DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : ROBERT L. REHBERGER, : : Respondent. : Bar Docket No : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter is before the Board on Respondent s exceptions to the report and recommendation of an Ad Hoc Hearing Committee. The Hearing Committee concluded that Respondent s criminal offenses of false imprisonment, sexual battery, and simple battery, for which he was convicted in Georgia state court, involved moral turpitude on the facts, and on that basis recommended disbarment pursuant to D.C. Code (a). In the alternative, the Hearing Committee concluded that Respondent violated several disciplinary rules and recommended two years suspension, with a fitness requirement, as a sanction for those violations. As explained below, the Board agrees with the Hearing Committee. I. PROCEDURAL HISTORY On May 15, 1997, Respondent was convicted by a jury in the Superior Court of Henry County, Georgia, of the criminal offenses of false imprisonment, sexual battery, and simple battery. Bar Counsel s Exhibit ( BX ) 3. He was sentenced to 10 years imprisonment on the felony count of false imprisonment, and one year of imprisonment on each of the misdemeanor charges, all to run concurrently. Id. The Georgia trial court judge also disbarred Respondent

2 after finding that the criminal conduct involved moral turpitude. BX 4. Disbarment was upheld by the Supreme Court of Georgia. BX 6. Pursuant to D.C. Bar R. XI, 10(a) and 11(b), Bar Counsel notified the District of Columbia Court of Appeals (the Court ) of both Respondent s criminal conviction and his disbarment in Georgia. On March 17, 1998, pursuant to D.C. Bar R. XI, 10(c), the Court issued an interim suspension order against Respondent, and ordered the Board on Professional Responsibility (the Board ) to institute a formal proceeding to determine the nature of final discipline in this jurisdiction, and specifically to determine whether the elements of the offenses involve moral turpitude within the meaning of D.C. Code (a). In re Rehberger, No. 98-BG-333 (D.C. Mar. 17, 1998). In addition, pursuant to D.C. Bar R. XI 11(d), the Court ordered the Board to consider whether reciprocal discipline should be imposed or whether the matter should proceed de novo. Id. The Board directed Bar Counsel and Respondent to brief the issue whether the criminal convictions involved moral turpitude per se. Bar Counsel took the position that Respondent s felony conviction (false imprisonment) did not inherently involve moral turpitude, but recommended reciprocal discipline of disbarment based upon the order of disbarment in Georgia. Respondent agreed with Bar Counsel regarding the absence of moral turpitude per se, but contested the imposition of reciprocal discipline. 1 On March 23, 1999, the Board considered these three matters, concluding that (1) the felony offense of false imprisonment, though a serious crime, does not inherently involve moral turpitude in this jurisdiction, and that moral turpitude per se does not attach in this 1 Bar Counsel also notified the Court of reciprocal discipline imposed against Respondent by the Supreme Courts of Illinois and Missouri. Because those disbarment orders were clearly reciprocal in nature, based on the original disbarment in Georgia, the Board does not view them as changing the analysis required in this case. 2

3 jurisdiction for the other (misdemeanor) convictions, BX 10 at 1, 4, 11; and (2) reciprocal discipline should not be imposed because of a lack of consistency both in disciplinary violations found and sanctions imposed in cases involving sexual misconduct by an attorney. Id. at 6. The Board ordered the matter referred to a Hearing Committee for determination whether Respondent s offenses involved moral turpitude on the facts, and, if not, for determination of the appropriate discipline to be imposed based on the entire record. Id. at 11. On July 15, 1999, Bar Counsel filed a three-count Specification of Charges. BX B. Count I alleged violations of District of Columbia Rules of Professional Conduct 1.7(b)(4) (conflict of interest) ( Respondent represented a client with respect to a matter in which his professional judgment on behalf of the client was or reasonably may have been adversely affected by his personal interests ), 8.4(b) ( Respondent engaged in criminal conduct that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects ), and 8.4(d) ( Respondent engaged in conduct that seriously interferes with the administration of justice ). The Rule 8.4(d) charge was eventually abandoned by Bar Counsel. Count II sought determination of the final discipline to be imposed based upon the Court s decision that Respondent was convicted of a serious crime under D.C. Bar. R. XI, 10(c). Id. Count III alleged that Respondent s conduct for which he was convicted involved moral turpitude on its facts, mandating disbarment pursuant to D.C. Code (a). An Ad Hoc Hearing Committee held an evidentiary hearing on October 24, 2001, in which Respondent, proceeding pro se, participated by telephone. Respondent was given notice of the hearing and an opportunity to testify in person but requested and was granted leave to participate by telephone (over Bar Counsel s objection). No live testimony was presented at the hearing, and the hearing record consists essentially of the record of Respondent s criminal trial, 3

4 as supplemented through additional written filings. Respondent argued that the Hearing Committee should not accept his criminal conviction as valid and introduced exhibits pertaining to his thus-far unsuccessful habeas corpus challenge to his criminal conviction, which is based principally on a constitutional challenge to the composition of the grand jury that returned the indictment. In the alternative, Respondent argued that his crime did not involve moral turpitude on its facts, and that the appropriate sanction for the misconduct proven at his trial would be less than disbarment. He also introduced several signed but unsworn statements of various individuals attesting to his good character; none of those individuals was called to testify at the hearing. On August 7, 2003, the Hearing Committee issued a report recommending that Respondent be disbarred for a crime of moral turpitude on its facts and for his related violations of Rule 1.7(b)(4) and Rule 8.4(b). The case was submitted for the Board s consideration, without oral argument. 2 II. FINDINGS OF FACT 1. Respondent was admitted to the practice of law before the District of Columbia Court of Appeals, by motion, on October 8, 1985, and assigned Bar Number BX A. 2. As of May 15, 1997, Respondent was also licensed to practice law in five other jurisdictions, including Georgia, Missouri, Illinois, Florida, and Oklahoma. BX A 4, 6, 9; BX 14 at 228 (Bates St. 350, 358). 2 On January 15, 2004, the Board continued the originally scheduled oral argument because Respondent was incarcerated, and it suggested that Respondent consider retaining or seeking the appointment of counsel to represent him. Thereafter, and after the Board assisted Respondent in identifying an attorney, Respondent elected to proceed pro se and asked the Board to defer consideration of this case. We agree with Bar Counsel that Respondent s decision at this late date to represent himself does not support deferring the Board s consideration of this case any further. 4

5 3. At the time of the events in question, Respondent was a 47-year-old, solo practitioner in Stockbridge, Georgia, where he had practiced for eight years. BX 14 at His practice included agricultural subsidy matters, workers compensation, social security, divorces, and some criminal cases. BX 14 at On May 15, 1997, following a four-day criminal jury trial in the Superior Court of Henry County, Georgia, Respondent was convicted of false imprisonment, a felony, and sexual battery and simple battery, both misdemeanors, for his conduct toward Bronwyn Cherry, who was then 27 years old and was consulting Respondent in connection with a divorce. BX 3; BX 12 at Ms. Cherry obtained Respondent s name from the telephone book and retained him to assist her in an uncontested divorce. BX 12 at 64, 68. At that time, Ms. Cherry had one child, and she was working at two jobs to support herself and her son. BX 12 at 64. Her estranged husband s attorney had prepared a property agreement, and Ms. Cherry sought Respondent s assistance in reviewing the document and improving the terms of the agreement to meet her needs (i.e., she wished to increase child support and get the newer of the couple s two cars). BX 12 at 63-65, BX 14 at 234. At the February 5 meeting, Ms. Cherry provided to Respondent photographs of injuries she sustained at the hands of her husband. BX 12 at (Bates St ). When Respondent told her she did not need a lawyer and that she should try to work out the changes with her husband on her own, Ms. Cherry started to cry. BX 12 at (Bates St ); BX 14 at (Bates St ). At that point, Respondent agreed to help her and set an amount for a retainer, but told her not to worry about immediate payment. BX 12 at 68 (Bates St. 194). As she got up to leave, Respondent took one of her hands to assist 5

6 her up and to shake it, while putting his other arm around her shoulder. BX 12 at 71 (Bates St. 197). She testified that she felt uncomfortable at the time, but she did not say anything. Id. 6. In the days following that meeting, Respondent called Ms. Cherry a number of times, ostensibly to request additional financial information regarding her husband; he was unable to reach her directly, but on one occasion, he left a message detailing what he needed. BX 12 at 72 (Bates St. 198). 7. Ms. Cherry testified further that, two weeks later, on February 19, 1996, she went to Respondent s office mid-afternoon, without an appointment, to drop off one of the requested documents. BX 12 at 72 (Bates St. 198). She was told to wait because Respondent wished to speak with her. BX 12 at 75 (Bates 201). Another client, an elderly gentleman, was already in the waiting room. Id. Respondent came out of his office and escorted Ms. Cherry back to his office, leaving the other client sitting there. Id. Respondent closed the door to his office. BX 12 at 76 (Bates St. 202). 8. Ms. Cherry was in some distress at this meeting. Ms. Cherry testified that she told Respondent that she was on her way to Magistrate s Court to make a complaint against her husband because her husband had made a series of telephone calls to her on the previous evening which were sufficiently threatening that she had called the police, and they had intervened. BX 13 at 106 (Bates St. 234). She was concerned that she might lose custody of her child if she sought more child support. BX 14 at 240 (Bates St. 370). 9. The details of the subsequent actions, for which Respondent was convicted, are set forth concisely in the appellate decision in Rehberger v. State, 510 S.E.2d 594 (Ga. App. 1998): 6

7 Two weeks later she returned with one of the requested papers, arriving at about 3:00 p.m. Rehberger escorted her into his office, closed the door and the two stood in front of his desk discussing the papers. The victim was holding her umbrella, pocketbook and day-planner when Rehberger asked if she had the original of her husband s pay stub. She indicated it was in the planner and Rehberger took the book and tossed it on his desk. He grabbed her right arm and pulled her against him, holding her with his right arm. He rubbed his body against her while holding her so tightly she could feel he was aroused. He rubbed her backside with his hand, then took her hand and rubbed it up and down on his groin. The victim attempted to push away but he continued to grope her and pulled her skirt up high enough to reveal her underwear. At one point he said to her What s the matter, you got a boyfriend? I m sure you do. You re a beautiful girl. Rehberger pulled open Ms. Cherry s shirt, exposing her breast which he touched. The victim said, Please don t; I need to go, and she clutched her shirt to her body. Rehberger said, Well, you can t fault me for trying and put his mouth on hers. She continued to push him away and tell him, Please don t, but when he let go and she turned to leave, he pulled her back. He began rubbing himself back and forth on her backside. He had one arm around her waist and with his other hand held her right arm over her head. She finally got free, grabbed her book and went out the door. 510 S.E.2d at ; BX 12 at (Bates St ). 10. Immediately upon leaving Respondent s office, Ms. Cherry went to the local police department to make a complaint against Respondent. BX 12 at 87 (Bates St. 213). The information contained in the police report is consistent with Ms. Cherry s testimony at the criminal trial. Compare BX 12 at (Bates St ) with BX 13, (Bates St ); BX 12 at (Bates St ). 11. That evening, Respondent telephoned Ms Cherry at her home at least twice. She was out at the time of the initial call, and he left no message; however on her return home, she pressed *69 and learned that a call had been placed from Respondent s office phone. When Respondent called a second time that night, Ms. Cherry was present but did not answer the telephone, and recognized Respondent s voice as he left a message on her answering machine. 7

8 Ms. Cherry received three additional calls with no message left that evening, and called the police. BX 12 at 89-91, (Bates St , ); BX 13 at (Bates St ). The substance of Respondent s voic message of that evening, as well as one previous voice message, were submitted as State s evidence at the criminal trial, but were not made part of the record in this disciplinary case. 12. The police investigated Ms. Cherry s assault complaint. BX 12 at (Bates St ). A bill of indictment was prepared against Respondent (who waived grand jury indictment), charging him with four crimes relating to the February 19, 1996, sexual assault incident. BX 1 (Bates St ). Respondent s first criminal trial ended in a deadlocked jury, and was declared a mistrial. BX 12 at 33 (Bates St. 159). Approximately five months later, a second jury trial was conducted from May 12-15, See four-volume criminal trial transcript, BX At the second trial, only three counts were prosecuted (false imprisonment, sexual battery, and simple battery; the State dropped the aggravated sexual assault (attempted rape) charge. BX 12 at 35 (Bates St. 161). 13. In addition to Ms. Cherry s testimony regarding Respondent s misconduct, two other young women, Rebecca Brown and Lori Tankersly, testified for the prosecution regarding sexual advances made on them by Respondent in the context of client relationships (one a divorce, the other a personal injury case). BX 13 at (Bates St ). Those witnesses came forward when the criminal charges against Respondent were publicized in the media. BX 13, 142, 152 (Bates St. 270, 280). Ms. Tankersly testified, as summarized in Rehberger v. State, 510 S.E.2d at 596, that after a 20-to-30 minute interview about her divorce in his office with the door closed, Rehberger suddenly pulled her against him and forcibly started to kiss her. He had his arm around her and she could feel his erection against her. She pushed 8

9 him away, and he said he thought she was attractive and he wished he had someone who looked like her. As a result of her treatment by Respondent, Ms. Tankersly never returned to Respondent s office, and ultimately abandoned the divorce. BX 13 at 154 (Bates St. 282). Ms. Brown testified that when she was a personal injury client at age 23, in their first meeting without her parents present, Respondent put his arm around her, told her that she was real pretty, and asked her if she would date older men. Id. The incident involving Ms. Brown occurred in 1993, Id. at 138 (Bates St. 266), and that involving Ms. Tankersly in Id. at 148 (Bates St. 276). 14. Respondent took the stand in his criminal case. BX 14 at (Bates St ). He testified about his personal and professional background, his military service and civic involvement. Id. at (Bates St ). Respondent denied any wrongdoing toward Ms. Cherry. Id. at 244 (Bates St. 374). He testified that Ms. Cherry could turn tears on and off with ease. Id. at 241 (Bates St. 371). Respondent testified that he did not even recognize State s witness Lori Tankersly. Id. at 246 (Bates St. 376). Respondent initially denied touching State s witness Rebecca Brown, Id. at 251 (Bates St. 381), but went on to testify that he might have put his arm around Ms. Brown and commented about being too old to date her. Id. at (Bates St ). 15. In his defense, Respondent called several character witnesses: family members, professional acquaintances, a woman with whom he had a current romantic relationship, and former clients, all of whom testified that Respondent had a reputation as a good person and they believed his version of the events. BX 14 at , BX 15 at (Bates St ). 9

10 16. Defense counsel objected to the admission of similar transaction testimony by Ms. Brown and Ms. Tankersly. BX 12 at 22 (Bates St. 148); BX 15 at 331 (Bates St. 463). At the conclusion of the trial, the court noted no objection to any of the State s evidence. BX 15 at 332 (Bates St. 464). There was no objection to the jury instructions. 17. The jury deliberated for several hours and returned unanimous verdicts of guilty on all three counts. BX 15 at (Bates St ). 18. Immediately following the convictions, the trial judge held a pre-sentencing hearing. BX 15 at (Bates St ). The prosecutor made no recommendation regarding sentencing, but recommended that the court disbar Respondent from the practice of law in Georgia based upon his felony conviction and for the misdemeanor conviction of sexual battery, each of which he stated is considered a crime of moral turpitude in Georgia. BX 15 at 341 (Bates St. 473). Respondent re-called his mother, step-father, and the woman with whom he had a romantic relationship at the time, all of whom testified as to their surprise at the verdict, and as to the central role the practice of law played in Respondent s life. BX 15 at (Bates ). Defense counsel stated that Respondent might have some emotional problem, which might be best dealt with through counseling and that Respondent should have an opportunity for reinstatement following a suspension of his license to practice law and completion of counseling. BX 15 at (Bates St. 483). 19. On Count I (false imprisonment), Respondent was sentenced to 10 years, four years of which were to be in confinement, followed by six years probation; on Counts III and IV, Respondent received 12 months confinement on each. BX 15 at 355 (Bates St. 487). The trial court also disbarred Respondent from the practice of law in Georgia. Id. A judgment of conviction was entered on May 15, BX 2. On June 16, 1997, the judgment was amended, 10

11 nunc pro tunc to May 15, 1997, to correct a scrivener s error. BX 3. The sentence also required that during the probationary period following incarceration, Respondent was to submit to counseling as provided by the Probation Department. Id. 20. Respondent s conviction was appealed unsuccessfully, and his disbarment was upheld by the state Supreme Court. BX 4, 6. As set forth in Rehberger v. State, 510 S.E.2d 594 (Ga. App. 1998), on appeal Respondent challenged, inter alia, the admission of evidence of the incidents involving Ms. Tankersly and Ms. Brown. The Court of Appeals found, however, that Respondent essentially abandon[ed] his objection to Lori Tankersly s testimony, as well he might, because her experience was very similar to the victim s and thus obviously probative. 510 S.E.2d at 596. As to the Brown incident, the Court noted: Appellate courts uphold trial court decisions to admit evidence unless clearly erroneous. It is error to allow similar transaction evidence solely "to show a probability that the defendant committed the crime... because he is a man of criminal character," but a court may permit such evidence to show intent, motive, and course of conduct. There must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim's testimony. There need only be evidence that the defendant was the perpetrator of both acts and sufficient similarity or connection between the independent crime and the offenses charged. 510 S.E.2d at 597. (Internal citations omitted.) 21. Thereafter, Respondent sought habeas corpus relief without success. See BX C and attachments thereto. 22. Upon notification by Bar Counsel of Respondent s criminal conviction in Georgia, the Court entered an order on March 17, 1998, pursuant to D.C. Bar R. XI, 10(c), temporarily suspending Respondent from the practice of law in this jurisdiction based upon his 11

12 conviction for a serious crime. In re Rehberger, No. 98-BG-333. The Court directed the Board to institute a formal proceeding to determine the appropriate discipline, and, pursuant to D.C. Code (a), to review the elements of the criminal statute under which Respondent was convicted to determine whether Respondent s conviction involved moral turpitude. Id. 23. Upon notification of Respondent s disbarments in Georgia (original) and Missouri (reciprocal) (BX 9), the Court ordered that the reciprocal matter be considered by the Board in conjunction with the Georgia criminal conviction matter. BX 7, Respondent has no record of prior discipline in this jurisdiction. 25. Respondent provided no evidence of any mental condition relevant to the charges, nor did he provide any evidence that he had completed any counseling following his conviction. Respondent has also never acknowledged the inappropriateness of his behavior in the criminal acts for which he was convicted. III. ANALYSIS The Board agrees with the Hearing Committee s conclusion that Respondent s criminal offense involved moral turpitude on the facts, and on that basis recommends disbarment as mandated by D.C. Code (a). In the alternative, if that conclusion is not upheld, the Board concludes that Respondent violated Rules 1.7(b)(4) and 8.4(b). Those violations alone would warrant at least a sanction of two years suspension with a fitness requirement. In light of Bar Counsel s abandonment of the Rule 8.4(d) charge before the Hearing Committee, as well as Bar Counsel s failure to except from the Hearing Committee s conclusion that no Rule 8.4(d) violation was established, the Board does not address that charge. 12

13 A. Crime of Moral Turpitude The Board has little difficulty in concluding that Respondent s conviction was for a crime of moral turpitude on its facts. A crime of moral turpitude is one that offends the generally accepted moral code of mankind and involves baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men [sic] or is contrary to justice, honesty, modesty, or good morals. In re Colson, 412 A.2d 1160, 1168 (D.C. 1979) (en banc). There is, of course, an element of judgment in making this determination, but in the Board s view, a sexual assault by a lawyer on a client known to be in a highly vulnerable position clearly qualifies. As the Board has previously observed, there is a relative paucity of cases in our disciplinary system involving sexual misconduct, and so the proper classification of such cases is sometimes uncertain. Compare In re Harkins, BDN (BPR Jan. 29, 2004) (exceptions pending) (Board divides on question whether misdemeanor sexual assault on stranger violated Rule 8.4(b)) with In re Key, BDN (BPR Nov. 12, 2004), aff d, 863 A.2d 837 (D.C. 2004) (Board concludes that sexual assault on client did violate Rule 8.4(b)). Consistently, however, the Board has taken the position that sexual assaults by lawyers on persons who are in an unequal position with the lawyer in particular, persons under age and clients are to be viewed as highly culpable incidents. Cf. In re Bewig, 791 A.2d 908 (D.C. 2002) (misdemeanor sexual abuse of minor held to be crime of moral turpitude). 3 In Key, for example, the Board stressed that sexual assault on a client raises serious concerns about abuse of a lawyer s dominant position in the lawyer-client relationship. Key, Board Report at 6. 3 The Board does not suggest that only sexual assaults involving such particularly vulnerable classes of persons are to be viewed as crimes involving moral turpitude. A sexual assault on a stranger that was considerably graver than the incident in Harkins for example, the rape of a stranger would also qualify as a crime of moral turpitude. 13

14 Those concerns are only aggravated where, as here, the facts demonstrate that the client is in serious emotional and financial distress and is vulnerable to advances by the lawyer. Respondent s behavior towards Ms. Cherry was nothing less than predatory and was motivated entirely by a desire for personal gratification. Such predation is the sort of act that violates the generally accepted moral code of mankind. The Board therefore agrees with the Hearing Committee that Respondent s crimes involved moral turpitude. As such, disbarment is required under D.C. Code (a). B. Rule 8.4(b) Even if there were doubt about whether Respondent s conduct descends to the level of moral turpitude, it can scarcely be denied that the crime raises serious questions about Respondent s honesty, trustworthiness, or fitness as a lawyer in other respects. The Board observed in In re Key, supra, that assault on a client (whether sexual or not in nature) goes directly to the heart of the lawyer-client relationship and thus implicates the lawyer s trustworthiness and fitness as a lawyer. A client who has been assaulted by her lawyer, or fears such assault, can scarcely be expected to repose trust or confidence in the lawyer. Moreover, Respondent s attack on Ms. Cherry was of such a nature as to place her in reasonable fear for her personal safety. As such, Respondent s crime was considerably graver than the minor touching at issue in Harkins, where the Board observed that commentary accompanying Rule 8.4(b) makes clear that [o]ffenses involving violence fall within the ambit of Rule 8.4(b). Respondent s conduct therefore violated Rule 8.4(b). C. Rule 1.7(b)(4) Board precedent establishes that a lawyer s sexual assault on a client falls within the ambit of Rule 1.7(b)(4). In Key, the Board concluded that [w]hen a lawyer takes advantage of a 14

15 client s trust or dependency solely for the lawyer s own personal gratification, there is a conflict of interest. Key, Board Report at 7; see also In re Asher, 772 A.2d 1161 (D.C. 2001) (suggesting applicability of conflict of interest rule to sexual relationship with client). Respondent s assault on Ms. Cherry falls squarely within the criteria set forth in Key, which, in a reciprocal case, also found a sexual assault on a client to violate Rule 1.7(b)(4). While the conflict of interest here is perhaps not of the usual kind found in Rule 1.7(b) cases, it seems clear that a lawyer s judgment on behalf of his client is apt to be clouded if his overriding interest towards the client is one of personal gratification effectuated through sexual assault. Accordingly, the Board finds a violation of Rule 1.7(b)(4). IV. SANCTION Because we have found that Respondent s criminal offenses involved moral turpitude on the basis of the underlying facts, pursuant to D.C. Code (a), the only appropriate sanction is disbarment. See Colson, 412 A.2d at Accordingly, we recommend that Respondent be disbarred. The minimum five-year period before Respondent may apply for reinstatement should run from the date he files his affidavit in compliance with D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, 1331 (D.C. 1994). The Board also considered the appropriate sanction should the Court disagree with our moral turpitude determination. We consider the familiar factors bearing on sanction: the nature of the violation; any mitigating and aggravating circumstances; the need to protect the public, the courts and the legal profession; and the moral fitness of the attorney. In re Slattery, 767 A.2d 203 (D.C. 2001). As a practical matter, our consideration of these issues is substantially the same for both the Rule 1.7(b)(4) and Rule 8.4(b) violations: both violations involve the same facts and circumstances, and in this case both represent the substantially similar interests in 15

16 protecting the public from recurrence of the behavior underlying the violation, i.e., predatory behavior toward a vulnerable client. Like the Hearing Committee, we regard the violation here as very serious, and see the conduct of Respondent toward Ms. Cherry as particularly egregious and harmful both to the public and the legal profession. Moreover, there are no evident mitigating circumstances: Respondent has shown no remorse whatever regarding his offense. A substantial period of suspension, at a minimum, is necessary. As to the specific duration of the suspension, as we have noted, prior case law in this area does not provide much guidance, but the Board believes that a minimum of two years suspension is necessary for protection of the public. In addition, because Respondent s conduct has placed in grave doubt his fitness to practice law, the Board recommends a fitness requirement as well before Respondent may resume the practice of law. Accordingly, the Board agrees with the recommendation of the Hearing Committee: Respondent should be disbarred, pursuant to D.C. Code (a), based on his conviction for a crime of moral turpitude. Should the Court disagree with our conclusion that Respondent s conviction involves moral turpitude on the facts, we recommend a two-year suspension with a fitness requirement. In light of the nature of Respondent s violation, we would recommend that any lesser sanction be accompanied by a fitness requirement. V. CONCLUSION For the foregoing reasons, the Board finds that Respondent s conviction in Georgia state court for the criminal offenses of false imprisonment, sexual battery, and simple battery involved moral turpitude on the facts. The Board finds violations of Rules 1.7(b)(4) and 8.4(b) and recommends disbarment. Having concluded that Respondent was convicted of a crime of moral 16

17 turpitude on the facts, the related reciprocal disciplinary proceedings should be dismissed as moot. In re Bereano, 719 A.2d 98, 99 (D.C. 1998) (per curiam). BOARD ON PROFESSIONAL RESPONSIBILITY Dated: July 27, 2005 By: Paul R.Q. Wolfson Vice Chair All members of the Board concur in this Report and Recommendation except Dr. Payne and Ms. Helfrich, who did not participate. 17