Thursday, September 8, 2011

Former White House Aide suspended for one year only over definition of "moral turpitude" -- UPDATED

In March of 2010, I reported the story that appears below. The case was appealed and the Court of Appeals just announced its decision affirming the decision.  If you remember the original story, go to the bottom for the more recent update.

March 12, 2010:

The Blog of the Legal Times is reporting today that the D.C. Board on Professional Responsibility has recommended to the D.C. Court of Appeals that former White House aide Claude Allen, who pleaded guilty in 2006 to one misdemeanor count of theft of property, be suspended from the practice of law for one year.

Allen, who at one point was nominated by President Bush to the U.S. Court of Appeals for the Fourth Circuit, admitted that, on several occasions, he bought an item at a Target store and then later went back to the store with the receipt, pulled an identical item off the shelves, and used the receipt to “return” it, allowing him to keep the purchased item at no cost.

On these facts, the Board recommended a suspension because, according to its report, bar counsel "failed to prove moral turpitude." Had bar counsel proven moral turpitude, the lawyer would have been disbarred. According to the report, the Board stated that "Allen’s actions were “deceptive and dishonest”" but not enough to show moral turpitude.

I am sorry, I must be missing something.... Let's review,... so the guy goes to the store, lies, cheats and STEALS... repeatedly.... for kicks and giggles.... (I am guessing a White House aide, federal appeals court nominee does not really need a few things from Target that badly!).... and that is not moral turpitude?!?

I guess I have to review what 'moral turpitude' means....

Ok, so let's see... According to the BLT, the Board's report states that “Dishonesty is an important factor in analyzing whether criminal conduct rises to the level of moral turpitude, but not every criminal act of dishonesty involves moral turpitude . . . The key factor, the report says, is “dishonesty for personal gain.""

Hmm... Let me see if I get this.... go to Target, ...lie, ....cheat, ....steal, .... keep money..... "dishonesty for personal gain"?....... Yeah, sorry, ... still don't get it...

How is the conduct here not "dishonesty for personal gain"? Can someone explain this to me?

The guy is a convicted liar and a thief and you are telling me that his conduct is not evidence of dishonesty for personal gain!?

Is the Board saying that it is not so bad because the guy stole "only" about $800 or so.... So stealing is not so bad as long as it is not that much? Is that what you are telling me? Is that a lesson you'd like me to teach my 5 year old?

I think I have made my point. I hope the court disregards the recommendation and does the right thing here. This guy should be disbarred. Period. If he needs psychiatric help, get him help, do whatever, but don't allow him to represent people whose property, lives and money depend on him until he shows he can be trusted. Shame on the Board.

More on the story here.  You can find the Board's report through this link.

UPDATE:  September 8, 2011

More than a year since the decision of the DC Board on Professional Responsibility, the DC Court of Appeals has affirmed the decision and imposed a one year suspension.  On appeal, Bar Counsel had requested that the Court reject the Board's conclusion and order disbarment.  As I argued back when the Board's decision was issued, I agree with Bar Counsel.

But the Court did not agree, holding that a misdemeanor should never be considered, per se, a crime involving moral turpitude - even if it could be considered to be a "serious crime."  But that was not the end of the question.  Finding that the conduct did not involve moral turpitude per se, the court had to evaluate the specific facts of the case to determine if, under the circumstances, the conduct should be considered to have involved moral turpitude.  The court concluded that it did not.

Bar counsel argued that the conduct involved moral turpitude because it was intentional dishonesty for personal gain.  The court saw it slightly differently concluding that, although "it is clear that respondent committed an intentional act of dishonesty, . . . and because respondent kept the stolen items, he actually personally gained from the commission of the theft," the lawyer's actions "were not so much motivated by a desire for personal gain as by psychological disturbances."

I understand the court's reasoning, but I remain unconvinced, particularly when the Hearing Committee who heard the original evidence did not give credit to the testimony of the attorney's doctor whose opinion and diagnosis was described as imprecise and "changing" -- which I take to be a nice way of saying it was unconvincing to say the least.

Judge for yourself and let me know what you think....  The case is called In re Claude A. Allen and the opinion of the court is available here.

For more on the story go to the Blog of the Legal Times and the Legal Profession Blog.