a matter of law, that a non-serious misdemeanor could never support a finding of moral turpitude. The Board disagreed on the latter point, ruling that on the facts presented Sims's conduct constituted moral turpitude.

In Sims I we held that this non-serious misdemeanor could constitute an offense involving moral turpitude, depending on the underlying facts. We then directed the Board to remand the case to the hearing committee, to permit it to determine if the facts adduced at the hearing were sufficient to establish that Sims's conduct constituted moral turpitude under the standards we set forth. (See In re Tucker, 766 A.2d 510, 513 (D.C.2000)

; In re Sneed, 673 A.2d 591, 594 (D.C.1996); In re McBride, 602 A.2d 626, 632 (D.C.1992) (en banc); In re Colson, 412 A.2d 1160 (D.C.1979) (en banc)).

Bar Counsel has moved to vacate our remand order advising that the hearing committee that originally conducted the hearing is no longer constituted, and that it would be impossible to reconstitute the original committee because two of the members that conducted the hearing are no longer on any hearing committee. Bar Counsel argues that our order would necessitate a remand on a closed record to a new hearing committee which would undermine the disciplinary system's policy of having hearing committees make factual determinations in the first instance, including consideration of the demeanor of the witnesses. In re Micheel, 610 A.2d 231, 237 (D.C.1992).

We agree with Bar Counsel that, because the original hearing committee is no longer in existence, a remand to a hearing committee is not practicable. Accordingly, we grant the motion to vacate the order to remand and reach the issue of whether Sims's conduct constitutes moral turpitude.¹ We conclude, as did the Board, that Sims's conduct constituted moral turpitude, and accordingly order that Sims be disbarred.

Sims pleaded guilty to one count of conflict of interest, 18 U.S.C. § 208, a misdemeanor. In Sims I, we said that "although certain crimes, including misdemeanors [whether determined to be `serious' or `non-serious'], may not be denoted crimes of moral turpitude per se, they may constitute crimes of moral turpitude under `the circumstances of the transgression.'" 844 A.2d at 361 (quoting In re McBride, supra, 602 A.2d at 635). We have defined moral turpitude as an act that (1) offends the generally accepted moral code of mankind; (2) is one 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 customary rule of rights and duties between man and man; or (3) is conduct contrary to justice, honesty, modesty or good morals. Colson, 412 A.2d at 1168 (citations omitted).² The Board concluded that Sims's "repeated abuse of the trust placed upon him as a government employee in order to benefit himself financially satisfies the Colson criteria for moral turpitude". We are satisfied that the Board's Report and Recommendation was consistent with the legal principles we set forth both in Sims I and in this opinion, and therefore, we will defer to the Board's recommendations. See In re Romansky, 825 A.2d 311, 318 (D.C.2003)

; In re Goffe, 641 A.2d 458, 463-64 (D.C.1994); In re Hutchinson, 534 A.2d 919, 924 (D.C.1987) (en banc); In re Haupt, 422 A.2d 768, 771 (D.C.1980).

The hearing committee found that during the period when the conduct in question occurred Sims was employed by the District of Columbia Bureau of Traffic Adjudication ("BTA") as a hearing examiner. In that capacity, Sims would hear disputes relating to violations of parking laws. While he had the authority to dismiss citations brought before him, BTA had a policy that prohibited a hearing examiner from adjudicating a ticket which he or a member of his family had been issued. The hearing committee's factual findings included the following:

The [FBI] investigation revealed that on 20 occasions between October 5, 1995 and January 31, 1997, [Sims] dismissed citations issued to vehicles registered to him, his wife, and two of his daughters. [Sims] effected the dismissals by logging into the BTA computer system with his identification code and secret password. With respect to a majority of those tickets, he used a disposition code for the dismissed tickets that reflected that a hearing examiner other than himself adjudicated the tickets.

As a result of these actions by [Sims], he and his family avoided paying fines and late penalties in the amount of $ 1,280.

Sims I, supra, 844 A.2d at 358.

After conducting a hearing where it examined witnesses, including Sims, and considered documentary evidence, the hearing committee concluded that Sims had violated Rules 8.4(b), 8.4(c), and 8.4(d) and found that he dismissed a large number of tickets in which he or members of his family had a personal financial interest; that Sims acted for his own personal enrichment; that he did so in his official capacity; that the conduct occurred over an extended period of time; that Sims was familiar with the Board of Traffic Adjudication ("BTA") policy of precluding adjudication of matters that affect BTA employees; that Sims's acts were not the result of inexperience or a proven psychological condition. Sims did not contest the facts underlying these acts. Finally, although Sims testified that he had not used the disposition codes of other adjudicators to dismiss some of the tickets, the hearing committee found that the evidence clearly indicated that Sims had in fact used the disposition codes of the other adjudicators.³

The facts and circumstances of this case are very similar to those in In re Tucker, supra, 766 A.2d at 510.⁴ In Tucker, an attorney was convicted of attempted bribery, a misdemeanor, for engaging in a pattern of behavior designed to "fix" parking tickets. Tucker paid money to an official employed in the traffic violation adjudication department who, as part of his official authority, manipulated the computer records to make it appear that the tickets had either been paid in full or were never issued. Tucker paid the money to the employee in his personal capacity which meant the District was deprived of funds to which it was entitled. The Board found that Tucker's misconduct was "so at odds with his responsibility as a citizen and member of the bar that it deeply offended the general moral sense of right and wrong." Id. at 512.

In Tucker, the hearing committee found and we agreed, that the attorney's actions clearly involved "intentional dishonesty for personal gain" and that under our case law such a finding constituted moral turpitude. See In re Sneed, 673 A.2d at 594

(citing In re Untalan, 619 A.2d 978, 979 (D.C.1993); In re Shorter, 570 A.2d 760, 765 (D.C.1990); In re Kent, 467 A.2d 982, 984 (D.C.1983)). We concluded that the attorney's conduct warranted disbarment.

The facts in Tucker are essentially the same as what occurred here: the underlying conduct in both cases involved an attorney engaging in a scheme to "fix" multiple parking tickets, and, in both cases the attorney was convicted of a misdemeanor. The only difference between the cases is that in Tucker the attorney paid a BTA employee to modify the computer records, while here Sims, as the BTA employee, manipulated the records himself for his own gain. We see no real distinction in the nature of the conduct involved. Therefore, we conclude that Sims's conduct, like Tucker's, involved moral turpitude.

Our dissenting colleague argues that the disposition in this case is inconsistent with two other cases where the attorneys were convicted of misdemeanors, but there was no finding of moral turpitude. See In re Abrahamson, 852 A.2d 949 (D.C.2004)

; In re McBride, 642 A.2d 1270 (D.C.1994) (McBride III). We do not agree. The facts in those cases were significantly different from what occurred here. For example, as a government employee with adjudicative responsibilities, Sims held a position of considerable trust — a trust he violated repeatedly. In contrast, there was no special trust placed in either Abrahamson or McBride. Moreover, Sims's misconduct occurred at least 20 times while the misconduct of both Abrahamson and McBride consisted of a single incident. Finally, the Board found that Sims acted "to benefit himself financially," while Abrahamson had "no personal motivation to profit," and McBride's "acts were not motivated for personal...