In the Matter of Willcher

• Decision Date: 02 July 1982
• Docket Number: No. M-102-81.,M-102-81.
• Citation: 447 A.2d 1198
• Parties: In the Matter of Arthur L. WILLCHER, Respondent.
• Court: D.C. Court of Appeals

Page 1198

447 A.2d 1198

In the Matter of Arthur L. WILLCHER, Respondent.

No. M-102-81.

District of Columbia Court of Appeals.

Submitted May 14, 1982.

Decided July 2, 1982.

Fred Grabowsky, Bar Counsel, Washington, D. C., for Bd. on Professional Responsibility (of the District of Columbia Court of Appeals).

William W. Taylor, III, Washington, D. C., for respondent.

Before NEWMAN, Chief Judge, and KELLY and PRYOR,^* Associate Judges.

KELLY, Associate Judge:

This matter is before the court for consideration of the "Report and Recommendation of Board on Professional Responsibility" with respect to disciplinary proceedings instituted at our direction against respondent, Arthur L. Willcher, a member of the bar, who was convicted in Superior Court of unlawful solicitation of money from an indigent defendant whom he had been appointed to represent under the District of Columbia Criminal Justice Act ("CJA"),¹ in violation of D.C.Code 1978 Supp., § 11-2606(b) (now D.C.Code 1981, § 11-2606(b)). The Board on Professional Responsibility ("Board") concluded that respondent's conduct did not constitute an offense involving moral turpitude requiring permanent disbarment under D.C.Code 1973, § 11-2503(a)² (now D.C.Code 1981, § 11-2503(a)), but that it did violate DR 1-102(A)(4)³ and DR 1-102(A)(5),⁴ and recommended a three-year suspension.

We disagree with the Board and hold that the offense of which respondent was convicted was one involving moral turpitude within the meaning of D.C.Code 1973, § 11-2503(a), mandating permanent disbarment. See In re Kerr, D.C.App., 424 A.2d 94 (1980). Accordingly, we do not adopt the sanction recommended by the Board.

I

Respondent was convicted by a jury in Superior Court of unlawful solicitation of money from an indigent whom he had been appointed to represent under the CJA.⁵ He was sentenced to six months' imprisonment and fined $700. Execution of the prison sentence was suspended, and respondent was placed on probation for fifteen months. His conviction was affirmed on appeal. Willcher v. United States, D.C.App., 408 A.2d 67 (1979).

On October 24, 1979, this court referred the matter to the Board to institute formal disciplinary proceedings against respondent and to review the elements of the crime of which respondent was convicted to determine whether the crime involved moral turpitude within the meaning of D.C.Code 1973, § 11-2503(a). On December 13, 1979, the Board, having determined that a violation of § 11-2606(b) was not per se a crime of moral turpitude, referred the matter to a hearing committee to determine if respondent's actual conduct which was the basis for his conviction involved moral turpitude within the meaning of D.C.Code 1973, § 11-2503(a), if respondent had violated any disciplinary rules, and if so, the sanction to be imposed. Bar counsel instituted formal proceedings, charging respondent with violations of DR 1-102(A)(3),⁶ DR 1-102(A)(4) and DR 1-102(A)(5).

A hearing was held before Hearing Committee No. 7 on May 21, 1980. Based on the record before it, the committee found that respondent's actual conduct did not amount to moral turpitude within the meaning of D.C.Code 1973, § 11-2503(a) and therefore did not rise to the level of conduct requiring permanent disbarment. It also found that respondent had violated DR 1-102(A)(3), DR 1-102(A)(4) and DR 1-102(A)(5). The hearing committee recommended that respondent, who was already under a five-year suspension for twelve counts of misconduct, see In re Willcher, D.C.App., 404 A.2d 185 (1979), be suspended for an additional year. Both bar counsel and respondent opposed the sanction recommended by the committee.

A hearing was held before the Board on May 14, 1981. Bar counsel contended that respondent should be disbarred pursuant to § 11-2503(a) because the crime of which he was convicted involved moral turpitude, and because of his prior disciplinary record. Respondent urged the Board not to impose any additional discipline in light of the fact that he was presently under a five-year suspension, and because the present proceeding involved conduct which occurred during the same period as the twelve counts of misconduct upon which respondent's five-year suspension was based.

The Board adopted the hearing committee's findings of fact but rejected, as a matter of law, its conclusion that respondent's conduct constituted a violation of DR 1-102(A)(3). The Board stated that since the committee found that respondent's offense was not a crime involving moral turpitude under § 11-2503(a), it followed in accordance with the court's holding in In re Colson, D.C.App., 412 A.2d 1160 (1979), that it was not moral turpitude under DR 1-102(A)(3). The Board therefore dismissed that charge but agreed that respondent's conduct violated DR 1-102(A)(4) and DR 1-102(A)(5). It concluded, however, that the committee's recommended sanction of a one-year suspension added to respondent's current suspension was inadequate since the conduct contained an element of dishonesty. The Board determined that respondent's behavior warranted a three-year suspension, but it nonetheless agreed with respondent that the unlawful solicitation of money from his client occurred within the same period of time as the conduct giving rise to the five-year suspension.⁷ The Board therefore recommended that respondent be suspended for three years, effective from October 11, 1979. Two members of the Board concurred in the recommended sanction but disagreed with the Board's conclusion that respondent's conduct did not violate DR 1-102(A)(3).⁸

II

The Board adopted the hearing committee's conclusion that "Respondent's conduct, while plainly inimical to the standards of the profession, did not . . . sink to the level of enormity requiring eternal disbarment," and therefore did not amount to moral turpitude within the meaning of D.C.Code 1973, § 11-2503(a). We disagree.

The term "moral turpitude" has been defined generally as importing "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." Attorney Grievance Commission of Maryland v. Walman, 280 Md. 453, 459, 374 A.2d 354, 358 (1977) (quoting, Braverman v. Bar Association of Baltimore, 209 Md. 328, 344, 121 A.2d 473, 481, cert. denied, 352 U.S. 830, 77 S.Ct. 44, 1 L.Ed.2d 51 (1956)). When applied in the context of attorney misconduct, the term connotes a fraudulent, Iowa State Bar Association v. Kraschel, 260 Iowa 187, 197, 148 N.W.2d 621, 627 (1967), or dishonest, Committee of Legal Ethics v. Scherr, 149 W.Va. 721, 726, 143 S.E.2d 141, 147 (1965), intent. As Justice Traynor said for the California Supreme Court in In re Hallinan, 43 Ca1.2d 243, 247, 272 P.2d 768, 771 (1954), appeal after remand, 48 Ca1.2d 52, 307 P.2d 1 (1957):

Although the problem of defining moral turpitude is not without difficulty, it is settled that whatever else it may mean, it includes fraud and that a crime in which an intent to defraud is an essential element is a crime involving moral turpitude. It is also settled that the related group of offenses involving intentional dishonesty for personal gain are crimes involving moral turpitude . . . . [Citations omitted.]

Respondent's conduct in violation of D.C.Code 1978 Supp., § 11-2606(b) is clearly an offense involving both fraud and intentional dishonesty for personal gain. He was appointed, pursuant to the CJA, to represent an indigent defendant, Ferdinard Diaz, on felony charges. While admitting that Diaz was entitled to a "free lawyer," respondent demanded first $500 and then $1,000 from Diaz and his parents in return for his services, a practice prohibited by § 11-2606(b). Demands for money from CJA clients are particularly egregious offenses since they violate the very essence of the CJA — a statute whose purpose is to insure that persons accused of crimes and lacking financial resources have professional services available for their defense. Moreover, respondent's conduct amounted to a double fraud — one on Diaz, who was entitled by the CJA to a "free lawyer," and his family; and one on the judicial system itself. Since the unlawful solicitation of money from an indigent client by an attorney appointed under the CJA, in violation of § 11-2606(b), is always a fraud on the client who is entitled to legal services free of charge and on the judicial system, we hold that a violation of § 11-2606(b) falls squarely within the definition of an offense inherently involving moral turpitude.⁹ This court established in In re Colson, supra, that some offenses inherently involve moral turpitude. In re Roberson, D.C.App., 429 A.2d 530, 531 (1981). When an attorney is convicted of such an offense, this court and the Board are "compelled, by virtue of [D.C. Code 1973, § 11-2503(a)] to order his name stricken. . . ." In re Colson, supra at 1168.

For the foregoing reasons, respondent is disbarred from the practice of law in the District of Columbia and is prohibited from holding himself out to be an attorney at law licensed to practice here. The clerk shall enter an appropriate order effecting the imposition of discipline.

So ordered.

NEWMAN, Chief Judge, concurring:

I join fully in Judge Kelly's opinion for the court and write to add the following. The Supplementary Opinion of Lawrence J. Latto, joined by Allen Snyder,^* makes clear that the Board and its Hearing Committees "have struggled" with the meaning of "moral turpitude" in § 11-2503(a) since our decisions in Colson and Kerr. This "struggle" results from a reluctance to impose the mandated sanction of "super disbarment."

While I fully understand the desire to enhance flexibility over mandatory sanctions, I respectfully submit that it is not the province of the Board, the Hearing Committees or members thereof, or, indeed, of this court, to construe the statute based on...