In re Kerr

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, § ll-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 *96a 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. Eliza-beths 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, seem*97ingly, 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, § ll-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.]

*98 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 § ll-2503(a) to disbar permanently an attorney who has been convicted of an offense involving moral turpitude. The cases cited by petitioner (and by Bar Counsel) in support of their constitutional challenge are inapposite; they are all state cases in which the courts derived their authority from their respective state constitutions.

“The District of Columbia is constitutionally distinct from the States.” Pal-more v. United States, 411 U.S. 389, 395, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973). This court and the Superior Court of the District of Columbia were created pursuant to the plenary power of Congress to legislate for the District of Columbia as provided in Art. I, § 8, cl. 17 of the Constitution. Accordingly, in this unique jurisdiction, unlike the states, Congress has the constitutional authority to “vest and distribute the judicial authority in and among courts and magistrates, and [to] regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the constitution of the United States.” Palmore, supra, at 397, 93 S.Ct. at 1676, 36 *99L.Ed.2d 342, quoting from Capital Traction Co. v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873 (1899). When exercising this Article I authority, Congress is not constrained by the separation of powers considerations which operate within the states. Consequently § ll-2503(a) is constitutional, as we implicitly recognized when we applied it in Colson.

Concluding as we do that the statute makes disbarment for conviction of an offense involving moral turpitude both mandatory and permanent in all cases in which a pardon has not been granted, petitioner’s application for reinstatement to the bar of this court is denied.18

So Ordered.

GALLAGHER, Associate Judge,

concurring:

Though it may appear the statute is unnecessarily rigid, the fact remains that this is properly a legislative concern and not one for the court. Because of the way the statute is now drawn, I see no course but to reach the result we do.

PERREN, Associate Judge,

dissenting:

I begin from the premise that, conceptually, disbarment and reinstatement pose separate questions. Disbarment, as such, speaks solely to one’s exit from the profession; it does not, in itself, preclude reinstatement, either absolutely or presumptively. Put another way, reinstatement “is not a continuation of the prior [disbarment] proceeding”; it “is a new proceeding for admission to the bar.” In re Keenan, 310 Mass. 166, 168, 37 N.E.2d 516, 519 (1941).

This jurisdiction has recognized the inherent separateness of disbarment and reinstatement for over 70 years. See In re Adriaans, 33 App.D.C. 203 (1909) (reinstatement nine years after disbarment); accord, Ex Parte Peters, 195 Ala. 67, 70 So. 648 (1916); In re Lavine, 2 Cal.2d 324, 41 P.2d 161 (1935); Cantor v. Grievance Committees, 189 Tenn. 536, 226 S.W.2d 283 (1949).

This is not to say disbarment has no bearing on one’s prospects for reinstatement. It obviously does. The point, rather, is that the implication of the one for the other in individual cases (or in categories of cases) is a matter of statute, rule, and/or court decision.1 The nexus must be affirmatively established.

*100The question, then, is whether Congress not only mandated disbarment for conviction of an offense involving moral turpitude, In re Colson, D.C.App., 412 A.2d 1160 (1979), but, as an added sanction, precluded reinstatement. In considering the congressional intent, we have only the present statute, D.C.Code 1973, § 11-2503(a), and its immediate predecessor, D.C.Code 1967, § 11-2103. These acts in relevant part provide as follows:2

Section 11-2103

When a member of the bar of the United States District Court for the District of Columbia [which had exclusive disciplinary jurisdiction over attorneys prior to court reorganization] is convicted of an offense involving moral turpitude, ... the name of the member so convicted may thereupon, by order of the court, be struck from the role of the members of the bar, and he shall thereafter cease to be a member thereof. Upon appeal from a judgment of conviction, and pending the final determination of the appeal, the court may order the suspension from practice of the convicted member of the bar; and upon a reversal of the conviction, or the granting of a pardon, the court may vacate or modify the order of disbarment or suspension. [Emphasis added.]

Section ll-2503(a)

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 [of an offense involving moral turpitude] 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. [Emphasis added.]

A majority of this court holds that § ll-2503(a) precludes reinstatement, stressing that (1) the words “shall thereafter cease to be a member” implies permanence, and that (2) the last sentence of § ll-2503(a), authorizing the court to “vacate or modify the order of disbarment” in the event of a “pardon,” implies there is only this one exception to permanent disbarment. Although this reasoning has force, I believe there is greater strength in the view that § ll-2503(a) does not generally bar reinstatement.

As I read the two statutes, the only relevant substantive change is from permissive (“may”) to mandatory (“shall”) disbarment *101upon conviction of an offense involving moral turpitude.3 This shift in itself says nothing about whether disbarment must be permanent. Thus, for the majority to be correct, it must be prepared to say that even permissive disbarment under D.C.Code 1967, § 11-2103 had to be permanent (absent reversal of the conviction or a pardon), since the relevant language (“shall thereafter,” etc.) under both statutes is the same. Were my colleagues then to reply “Yes; disbarment had to be permanent under § 11-2103,” I would find that answer unpersuasive.

To me, the words “shall thereafter cease to be a member” connote indefiniteness— open endedness — not permanence. The word “thereafter” is a relatively weak word meaning “after that”; it does not necessarily mean “forever.” Common sense reinforces this reading of the statute: it would be anomalous for Congress to say (as it did) that disbarment for an offense involving moral turpitude was merely permissive— could be imposed or not — under § 11-2103, and yet, if invoked, had to be permanent. Although conceptually possible, this position is hardly plausible, for it would be inconsistent with the very flexibility intended by the permissive nature of the disbarment sanction itself. I cannot bring myself to believe that Congress, in adopting § 11-2103, intended such a wide gulf between suspension and disbarment.

Nor do I believe that permanence is implied by the language in § 11-2103 expressly authorizing this court to “vacate or modify the order of disbarment or suspension” upon “a reversal of the conviction, or the granting of a pardon.” (Emphasis added.) The majority’s conclusion that such language provides the exclusive basis for resumption of practice overlooks and confuses the inherent separateness of disbarment and reinstatement. Vacation or modification of an order of disbarment is not legally equivalent to an order of reinstatement. Rather, such an action is, in effect, a ruling that the original order of disbarment is void from the beginning and therefore must be erased or supplanted. That ruling does not represent a conclusion that an individual had violated a disciplinary rule but now is rehabilitated, which is the relevant concern when reinstatement is at issue. See D.C. App.R.XI, § 21(5). By interpreting the statute to mean that authority to “vacate or modify” provides the only avenue to “reinstatement,” the majority strains to make these concepts congruent when they more properly should be said to exist side-by-side.

Even if vacation or modification of disbarment could be deemed a legal, as well as functional, equivalent of reinstatement, each would comprise only a subset of this broader concept of reinstatement. Pardon and reversal of a conviction are such obvious, categorical bases for restoration of an attorney disbarred for a crime that the disbarment provision itself would appear unfair on its face (or at least to have a material omission in drafting) if these avenues of relief were not expressly recognized.4 Accordingly, I would not inflate the “vacation” or “modification” concepts to fill the entire space occupied by “reinstatement” in order to achieve the severest possible interpretation.

In short, I am not persuaded that Congress, in adopting § 11-2103, intended a double sanction: if disbarment, then permanent disbarment.

If I am correct, then there is no basis for holding that the successor statute applicable here, § ll-2503(a), requires permanent disbarment. The only change in language from § 11-2103 to § ll-2503(a) related to disbarment (from permissive to mandatory) not to reinstatement. Because the authority to “vacate or modify” the disbarment order in the event of a pardon is conceptu*102ally distinct from, or at least narrower than, the authority to grant reinstatement, I perceive no basis for saying that § 11-2503(a) retained, - let alone added, a reinstatement bar.5

Even if the foregoing discussion is not conclusive, it does suffice, I trust, to demonstrate at least that the statutory language is ambiguous as to reinstatement, not a clear mandate for permanent disbarment. Under these circumstances, given the serious deprivation of the right to earn a particular livelihood caused by disbarment, and given the substantial precedent for reinstatement, upon rehabilitation, after a period of disbarment, see note 1 supra, I would resolve the ambiguity in § ll-2503(a) by drawing upon the rule of lenity applicable to criminal cases: “When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). Again, by analogy: “[w]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). Accord, Whalen v. United States, 445 U.S. 684, 695 n.10, 100 S.Ct. 1432, 1440 n.10, 63 L.Ed.2d 715 (1980); Simpson v. United States, 435 U.S. 6, 15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1977); Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Indeed, the analogy is appropriate not merely because the deprivation is so severe but, more significantly, because disbarment under § 11-2503(a) is tied directly to the criminal conviction, as an inevitable consequence.6

In summary, the majority has reached unnecessarily — and unwisely — for a result not dictated by statute.7 Whereas § 11-2503(a) is clear as to mandatory disbarment (“shall"), it can be said with assurance only that the statute makes disbarment indefi-*103mte (“thereafter ), not permanent. Accordingly, it is up to the court by way of disciplinary rules to decide whether reinstatement shall be permitted and, if so, under what terms. See D.C.Code 1973, §§ 11-2501, -2502. We have done so. D.C. App.R.XI § 21(2), (5). I therefore would resolve Ms. Kerr’s petition for reinstatement on its merits. From the court’s judgment to the contrary, I respectfully, dissent.