Matter of Kent

• Decision Date: 20 October 1983
• Docket Number: No. M-96-81.,M-96-81.
• Citation: 467 A.2d 982
• Parties: In the Matter of Lorna D. KENT, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

467 A.2d 982

In the Matter of Lorna D. KENT, A Member of the Bar of the District of Columbia Court of Appeals.

No. M-96-81.

District of Columbia Court of Appeals.

Argued May 25, 1983.

Decided October 20, 1983.

James J. Bierbower and Hamilton P. Fox III, Washington, D.C., on behalf of respondent.

Fred Grabowsky, Bar Counsel, Washington, D.C., on behalf of the Board on Professional Responsibility.

Before KERN and BELSON, Associate Judges, and PAIR, Associated Judge, Retired.

PER CURIAM:

This disciplinary matter is before the court on the Report and Recommendation of the Board on Professional Responsibility (Board), which found that respondent had engaged in conduct involving dishonesty, in violation of DR 1-102(A)(4), and recommended that respondent be suspended from the practice of law for a year and a day. We accept the Board's findings of fact, but reject the recommended discipline. We order that respondent be suspended from practice for 30 days.

Respondent is 33 years old and, until July 1981, was a trial attorney with the United States Department of Justice. Although she had an unblemished professional record, respondent had a history of personal and emotional problems that led her to seek psychiatric treatment in 1978. Respondent discontinued that treatment in January 1981, because she felt that it was not helping her.

This disciplinary proceeding stems from the events of May 22, 1981. At approximately noon on that date respondent, suffering from "severe transient emotional distress" entered the F Street Garfinckel's and proceeded from department to department randomly grabbing store merchandise and stuffing it into her briefcase or purse. She did this in an open fashion, aware that sales clerks and store detectives were observing her actions. Eventually respondent returned to the first floor of the store and walked toward an exit, at which point she was stopped by store detectives. She was arrested on a charge of attempted petit larceny, D.C. Code § 22-2202 (1981), repealed by D.C. Law 4-164, § 602(z), 29 D.C. Reg. 3976 (1982), replaced by D.C. Code § 22-3801 (1983 Supp.) et seq.; she pleaded guilty to the misdemeanor charge of taking property without right, id. § 22-1211, repealed by D.C. Law 4-164, § 602(o), 29 D.S. Reg. 3976 (1982), replaced by D.C.Code § 22-3801 (1983 Supp.) et seq., and was sentenced to 1 year's unsupervised probation.¹

After respondent notified this court of her conviction, Bar Counsel initiated formal disciplinary proceedings. Bar Counsel charged respondent with violating DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude that reflects adversely on one's fitness to practice law) and DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Following a hearing, the Hearing Committee (Committee) concluded that although respondent had violated the latter rule, Bar Counsel had failed to demonstrate that she had violated the former. The Committee recommended that, in light of the aberrational nature of respondent's actions and her mental state at the time of the incident, a suspension of 30 days was the appropriate sanction.

Although neither Bar Counsel nor respondent objected to the Committee's report, the Board sua sponte ordered oral argument concerning the appropriateness of the recommended sanction. Following argument, a majority of the Board² agreed with the Committee that respondent's conduct involved dishonesty, but not moral turpitude. The Board majority, however, recommended that respondent be suspended for a year and a day. The Board majority recommended this sanction in order to permit reevaluation of respondent's mental and emotional fitness for the practice of the law when she petitioned for reinstatement following the expiration of the suspension period.³

Four members of the Board joined in a dissenting opinion which expressed the view that although respondent's conduct technically violated DR 1-102(A)(4), the 30-day suspension recommended by the Committee represented an appropriate sanction in light of the unusual facts and circumstances of the case. The Board dissenters emphasized that the uncontradicted expert testimony adduced during the hearing demonstrated that respondent had resumed psychiatric treatment, that her mental problems had been alleviated, and that she no longer posed any threat to clients or others. Given this record, the Board dissenters questioned what purpose would be served by waiting a year to conduct a reinstatement hearing "at which the same set of questions will be asked and presumably the same answers will be given."

Respondent filed exceptions to the Board's report. D.C.App.R. XI § 7(3) provides that in reviewing the report and recommendation this court "shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition . . . unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted." Under this rule the parties' contentions resolve themselves into three questions: 1) whether substantial record evidence supports the finding that respondent did not violate DR 1-102(A)(3); 2) whether substantial record evidence supports the finding that respondent violated DR 1-102(A)(4), and 3) whether the year-and-a-day sanction fosters a tendency toward inconsistent dispositions for comparable conduct. We address each question in turn.

With respect to whether respondent's conduct violated DR 1-102(A)(3), we are satisfied that the record supports the Board's finding that the conduct did not involve moral turpitude. Although the term "moral turpitude" encompasses offenses that involve intentional dishonesty for personal gain, see generally In re Willcher, 447 A.2d 1198,1200 (D.C.1982), the unusual facts and circumstances of this case clearly indicate that respondent's actions were prompted by a neurotic desire to be caught rather than a desire for personal profit. We therefore adopt the Board's...