*1 all, although value at less than the small-
est coin.” [Citations omitted.]
Finding that there no error grant
court’s refusal to motions for either acquittal judgment or a n. o. appeal the orders on are
v.,
Affirmed.
DISTRICT BAR, OF COLUMBIA
Petitioner,
v. KLEINDIENST, Respondent.
Richard G. C., S-37-75. Grabowsky, Washington,
No. Fred D. petitioner. Appeals. District of Columbia Court Miller, Jr., Washington, Herbert D. J. Argued June C., respondent. Aug. Decided REILLY, Judge, Before Chief
KELLY, FICKLING, KERN, GAL- LAGHER, HARRIS, NEBEKER and As- Judges. sociate MEMORANDUM ORDER PER CURIAM. opinion and filed Kelly, J., dissented Disciplinary this court joined. Gallagher, JJ., Fickling and concluded, report consistent with a Committee, respondent violat- separate statement Gallagher, filed J. 1-102(A)(4) ed Fickling, Rules rehearing, in which on denial 1 by misrepresentations and virtue of
J., joined. prejudicial the admin- dishonest conduct spe- justice. istration of The Board found cifically guilty “was of di- repeated misrepresentations in an- rect and swering persistent inquiries about White Department House involvement in Justice litigation against ITT.” dishonesty, involving (A) (4) (4) Engage 1-102 in conduct Rules deceit, misrepresentation. fraud, provide: prejudicial (5) Engage lawyer that is shall not: conduct A justice. the administration *2 147 Membership privilege in the bar is quoted finding is correct. The pri- A fair with during Senate burdened conditions. The discloses that evidence is professional character one of respondent’s hearings vate confirmation Compliance that condition is Attorney them. nomination as General admission; States, at the moment of expressly asserted that essential United anyone equally essential afterwards. at but is no had been made effort 46, Radford, 37 243 U.S. S.Ct. influencing Selling v. directed White House Durant, 377, 585; an- Matter Department L.Ed. in its conduct 61 Justice 140, 147, 497, 10 by In- A. Ann.Cas. mergers 80 Conn. 67 litigation challenging titrust is broken the condition Telephone Inc. Telegraph, 539. Whenever ternational & is admission privilege To refuse Corporation, Hart- lost. with the Canteen past The examination Corpora- him for offenses. Corporation, and the ford Grinnell character, into the examination contrary, tape-recorded into like tion. To learning, merely a test of fitness. To respondent telephone conversation between unworthy punish applicant is not to and then-President Nixon reveals lawyer unworthy strike the from roll spondent “stay was ordered to penalties pains is not to add file out .... Don’t case] [the The . crime. into character Supreme Court], . . examination brief [in renewed; the test of fitness is no [D]ropthe thing.” . . . For these longer satisfied. reasons respondent conclude that did violate We repeatedly said that courts have disbar- Disciplinary Rule and we 1-102(A)(4), punishment. . re ment is not [In unnecessary deem it the consid- resolve 84, Rouss, 81, 782, 221 N.Y. 116 N.E. 783 question whether erably more difficult (1917).] his conduct contravened subsection also pun- The distinction between fitness (5). must be in this delicate ishment maintained question turn then We matter, hearing At the on this judgment. disciplinary The what action to take. scrupulously adhered Bar Counsel adopted recommendation ably by Judge stated notion so Cardozo Hearing one-year sus Committee that a opinion, supra. stage, At this the Rouss pension imposed.2 did the Board While we, Hearing Com- like the Board and the disciplinary not recommend more severe mittee, sight do not lose of the need action, option, we are free to consider that public erosion of confidence avoid since nature of the consideration profession. It this latter is a made independently to be turned Committee ef Through court. the conscientious its recommenda- primarily as basis for and the forts of the correctly deemphasized the disci- tion. Board, judgmental relevant factual kinds to other pline factors often relevant explored and ven considerations have been pro- are Those factors of misconduct. tilated, been way and our difficult incom- generally tection of the eased. lawyers, and deterrence petent unethical example. The prem start with a We fundamental correctly dis- looked to addition pro ise : reputa- respondent’s cipline have on fitness ceeding is to the continued and liveli- (otherwise unblemished) tion In lawyer profession. his hood. (Mo. Randolph, re 109 S.W.2d mind, analyze we concepts Black, P.2d these re 1961); In 228 Or. With Hearing Committee rationale years. respondent suspend three member recommended One Board (adopted by the Board) arriving at its force either to relocate his one-year recommendation practice of law or purely make it “federal” the Committee’s assertedly conclusion in nature. based on “the Court, interest of the Accordingly, the view of the Hearing Bar, public.” In relating those in- .Committee that should have a *3 terests revealed, to the misconduct the lapse period for reflection and self-exami- expressed its belief that disci- nation lacks real significance, and the rec- pline severity lesser would undercut the suspension ommended loses all puni- but its thought seriousness with which it the Bar tive consequences. which, This is a case in regarded this misconduct. comity side, to one relevant considerations That misconduct occurred cannot be point toward consistency. substantial In- gainsaid, but exclusion from consideration deed, Hearing Committee, though pri- of lesser levels of must not be marily if exclusively concerned with alone, based on particularly that factor public erosion of Bar, confidence in the since the ap- recommendations before us expressed judgment from the pear underpinned have been by punitive viewpoint public, censure would not As considerations. inappropriate deemed an result. noted, Supreme Court of the State of Censure or a brief cannot be Arizona considered the same in a conduct deemed a tolerant attitude toward the mis- disciplinary proceeding cen- in conduct the case. These actions are a sure unanimous vote.3 Whatever severe profession- rebuke to a man of respondent’s argument be the force of standards, al as the Committee otherwise comity considerations of and avoidance of respondent. viewed important What repetitive disciplinary proceedings require discipline imposed that the pu- not have a impose us to discipline, point the same nitive primary as its effect. That unnecessay here, aspects to reach two punish- Committee dwelt on important Arizona action are to the paramount purpose ment as a for recom- one-year suspension whether a mending suspension is clear from its refer- here primarily punitive would be and hence “penalties” ences “appropriate pun- inappropriate. First, origi- Arizona is the ishment in disciplinary proceedings”. (Re- jurisdiction nal and admitting examination port 23.) respondent’s and the one from which ca- reputation Secondly, reer and stem.
spondent As the Committee good remains in itself acknowl standing in Ari- case, edges, any in this practice zona and can law there. Addi- matter, must be fair re tionally, three-judge committee of the spondent public and offer to the United States District Court for the Dis- necessary. if such As did the Commit trict of Columbia considered the same con- tee, respondent’s previous, un by respondent, consider duct and concluded that no private Thus, blemished and laudable record in disciplinary action was warranted. addition, public In protracted suspension service.4 merely us would Supreme Thus, colleague dissenting statement Court. dicusses at some Our kept through respondent’s length minority case alive was views of a member of the efforts, subsequently settled in the and it was of Ari- Governors of State Bar public. best interest of The author of views stated that zona. those respondent’s suspended The Committee characterized . . Re- “would ” spondent period efforts presidential terms he “acted for a short ... by urging directive the Solicitor General to seek an extension of time is noted that even the matter of Board, however, correctly litigation respondent “drop” observed ITT did not carry [Presi- “refused to out then- case as he was ordered to do seeking order.” dent’s] He instrumental President. jurisdictional an to file a extension of time Disci- violated Kleindienst purpose to be lacking any we find of mis- plinary virtue 1-102(A)(4) Rule as a mode one-year suspension ain served My conduct. representations dishonest a criminal Tn matter discipline. to the would also extend concurrence brought; it became prosecution was punitive that, Discipli- de- finding contrary vehicle attempt Any further terminations.5 respondent en- 102(A)(5), Rule 1— inferentially punish admin- prejudicial gaged in conduct expression implied an carry with it would its recommenda- and to justice istration of sen- trial court’s disagreement with the suspended from the respondent be tion that not be tencing judgment, which in the District Columbia practice of law in our exercise appropriate consideration period year.1 one Suspension for disciplinary judgment. *4 serving proper a as not thus seen year, one clear, the opinions make separate As our im- not be proceeding, will purpose in this case2 in this argument heard judge who posed. conscientious recognize appreciate the and respondent is a man of Recognizing that efforts of the stature, correspond- with high professional distinguished Disciplinary Board whose caught up was ingly obligations, who finding in members also unanimous were atmosphere charged political “highly in a patent respondent engaged in that conduct political oppo- pressed by when ly standards to inconsistent with the ethical words, deem nents”, use the Board’s held.3 In our Bar are members of a suspension for impose appropriate it addition, virtually in they were unanimous suspension shall be- period. The thirty-day expira- IS, disciplinary at the action August and their of gin on recommendation respondent be deemed shall tion thereof respon gravity of commensurate with the the Bar of reinstated as a member of misconduct, only being dent’s one member court.6 respondent of the should be sus view that pended period years. Yet for a of three KELLY, whom Judge, Associate with puni majority labors find of the court GALLAGHER, and Associate FrCKLING join, dissenting: discipli Judges, underpinnings to tive the Board’s arrives and somehow recommendation its The court is unanimous in concur- particular in this conclusion finding rence with the why justice, need not it administration Special Watergate agreement 5. With pursue question, it. do not resolve plea guilty, Prosecutor, respondent, by a violation of U.S.C. § was convicted of par- Judge Yeagley himself from 2. recused of one month’s misdemeanor. A sentence ticipation in matter. suspended, imprisonment $100 and a fine was placed unsupervised respondent and pertinent D.C.App.B.. XX, in states Sec. probation for one month. part: practice law the District The license to Shorter, Jr., In the See Matter John A. proclamation continuing is a Columbia July 7, S-31-75, No. D.C.C.A. dated Order en- the holder is fit to be court judicial mat- trusted and ters, 1. The Board found that made di and aid in administration repeated misrepresentations justice attorney rect and in an an and as an officer swering persistent inquiries respecting every duty a mat of the court. cipient is the being litigated Department privilege ter of that to conduct himself purposes opinion times, professionally per- Justice. For of this it at all both necessary sonally, conformity to cite record these with the standards misrepresentation imposed upon instances of and since the members of the Bar as con- majority explain why privilege does not it doubts re ditions law. spondent’s prejudicial conduct was to the thirty days discretion, case a nevertheless focused on appropriate.4 a few salient considerations in determin- appropriate punishment ing the disci- Initially, logic I am unable to follow plinary proceedings. princi- These are my colleagues behind the conclusion of pally: integrity of the maintenance Supreme that because the of the Court profession eyes pub- of the thought State of Arizona censure was lic, from impose5 sanction to incompetent lawyers, unethical or the de- three-judge committee of the United States lawyers engaging terrence of other District Court for the District of Columbia conduct, unprofessional and the seri- disciplinary determined no action was ous action warranted,6 view Committee’s reputation may have on the and the live- peri- would benefit from a attorney. lihood of [Citations od of lacks reflection self-examination omitted.]9 significance real and its recommendation to The Committee addressed the pu- Board loses all but non, discipline, recog- light vel of its is, My position nitive consequences. sim- court, responsibility nized to the to the ply, respon- considering the nature of Bar, hand, public. the one On misconduct, proven dent’s expressed in this case belief that fairly reasonably dis- *5 important especially ensure that to charged responsibilities in recommend- public integrity in the of the le- confidence ing appropriate discipline be to profession gal undermined. On the not be apparent and there is no reason of record other, acknowledged obligation its clear why adopt that this court should not respondent fairly weigh to the circum- to recommendation.7 misconduct, mitigation stances of his scrupulously ap- specific respondent’s The reference to proached proper discipli- the issue of the previously at the bar unblemished career pro- nary by respondent’s public service, action merited the actions other of misconduct,8 stating respondent’s fessional that: tribunals which have evaluated terms, disciplinary
misconduct
and the
supposedly
reasons which
motivated re-
years,
. court deci-
Over
sions,
spondent
testify
to
as he did before
com-
reaffirming the breadth of
while
Kleindienst,
XI,
4(3) (e), provides
D.O.App.R.
6.
In the Matter
Richard G.
4.
that
Sec.
of
power
duty:
(D.D.C.1974).
74-63
Misc.No.
the Board shall have
findings
To
and recommenda-
review
may
hearing
prepare
agree,
course,
7.
that
this court
make
tions of
committees and to
of
independent
findings
an
on the nature of the
its own
and recom-
forward
discipline
imposed.
mendations,
together
g.,
be
E.
Levine v.
with the
to
record
committee,
Grievances,
proceedings
hearing
Comm. on Admissions
before the
117
U.S.App.D.C.
218, 219,
to this
shall
find-
328 F.2d
520
court which
review sucli
ings
and recommendations
on the basis of
the record and
an
shall enter
provides
D.O.App.R. XI,
mis-
Sec.
determining
proceeding.
order
grounds
conduct shall be
for:
Disbarment;
(1)
5. The Board of Governors of
Bar
or
the State
(2)
period
eight
(one
Suspension
of Arizona voted
to
for a
not exceed-
six
member
voting)
ing
years;
not
for censure.
Three of the six
five
or
minority
(3)
by
court;
they thought
in the
indicated
Public censure
or
punishment
Discipli-
reprimand
Private
The
recommended was insufficient
inquiry committee;
to fit
an
offense. The President
or
or
of the Bar
agree,
tended to
but voted for
Informal admonition
Bar Counsel.
censure because
impossible
otherwise
it would have been
to
Report
Three,
reach
In the
decision.
Matter
a Member
Committee Number
Arizona,
Board,
3-74B,
the State Bar
Richard G.
Bar Docket No.
Kleindienst,
(Sup.Ct.Ariz.1975).
No. SB-60
at 23.
person
no
providing,
Final-
statute
inter alia that
mittee
Senate.
United States
testifying in
arriving
of a
shall be excused from
a con-
ly, in
at its recommendation
spiracy
suspension,
ground
ex-
trial
that the testi-
one-year
the Committee
mony
any
of a crime
pressed
“discipline of
tend to convict him
its belief that
forfeiture,
subject
penalty
or
severity
the serious-
him to
or
lesser
undercut
testified,
person
Respon-
shall
regards
having
but that
such
ness with
the bar
which
subject
penalty
not
forfeiture
any
or
dent’s misconduct.”
any
concerning
on
matter
he
tes-
did
punitive as-
majority
on the
focuses
tify.
Rouss
claimed
because
recommendation,
pects
statute he
was immune
independent
no
making
finding that
charges
since
misconduct
public
purpose would be served
a one-
police
he had
trial of
testified
five
stated,
year suspension. As the Committee
inspectors
jus-
conspiracy
obstruct
however,
quoting
Steinberg,
from In re
suppression
tice through the
of the testimo-
(S.Ct.Wash.1954):
P.2d
ny
partic-
Rouss
witness.
himself'had
ipated
arrangement
keep
the wit-
necessarily
It is
sus-
not
ness
without the state
avoid service of
pension
attorney
un-
imply
that an
process
testimony
gave
at trial
he
worthy
period
during
trust
was in substance a confession of his own
suspension,
thereafter he
guilt.
It
is in this context that
again
profession.
fit
follow his
Sus-
Justice
wrote,
rejecting
argument,
Cardozo
pension
carries with
an unavoidable
punishment. Indeed,
disbarment
punitive consequence,
proportionately
but
noted,
Mansfield
said much
Lord
had
as
punitive
it is
con-
the same unavoidable
Brounshall, Cowp.
parte
Ex
sequence
reprimand
which results from
salutary
effect
disbarment.
act,
punished
One is
criminal
giving
period
...
“a
has been
the former Chief
*6
for
reflection and self-examination”
Judge of the United
District Court
States
“may
As
which
be of benefit to him.”
for the District of
who
Columbia
pointed
before,
we have
out
entry
plea
guilty
sentence
a
after
reprimand, suspension,
and disbarment
a
2
violation of U.S.C. 192. Disbarment
§
necessary parts
is the
All are
same.
disciplinary proceedings
or
are not crimi-
discipline by
process
overall
however,
proceedings,
“notwithstanding
nal
the courts maintain
standards of
they
very
damaging
serious
have
and
moral and
conduct.
12
not-
consequences.” As
Cardozo
Justice
ed,
In support
grant
its
statute in Rouss was a
of am-
ultimate
nesty,
majority
giving
Rouss the same
cites disbarment cases which ad-
principle
discipli-
pardon.
pardon,
a
“But
as
legally,
vance the
as
we have
seen,
penalties
punishment.
though
for-
They rely,
action is not
it blots out
and
feitures,
principally,
impo-
upon
does not render the courts
words of Mr. Justice
protect
tent to
their honor
disbarment.”
(then-judge)
excerpted
Cardozo
Rouss,
Rouss,
81, 84,
supra
re
In re
case of In
211
116
at
Thus it would
N.Y.
respon-
say
782,
legally
not
correct to
(1917).11
N.E.
783
There
punished,
majority
being
dent
as the
penalty
was whether disbarment is a
or
term,
uses the
even if
had rec-
meaning
penal
forfeiture within the
of a
Board
run-
Id.
and retention
licitation of business
principle.
merely repeat
ners),
Stevens,
Randolph,
(Mo.1961)
rel.
11. In re
ex
91
v. United States
347 S.W.2d
12. Garfield
(solicitation
personal
through
109,
injury
App.D.C.
also Booth
See
cases
32
140
7,
Fletcher,
App.D.C. 351,
splitting
laymen),
101
and
In re
v.
355 n.
fees with
69
supra.
;
Black,
Black,
(so-
(1939)
(1961)
In re
n.
Or.
or Committee “dwelt on punishment petitioner’s paramount purpose as a On petition for consideration recommending rehearing, suspension for it is . .” my judgment
In petitioner’s it is reed a thin Ordered that peti- aforesaid majority rejecting which the relies tion is denied.
recommendations of the of the District of to which Columbia Bar GALLAGHER, JJ., FICKLING have recently, so after much delibera- petitioner’s petition. would grant tion, entrusted responsibility to disci- pline justifi- Separate its own Judge I find no Statement of members. Associate (joined by cation the record action Judge for such and GALLAGHER Associate must, for the given, reasons disassociate Fickling): myself hope express from it.13 I grant rehearing in I voted this case disposition will not thrust, In its main the Pe- one reason. be taken as an the Bar is indication that Rehearing tition does not seek to attempting impose higher on standards open proceeding on the the Kleindienst membership judiciary than the will- action, I. merits nor do accept, ing for this would not one case ac- accepts finality Petition justify any such conclusion. court, so tion taken there divided respectfully dissent. do I. concealing wished, 13. In a similar of three case the evidence from years recently imposed. government, State ex been so. but he did not seek to do (Sup. (Attested by rel. Nebraska State Ass’n Cook Bar v. letter from the States United Ct.Neb., 1975). There, Accordingly, might Attorney.) 232 N.W.2d District urged mitigation, had off if he liad admitted better been “(1) early complete involvement, He made an dis which he nonetheless did his cooperated fully cooperated (7) personal closure thereafter detriment. Cook his responsible having (Attested seeking promised authorities. letter been im- without relatively prosecutor.) charge perjury. (Attested munity is a from young He occupied position man At- who a sensitive States District letter from United governmental subject voluntarily resigned agency, torney.) and was He *7 persons (9) publicity the him in and hu- to direction of senior to The Chairman of SEC. age experience closely and and with disclosures and identified miliation attended Cook’s highest authority (3) resignation are, themselves, civil in the in nation. substantial the transgression punishment. (10) His conduct was an in His in the isolated continuation volving essentially single not, a course of conduct does under the circum- of law clients, public, (His stances, in an otherwise a risk to the unblemished career. constitute previously justice. high (11) record standards or untruths, The ethical the administration present competence they may been, high legal as well as his hurt whatever result, is attested and did not and witnesses and numerous letters no individual were persons good result, repute.) (4) from not justice. to in the obstruction of He was intended simply injure (12) lawyers motivated desire not to Certain other involved (5) lightly Maurice in Stans. scandals have The office of United recent national been plea Attorney, States District with dealt bargain He did not seek to whom re with. spondent cooperated, cooperation Attorney either the or believed with District his Special complete forthright. Watergate force, with that office was Prosecutor’s and (Attested by prosecute letters those offices from decisions not conspiracy the United States Attorney.) perjury persons Only District Cook either for or two to ob- testify justice respectively pol- could as struct were to what in based occurred the con on icy encourage and, versations between Cook and if consideration Stans recantation persisted (as (Attested by did), Stans in his the merits. version letters from probably succeeded, offices.)” Cook could have Id. at had he so those 22-24. of a Unified sons for establishment Disciplinary But the Board—a creature others, jurisdiction, inBar this as well as instrumentality this court—is now itself— proce- was to the Bar asking guidance this as to enable court expectation then legal being applied dure and standards to be in reasonably And, impose and seek to enforce disciplinary proceedings. future membership. believe why standards on its I frankly, I do this not understand hope request generally being this is fulfilled. genuine court has turned down this Disciplinary of its own If this Board.1 Lastly, Rehearing as- Petition for give guidance court will not the Board the Disiplinary apprehensive serts is Board seeks, place get there is no I other it. impact majority’s about the future nevertheless, observations, will make a few statement this thought with the effort not entirely valueless. is important is that disci- What pline imposed punitive impact not have a essentially I think the Board is sound primary its effect. the concepts it on the offers to this court The every Board concerned that relationship Disciplinary between the spondent may pri- be able show that the (see p. Board and its Committees mary any suspension effect of censure or 2-3 Disciplinary of the Board’s Petition ability prac- is its on his or her for Rehearing proceeding). in this While law; they tice will characterize suggest trappings I would not that all the punitive. this asks effect as Board discipli- applied to administrative law be majority’s so language be modified nary proceedings it seems to me that the concept will not hold”. “[take] relationship between a and the Board is rather simi- Of course or disbarment of hearing lar relationship between lawyer punitive It could effect. examiner and an I agency. administrative say hardly be viewed But to otherwise. think, too, general that in the rela- terms imply reasonable that a sanc- tionship between accepted generally tion not aimed at similarity this court has to the rela- punish- goals considering tionship agency between an administrative proceedings, these ment appellate and the court.2 being outlined responsi- This court of course has final proceeding: in this bility. But if the Board acts funda- reason, integrity
mental fairness and think we maintenance of the [T]he adopt eyes public; should profession its recommendations. We “split should unethical hairs” with Board neither from incompetent lawyers; nor in imposing matter of sanction deterrence un- severity. go lawyers engaging If it should at some time of other beyond conduct; serious the bounds fairness or of essential *8 reason, may displays lack action a substantial reputation uniformity, it this court have and the livelihood would be time for on the step all, attorney. After the main rea- in. one of pro- finding request naturally recommendation came Board's reviewing. brought essentially There cedural of the case are context that we problems find- Committees’ the surface the related to us. when the be times par- ings and recommendation Compare, findings significance 2. The for this court. of the ticular recommendations Corp. Committee, g., v. National Camera as the e. Universal well Board, hearing record, Relations 340 U.S. are there to examined Labor court, law, as in L.Ed. 456 administrative but S.Ct. While the punish,3 imposition suspen- necessarily
sion or the ef- disbarment punishment disciplined
fect of on the attor-
ney.
Any point extended discussion on this probability
would in all result in an aca-
demic exercise in It seems to semantics. enough say
me if
Board, Committees, fairly and its
and judiciously recommend a they
where think one indicated I will
find approval. this course to have future
believe the mainly Board is right hope stays track and I there.
There is no cause to be deterred. Leroy NESBITT, Appellant.
In the Matter of
No. 9482. Appeals.
District Columbia Court of Aug. 21,
Submitted Sept. 30,
Decided. *9 Wall,
3. Ex Parte U.S. S.Ct. L.Ed.