Monday, September 12, 2011

A Failure Of Proof?

As a follow on to my post last Thursday about the lamentable decision of the D.C. Court of Appeals in the disciplinary case involving Claude Allen, I will relinquish my soap box after making one more observation.

The court agrees with its Board on Professional Responsibility that Bar Counsel failed to prove that the attorney's multiple, deliberate thefts involved "dishonesty for personal gain." Thus, no moral turpitude. Thus, no mandatory disbarment.

The court here overlooks one salient fact and its own rules.

The attorney was convicted of misdemeanor theft, which under Maryland law requires proof beyond a reasonable doubt of a willful intent to permanently deprive the owner (here Target) of its property. The conviction is conclusive proof of all elements of the crime for disciplinary purposes. See Rule XI, section 10(e)(linked above).

Bar Counsel was not obligated to prove intent to steal, as the conviction operated as conclusive proof of the attorney's intent. If stealing isn't dishonesty for personal gain, two plus two may well equal five.

A court might hold (counterintuitively, in my view) that some crimes of dishonesty for personal gain are sympathetic enough to avoid a finding of moral turpitude. I see no such circumstances here.

I cannot see how any finder of fact or concluder of law finds no dishonesty for personal gain in a series of carefully devised thefts that result in a criminal conviction.

Of course, one way is to blame Bar Counsel for a "failure of proof." Next time, they will be sure to put a witness inside the attorney's head. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/09/as-a-follow-on-to-my-post-last-thursday-about-the-lamentable-decision-of-the-dc-court-of-appeals-in-the-disciplinary-case-i.html

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