By Lance J. Rogers
Suspension of one year rather than disbarment is the fitting sanction for a lawyer convicted of shoplifting where the extraordinary pressure of his White House job ruled out a finding that he acted dishonestly or for personal gain, the District of Columbia Court of Appeals decided Sept. 8 (In re Allen, D.C., No. 06-BG-958, 9/8/11).
In an opinion by Judge Vanessa Ruiz, the court upheld the disciplinary panel's conclusion that the crimes did not evince moral turpitude and a desire for personal gain but instead were driven by family-related stress factors and the grueling job of engineering the White House response to Hurricane Katrina.
Claude A. Allen stole merchandise worth more than $800 from retail stores over a three-month period by fraudulently obtaining refunds for items he had not bought. He pleaded guilty in 2006 to one count of misdemeanor theft of property and was sentenced to two years of supervised probation, 40 hours of community service, and fined $625.
According to the court, the scam worked like this: Allen purchased an item at a department store with his credit card. He would later go back to the store, select an identical item from the shelf, and then “return” the item using the original receipt.
At the ensuing disciplinary proceeding, Allen stipulated that the prosecution could have proven three separate thefts if the matter had gone to trial. After listening to testimony from Allen and his psychiatrist, the hearing committee found that Allen violated District of Columbia Rules of Professional Conduct 8.4(b) (criminal act reflecting adversely on fitness to practice) and 8.4(c) (dishonesty, fraud, deceit, misrepresentation). It recommended a 90-day suspension of Allen's law license.
The committee noted that Allen had received and completed 90-day suspensions from practice in Virginia and Pennsylvania for the same misconduct.
There was not enough evidence of moral turpitude to warrant disbarment, the committee said. It cited as mitigating circumstances the extraordinary stress of Allen's job as a special White House assistant tasked with advising President Bush on domestic issues and with leading the White House response to the Hurricane Katrina disaster.
The committee commented on testimony that Allen faced significant pressure at his job and “identified closely” with the people suffering from the hurricane.
It found he was deeply affected by the sight of a man sitting in a chair in front of the Superdome for days with a sign on him saying, “I've passed away. Please bury me.”
It also pointed to Allen's grueling work schedule, full cooperation, lack of disciplinary history, significant remorse, the disruption to his family caused by five moves over an eight-month span, and the psychiatrist's testimony that the lawyer suffered from an “adjustment disorder” traceable to the extraordinary stress of his job and that he exhibited symptoms of kleptomania.
Bar counsel filed an exception, arguing that Allen's misconduct involved moral turpitude given the elaborate deception, planning, and stealth required to execute the swindle. The Board on Professional Responsibility, however, ruled that bar counsel failed to prove moral turpitude with clear and convincing evidence that Allen engaged in the thefts for personal gain.
It recommended a one-year suspension of Allen's D.C. license; the court adopted that recommendation.
A misdemeanor conviction cannot trigger disbarment unless it involves moral turpitude, the court said. Quoting In re Sims, 844 A.2d 353, 20 Law. Man. Prof. Conduct 175, remand vacated, 861 A.2d 1 (D.C. 2004), the court defined moral turpitude as a crime involving “baseness, vileness or depravity” that was “motivated by personal gain or manifest intentional dishonesty for the purpose of personal gain.”
Bar counsel argued that Allen's conduct was motivated by personal gain in that he engaged in purposeful dishonesty several times and intended to keep the stolen items—a Bose stereo, an RCA stereo, and a Kodak printer.
But the court sided with the hearing committee and the board, both of which found that Allen was not motivated by a desire for personal gain but instead was reacting to an extraordinary stressful situation.
The board concluded that Allen's behavior “was the aberrational result of the exceptional stressors in his personal and professional life, rather than a desire for personal gain,” the court observed, saying there was support in the record for that determination.
In any event, the court continued, the case boils down to the allocation of the burden of proof. Bar counsel did not overcome the evidence that Allen's judgment was clouded by the stress he experienced, Ruiz stated.
A one-year suspension, the court added, is consistent with sanctions for comparable misconduct previously handed out by the court.
Allen was represented by Beth A. Stewart of Williams & Connolly, Washington, D.C. Assistant Bar Counsel H. Clay Smith III, Washington, represented the Office of Bar Counsel.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8ljmr6 .
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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