Matter of Kerr, M-37-80.

• Citation: 424 A.2d 94
• Decision Date: 17 November 1980
• Docket Number: No. M-37-80.,M-37-80.
• Parties: In the Matter of Elaine W. KERR.
• Court: Court of Appeals of Columbia District

424 A.2d 94

In the Matter of Elaine W. KERR.

No. M-37-80.

District of Columbia Court of Appeals.

Argued en banc September 12, 1979.

Decided November 17, 1980.

Ralph H. Dwan, Jr., Washington, D.C., for Elaine W. Kerr.

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

Bernard I. Nordlinger, Washington, D.C., with whom Michael R. McAdoo, Bethesda, Md., was on the brief, as amicus curiae appointed by the Court.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

HARRIS, Associate Judge:

This matter is before the court for our consideration of the "Findings and Recommendations of The Disciplinary Board" with respect to a petition for reinstatement to active practice as a member of the bar of this court. Petitioner Elaine W. Kerr's disbarment arose from her conviction in the United States District Court for the District of Columbia of mail fraud, 18 U.S.C. § 1341 (1970), an offense involving moral turpitude. Consistent with our decision in In re Colson, D.C.App., 412 A.2d 1160 (1979) (en banc), we adhere to the statutory mandate of D.C.Code 1973, § 11-2503(a). That statute initially requires disbarment of an attorney who has been convicted of an offense involving moral turpitude. We view the statute as precluding reinstatement, and conclude that the petition for reinstatement must be denied. The recommendation that the petitioner be conditionally reinstated accordingly is not adopted.¹

I

In a ten-count indictment filed on June 23, 1970, Kerr and a codefendant were charged with fraud by mail and wire, 18 U.S.C. §§ 1341, 1343 (1970), interstate transportation of stolen property, 18 U.S.C. § 2314 (1970), forgery and uttering, D.C. Code 1973, § 22-1401, and larceny after trust, id., § 22-2203. Petitioner is an attorney who then was licensed to practice in Maryland, Virginia, and the District of Columbia.² She was charged in essence with involvement in a scheme to defraud two persons — one, a client; the other, someone for whom she had acted as trustee — in connection with a real estate investment scheme operated by her codefendant.³ On September 10, 1971, she entered an Alford plea to count one of the indictment which alleged fraud by mail and wire.⁴ She was sentenced to two years' imprisonment, with a minimum of six months to be served.⁵ Execution of the sentence was suspended for 30 days to give petitioner the opportunity to make restitution.⁶ Meanwhile, the trial court denied petitioner's motion to withdraw her guilty plea. The United States Court of Appeals for the District of Columbia Circuit affirmed the trial court's ruling. In 1973, the Supreme Court denied her petition for a writ of certiorari.⁷

As a result of her conviction, petitioner was disbarred seriatim in each jurisdiction in which she had been admitted to practice. She was disbarred by the Circuit Court of Fairfax County, Virginia, on November 9, 1971; by the United States District Court for the District of Columbia on February 5, 1974 (following a suspension order of September 27, 1972); by the Court of Appeals of Maryland on October 25, 1974; and by this court on May 18, 1977, by order effective nunc pro tunc to November 22, 1972, the date of her suspension under D.C.App. R.XI, § 15(1).⁸

On March 9, 1978, petitioner applied to this court for reinstatement.⁹ In the proceedings which followed, she expressed her intent to relocate to the District of Columbia from Falls Church, Virginia, and to seek employment here.¹⁰

In her testimony before the hearing committee which was designated by The Disciplinary Board to consider her petition for reinstatement, petitioner presented a picture of rehabilitation. Subsequent to her conviction, she had received graduate degrees in psychology. At the time she filed her petition, she was enrolled in a post-doctoral residency program in clinical psychology at the Maryland State Mental Hospital. Her doctoral dissertation effectively combined the disciplines of law and psychology. She received clinical experience at St. Elizabeths Hospital and has testified as an expert witness in psychology at the request of attorneys familiar with her background. She thus has successfully undertaken a new career.

The hearing committee was troubled, nonetheless, by petitioner's "confusion about the ethical implications of her criminal acts."¹¹ As she had done from the time she filed her motion to withdraw her guilty plea, petitioner persisted in asserting her innocence of any wrongdoing.¹² Nor, seemingly was she aware that she had violated any ethical constraints by virtue of her conduct. See note 11, supra. In fact, she testified that she had not read the Code of Professional Responsibility "in the last year or two, or maybe in the last four years." Consequently, the hearing committee recommended that petitioner be reinstated only after establishing that she had completed a course in legal ethics. The Disciplinary Board adopted the findings and recommendations of the hearing committee in their entirety. However, based upon the statute which specifically applies to petitioner's case, we rule otherwise.

II

D.C.Code 1973, § 11-2503(a), provides:

When a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude, and a certified copy of the conviction is presented to the court, the court shall, pending final determination of an appeal from the conviction, suspend the member of the bar from practice. Upon reversal of the conviction the court may vacate or modify the suspension. If a final judgment of conviction is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and he shall thereafter cease to be a member. Upon the granting of a pardon to a member so convicted, the court may vacate or modify the order of disbarment.

"To be sure, the statute is mandatory in its terms." In re Colson, supra, 412 A.2d at 1164; accord, Laughlin v. United States, 154 U.S.App.D.C. 196, 199 n. 3, 474 F.2d 444, 447 n. 3 (1972), cert. denied, 412 U.S. 941, 93 S.Ct. 2784, 37 L.Ed.2d 402 (1973). The finality of petitioner's conviction, coupled with the Board's finding of moral turpitude,¹³ compelled her disbarment under the clear language of the statute.¹⁴ That she was convicted of a federal felony, rather than a local offense, is immaterial. See, e. g., In re Hopfl, 48 N.Y.2d 859, 400 N.E.2d 292, 424 N.Y.S.2d 350 (1979); Muniz v. State, 575 S.W.2d 408 (Tex.Civ.App.1978). Nor is the statutory provision any less operative by reason of her Alford plea. Although she thereby did not technically admit guilt, she nonetheless stood convicted of a felony. In re Hopfl, supra.¹⁵ Moreover, under the statute, her disbarment is permanent. To repeat, § 11-2503(a) states in part:

If a final judgment of conviction is certified to the court, the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and he shall thereafter cease to be a member. [Emphasis added.] See, e. g., MacKinnon v. Ferber, 16 N.J.Super. 390, 395, 84 A.2d 647, 649 (1951) (statute which compels forfeiture of right to drive thereafter upon second conviction of drunken driving means permanent forfeiture "for such is the force of the word `thereafter'. . . .")¹⁶

A similar statute in New York has been so construed.¹⁷ Judiciary Law § 90, subd. 4, provides:

Any person being an attorney and counsellor-at-law, who shall be convicted of a felony, shall, upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent to practice law as such.

Whenever any attorney and counsellor-at-law shall be convicted of a felony, there may be presented to the appellate division of the supreme court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be struck from the roll of attorneys.

In denying a petition for reinstatement following disbarment under that provision, the court in In re Sugarman, 64 App.Div.2d 166, 409 N.Y.S.2d 224 (1978), noted that the attorney involved had presented a persuasive case for considering his reinstatement. Nonetheless, said the court, the statute left it powerless to reinstate a convicted felon absent either the reversal of his conviction or a pardon. Accord, In re Glucksman, 57 App.Div.2d 205, 394 N.Y.S.2d 191 (1977) (in absence of either a reversal or pardon, attorney disbarred under the statute has no legal basis for seeking reinstatement); People v. Buckles, 167 Colo. 64, 453 P.2d 404 (1968) (en banc) (statute declaring that a person convicted of felony will be disqualified from practicing as an attorney precludes reinstatement). Similarly, our statute expressly provides for only one situation in which a disbarment order may be modified or vacated, namely, in the event of a pardon. We do not have the statutory authority to reinstate an attorney who has been convicted of an offense involving moral turpitude.

We reject the argument, advanced both in petitioner's brief and in the brief of Bar Counsel on behalf of the Board's recommendation (which recommendation, incidentally, was made prior to our decision in the Colson case), that the statute represents an unconstitutional infringement on the inherent authority of this court over attorney discipline. While D.C.Code 1973, § 11-2501, gives us authority over the admission of attorneys to the bar as well as over their censure, suspension, and expulsion, it is silent with respect to readmission or reinstatement. The only rational interpretation of the word "admission" in that statute is "original admission." Thus, our inherent authority in no way conflicts with our obligation under § 11-2503(a) to disbar permanently an attorney who has been convicted of an offense involving moral turpitude....