Thursday, September 8, 2011

Claude Allen Suspended

The District of Columbia Court of Appeals has imposed a one-year suspension of Bush-era official Claude Allen. The ethical violations relate to his conviction for petty theft.

The conviction for misdemeanor theft of property involved thefts of a Bose stereo, an RCA stereo and a Kodak printer from Target. He did this through "a scheme of purchase and fraudulent return." He would end up with both the item and his purchase money.

 Expert testimony of the forensic psychiatrist was that he "qualifie[d] for a diagnosis of kleptomania..." One might wonder whether this condition qualifies as a mitigating factor. Indeed, one might think that a compulsion to steal is quite a bad trait for a licensed attorney.

Allen, who served as an Assistant to the President of the United States for Domestic Policy, attributed the conduct to the stress of dealing with Hurricane Katrina. The court seems to buy that explanation: "On this record, we agree with the Board [on Professional Responsibility's] determination that unrebutted evidence that respondent's actions were the reflection of extreme stress was an exceptional circumstance that precluded a finding that [he] engaged in intentional dishonesty for personal gain." The court agrees with the board that Bar Counsel failed to prove his dishonest intent.

With all due respect, whatever the stress reflects, I have more than a little difficulty accepting the proposition that one can engage in an elaborate scheme to steal stereo items and a printer and not "engage in intentional dishonesty for personal gain." Maybe the intent is to swing to the soothing sounds of Sinatra. The conduct nonetheless involves intentional dishonesty for personal gain.

 Under D.C. disciplinary law, dishonesty for personal gain equals moral turpitude. Moral turpitude means disbarment. This interpretation of a governing federal statute dates back to a case involving another Presidential aide, Charles Colson.

Allen was suspended for 90 days in Pennsylvania and Virginia for the same misconduct.

Prior to these incidents, he had been nominated to the United States Court of Appeals for the Fourth Circuit.

Allen was represented in the case by Beth Stewart of Williams & Connolly. He did not file an exception to the recommended one-year suspension of the Board on Professional Responsibility, which the court followed here. Bar Counsel had sought disbarment.  

If you are one who closely watches D.C. bar discipline cases (i.e., me), the sanction analysis is pretty interesting here. The court discusses and largely relies on the John Spiridon case. Spiridon was a law grad who never was able to secure employment as an attorney. He had alcohol problems. He engaged in petty theft as a bus driver going up and down the boardwalk strip at Ocean City, Maryland. He stole from the till and was caught in a sting operation.

Ironic that Spiridon would be the most comparable precedent for a theft case involving a White House aide.

Disclosure: I handled the Spiridon case.

One final thought here. My friend Jake Stein recently mentioned to me that he is thinking about writing a book titled The Law of Common Sense. An elaborate scheme to steal on multiple occasions does not involve dishonesty for personal gain when common sense is ignored and it's a lawyer doing the stealing.  (Mike Frisch)

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