In re Sneed

• Decision Date: 29 February 1996
• Docket Number: No. 92-BG-1390.,92-BG-1390.
• Citation: 673 A.2d 591
• Parties: In re Thuryo A. SNEED, Respondent, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

673 A.2d 591

In re Thuryo A. SNEED, Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 92-BG-1390.

District of Columbia Court of Appeals.

Argued December 13, 1994.

Decided February 29, 1996.

Alan S. Novins, with whom Lee Ellen Helfrich, Washington, D.C., was on the brief, for respondent.

Michael S. Frisch, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel, was on the brief, Washington, D.C., for the Office of Bar Counsel.

Before TERRY and RUIZ, Associate Judges, and PRYOR, Senior Judge.

TERRY, Associate Judge:

The Board on Professional Responsibility ("the Board") has recommended that respondent, a member of our bar, be disbarred under D.C.Code § 11-2503(a) (1995) on the ground that he was convicted of a crime involving moral turpitude. Respondent, noting that he was convicted of only a misdemeanor, argues that his crime was not one of moral turpitude, and that the standard for disbarment under D.C.Code § 11-2503(a) is unconstitutionally vague. We find no merit in these arguments, and therefore we adopt the recommendation of the Board.

I

Respondent, Thuryo Sneed, was admitted to the District of Columbia Bar in February 1981.¹ At the time of his disciplinary violation, Sneed lived in Texas and was employed by Trailways Lines, Inc., as a vice president for industrial relations. Before joining Trailways, he had been employed as an attorney by the United States Department of Labor.

In the latter part of 1985, Sneed received a series of telephone calls from John S. Truesdell, Jr., a friend and former colleague at the Department of Labor. Truesdell, who was still working for the Department, first called Sneed to ask for his help in obtaining legal services for his daughter, who had been arrested on a criminal charge. When Sneed told Truesdell that he could not help him because he did not practice criminal defense law, Truesdell suggested that Sneed take part in a scheme to obtain funds illegally from the Department of Labor by the use of overtime pay vouchers made out in the name of a non-existent private contractor. Truesdell said that he needed these funds to pay for his daughter's legal defense and offered to share whatever he received with Sneed.

Sneed refused to let Truesdell use his name as that of the payee, but after several more telephone calls, Sneed finally agreed to enlist the aid of a friend who would pose as the non-existent contractor. Truesdell and Sneed's friend then went ahead with the fraudulent scheme, eventually receiving more than $15,000 from the Department of Labor. Sneed's share of this money amounted to $3,812.70, approximately one-fourth of the total. In testifying before the hearing committee, Sneed asserted that his motivation in participating in this scheme was to help his friend, not to receive any monetary gain. He also said he was surprised by the large amount of money that he eventually received as his share.² Sneed admitted, however, that at the time he engaged in the scheme with Truesdell, he knew that his conduct was illegal.

In October 1987 Sneed pleaded guilty before the United States District Court for the Southern District of New York to a one-count information charging a misdemeanor violation of 18 U.S.C. § 641 ("unlawfully, willfully, and knowingly" aiding and abetting the conversion, to the use of another, of a record, voucher, or thing of value of a department or agency of the United States, "to wit, a United States Treasury check"). He was later sentenced to pay a fine of $3,812.70, plus a $25 "special assessment," and ordered to perform 200 hours of community service. This sentence was apparently designed to minimize the impact on Sneed's ability to practice law in Texas. Sometime after the sentencing, however, Sneed's counsel discovered that because Sneed had not received a sentence of probation, Texas disciplinary rules would require his disbarment. Consequently, in December 1989 Sneed's sentence was amended to place him on unsupervised probation for a short period.

In the meantime, this court ordered Sneed suspended from the practice of law pursuant to D.C.Bar Rule XI, § 10(c), which requires the suspension, pending further disciplinary action, of an attorney who has been convicted of a "serious crime."³ See In re Hutchinson, 474 A.2d 842 (D.C.1984). The court then directed the Board to determine whether Sneed's conviction involved moral turpitude within the meaning of D.C.Code § 11-2503(a).

The Board in due course filed its report with the court recommending that Sneed be disbarred because the offense of which he was convicted, even though it was only a misdemeanor, was a crime of moral turpitude. Thereafter, while Sneed's case was pending, this court decided the case of In re McBride, 602 A.2d 626 (D.C.1992) (en banc), in which it held that a misdemeanor cannot be regarded as a crime involving moral turpitude per se. As a result, we remanded Sneed's case to the Board for a determination whether his crime involved moral turpitude on its particular facts. A hearing on this issue was held before a hearing committee, which then filed a report with the Board concluding that the facts of Sneed's case established moral turpitude. The Board agreed with the hearing committee and recommended that Sneed be disbarred pursuant to section 11-2503(a).

II

When reviewing a recommended disciplinary sanction against an attorney, this court must accept the Board's findings of fact if they are supported by substantial evidence. D.C.Bar Rule XI, § 9(g)(1); see, e.g., In re Smith, 403 A.2d 296, 303 (D.C.1979). However, "we review de novo any Board determination of moral turpitude, since `the ultimate issue of moral turpitude is one of law rather than of fact.'" In re Kerr, 611 A.2d 551, 553 (D.C.1992) (quoting In re Shillaire, 549 A.2d 336, 343 (D.C.1988)). Although this court usually adopts the Board's recommended sanction "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted," D.C.Bar Rule XI, § 9(g)(1); see, e.g., In re Steele, 630 A.2d 196, 199 (D.C.1993); In re Hutchinson, 534 A.2d 919, 924 (D.C.1987) (en banc), that rule is subject to a caveat in cases presenting issues of moral turpitude. Because the question of whether a particular crime involves moral turpitude is a legal one, and disbarment is statutorily mandated if an attorney is convicted of such a crime, this court is guided (and, we assume, so is the Board) by sanctions imposed in other cases with similar facts so as to further the policy expressed in Rule XI, § 9(g)(1).

Before this court, Sneed contends that the conduct on which his 1987 conviction was based does not support the hearing committee's (and hence the Board's) finding of moral turpitude so as to require his disbarment under D.C.Code § 11-2503(a). Specifically, he argues (1) that his conduct does not fit within this court's prior interpretations of moral turpitude; (2) that the report of the hearing committee, which described his case as "close," reflects the committee's difficulty in concluding that his acts merited disbarment; and (3) that disciplinary authorities in the other states to whose bars he belongs have imposed only a suspension, and that we should do likewise. After reviewing the record and the relevant case law, we find these arguments meritless.

D.C.Code § 11-2503(a) provides that when a member of our bar has been "convicted of an offense involving moral turpitude," that attorney must be disbarred. See In re Rosenbleet, 592 A.2d 1036, 1037 n. 3 (D.C.1991) (describing difference between disbarment under section 11-2503(a) and "ordinary" disbarment). Once moral turpitude is established, the statute leaves the court no discretion to impose a lesser sanction. See In re Colson, 412 A.2d 1160, 1168 (D.C.1979) (en banc). The harshness of this rule was softened just a bit when this court held in In re McBride, supra, 602 A.2d at 632, that a conviction of a misdemeanor — unlike a felony — cannot be deemed to include a finding of moral turpitude per se. Thus, for the purpose of determining a proper disciplinary sanction, an attorney who has been convicted of a misdemeanor is entitled to a hearing on whether that crime, on its particular facts, involved moral turpitude. Id. at 635.

Recognizing that moral turpitude "has less than a finite definition," In re Colson, supra, 412 A.2d at 1167, this court has nevertheless accepted three overlapping, but essentially consistent, definitions of conduct involving moral turpitude. Slightly paraphrased from Colson, 412 A.2d at 1168, these three definitions are as follows:

(1) conduct which offends the generally accepted moral code of mankind; (2) an act of baseness, vileness, or depravity in the private and social duties which everyone owes to one's fellow human beings or to society in general, contrary to the accepted and customary rule of right and duty between one person and another; and (3) conduct contrary to justice, honesty, modesty, or good morals.

As the term is applied in our disciplinary cases, moral turpitude has been held to include acts of intentional dishonesty for personal gain. 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). Additionally, this court has consistently held that crimes involving theft or fraud are crimes involving moral turpitude. E.g., In re Boyd, 593 A.2d 183 (D.C.1991); In re Bond, 519 A.2d 165 (D.C.1986). Since McBride, however, if the crime at issue is a misdemeanor, we must look beyond its statutory definition to the underlying facts; "we cannot find moral turpitude merely by reference to the elements of the criminal statute." McBride, supra, 602 A.2d at 635.

In the present case, the acts which led to Sneed's misdemeanor conviction warrant a finding of moral turpitude. At Truesdell's bidding, Sneed enlisted a friend to pose as a non-existent contractor...