Matter of Shillaire, 86-848.

• Decision Date: 25 October 1988
• Docket Number: No. 86-848.,86-848.
• Citation: 549 A.2d 336
• Parties: In the Matter of George L. SHILLAIRE III, Respondent.
• Court: D.C. Court of Appeals

549 A.2d 336

In the Matter of George L. SHILLAIRE III, Respondent.

No. 86-848.

District of Columbia Court of Appeals.

Submitted July 14, 1988.

Decided October 25, 1988.

Michael S. Frisch, Asst. Bar Counsel, Washington, D.C., entered an appearance for petitioner, Office of Bar Counsel.

Robert S. Litt, Washington, D.C., entered an appearance for respondent.^*

Before TERRY, ROGERS and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

I

The Bar is a noble calling. One who becomes a member of the legal profession is not embarking on a career in trade. Rather, he or she is enlisting as a participant in the administration of justice. As stated in the Preamble to the Code of Professional Responsibility,

the continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law . . .

Lawyers, as guardians of the law, play a vital role in the preservation of society . . . A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.

Membership in our honorable profession is a privilege which places special burdens upon those choosing to pursue it. In re Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917); State v. Fishkind, 107 So.2d 131 (Fla. 1958). Because our "fortunes, reputations, domestic peace . . . nay, our liberty and life itself rest in the hands of legal advocates, their character must be not only without stain, but without suspicion." G. SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS 172 (3rd ed. 1869), quoted in D. Rhode, Moral Character as a Professional Credential, 94 YALE L.J. 491, 507-08 (1985) (hereinafter Moral Character). In the words of Justice Frankfurter, concurring in Schware v. Board of Bar Examiners, 353 U.S. 232, 247, 77 S.Ct. 752, 760, 1 L.Ed.2d 796 (1957), lawyers stand

as a shield . . . in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth" speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as "moral character."

We are all human, and a lawyer cannot be required to be a plaster saint, but he or she should surely be expected, at the very least, to behave in a way that demonstrates "honesty, fairness and respect for the rights of others and for the laws of the state and nation." See Konigsberg v. State Bar of California, 353 U.S. 252, 263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1957).

These principles have particular cogency in cases involving bar discipline. One of the responsibilities of this court, as the highest tribunal in this jurisdiction, is to determine whether an attorney charged with misconduct may or may not continue to practice law in the District of Columbia. It is our duty to maintain the integrity of the legal profession by disciplining lawyers who indulge in practices which bring the court or the profession into disrepute, or which corrupt or defeat the administration of justice. State v. Rhodes, 177 Neb. 650, 651, 131 N.W.2d 118, 121 (1964). This obligation takes on special importance at a time when lawyers occupying exalted positions in our land, including in the comparatively recent past two Attorneys General, have disgraced their offices and their profession by criminal or unlawful conduct. See Papke, The Watergate Lawyers All Passed the Character and Fitness Committee, 2 Colum.U.F. 15 (1973), cited in Moral Character, supra, 94 YALE L.J. at 510 n. 86. We agree with the Supreme Court of Florida that

As members of this profession we realize that our standing is often measured in the layman's mind by the manner in which we discipline that small minority of our brethren who break the rules of fidelity and trust required by our calling.

Fishkind, supra, 107 So.2d at 132-133.

In carrying out our responsibility to discipline errant attorneys, we do well as judges to heed the biblical admonition to let him who is without sin cast the first stone. It behooves us to recognize our fallibility as we try to follow the law and, where judgment and discretion are called for, to exercise them soundly and with restraint. Lawyers are people too, and courts should address disciplinary problems humanely and with a due sense of proportion rather than in a spirit of vengeance. Before we impose a sanction, we must be sure that there is reliable evidence to support it.

But the community has rights too. It is our duty, in dealing with problems of bar discipline, to strive to bring about that day, which surely seems distant in the autumn of 1988, when membership in the Bar will be recognized by the citizens of our fair capital as a badge of honor, carrying with it assurance of the highest character and integrity. Perhaps our reach may exceed our grasp, but we surely falter in our responsibilities if we do not do our utmost to enable our profession both to merit and to secure the highest possible measure of public confidence and esteem. Just as we must respect the accused lawyer's right not to be hounded from his profession on the basis of rumor or unfounded accusation, so too we must ensure that the public is not short-changed by an unduly restrictive approach to the kinds of evidence which may be considered. This surely means, at least, that where powerful probative evidence against an attorney is admissible under the rules which govern disciplinary proceedings, it cannot simply be disregarded.

In the present case, we must address the case of an attorney who was convicted of threatening a prospective prosecution witness in a federal criminal proceeding against him in the State of Michigan and suspended from practice for one year in that state. Although the statutory law of this jurisdiction requires the disbarment of an attorney who has been convicted of a crime involving moral turpitude, D.C.Code § 11-2503(a) (1981), the Board on Professional Responsibility (the Board) found that moral turpitude had not been shown and recommended reciprocal discipline. In ma king that recommendation, the Board declined to consider an affidavit by a Special Agent of the Federal Bureau of Investigation (F.B.I.), which was never contested by the attorney, and which detailed the circumstances surrounding the attorney's conviction and cast his conduct in a far more damaging light. Because we find the Board's failure to consider the affidavit to constitute legal error, and because the record as a whole, with the affidavit accorded appropriate weight, points towards moral turpitude and disbarment, we remand to the Board for further proceedings.

II

On March 13, 1986, George L. Shillaire, Esq. entered a plea of guilty in the United States District Court for the Eastern District of Michigan to misdemeanor violations of 18 U.S.C. § 701 (unlawful possession of Federal insignia) and 18 U.S.C. § 1512(b) (harassment of a Federal witness). More serious felony charges against him were dismissed as part of a plea agreement. The insignia charge arose from Shillaire's having mailed a letter on June 12, 1984, on United States Senate stationery, imprinted with Senator Howard W. Cannon's signature, in an attempt to collect a private debt from a former client, one Daniel Adler. The harassment charge arose from an encounter with Adler at the United States Courthouse on October 9, 1984 in which Shillaire threatened Adler and made an obscene gesture to him in connection with Adler's cooperation with the government in criminal proceedings then pending against Shillaire.¹

During the plea proceedings, the government adopted as its proffer of evidence an affidavit by Special Agent Justin G. Fox of the F.B.I. According to Special Agent Fox, Adler had sought Shillaire's assistance in forestalling Adler's possible deportation from the United States. Adler subsequently reported to the F.B.I. that Shillaire had told him that he (Shillaire) had connections in the United States Senate, and that through these connections he could prevent Adler's threatened deportation in return for payments of cash. On receipt of this information, the F.B.I. instituted a comprehensive investigation, which, according to the affidavit, eventually included a wiretap on Shillaire's telephone and the tape recording by F.B.I. informants of conversations which they had with Shillaire. According to Special Agent Fox, the investigation corroborated Adler's allegations, and Shillaire was eventually indicted for alleged bribery of public officials.² The Fox affidavit then outlines a series of events which arose out of the investigation of the alleged bribery and which resulted in Shillaire's plea to and conviction of other charges, as described above.

Some of the allegations in the Fox affidavit were framed in terms of rumors reported by Adler, and others described incidents which were not shown to have been connected with Shillaire. A substantial portion of the material in the Fox affidavit, however, is based on information provided to the F.B.I. by informants who, according to the affidavit, had direct dealings with Shillaire. In several instances, the informants' accounts are said to be supported by tape recordings. The basic thrust of the affidavit is that after Shillaire learned that Adler had made accusations against him that had led to the F.B.I. investigation, he and his common law wife began to make comments about Adler indicating that they intended him harm and even death, and took at least exploratory steps towards matching their words with deeds. Some parts of the affidavit are quite specific and colorful in describing the means by which Adler was to be threatened or harmed. If true, these allegations paint a very negative picture indeed of Shillaire's conduct and substantially affect the character of the record on which the selection of an appropriate sanction must be made.

III

During the plea proceedings and thereafter, Shillaire readily...