DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of JOHN J. HARKINS, 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 Respondent in this case was convicted in the District of Columbia Superior Court of misdemeanor sexual abuse, an offense for which he received a suspended sentence, was placed on probation, and was fined $250. The question now is whether Respondent s criminal act reflect[ed] adversely on [his] honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Rules of Professional Conduct. We conclude that Respondent s conduct does not fall within the scope of that Rule. In reaching that conclusion, we place reliance on the fact that Respondent s conduct was a one-time occurrence, out of character for him, that did not involve force or violence, a minor, a client, or an employee. We also note that, contrary to Bar Counsel s submission to the Hearing Committee, Respondent s criminal conduct did not involve exposing himself to the victim of the crime, for, like the Hearing Committee, we find that Respondent was acquitted of that conduct by the Superior Court. Moreover, because Bar Counsel relied entirely on the transcript of the criminal trial to establish Respondent s criminal conduct, and did not call any additional witnesses, we have no basis ourselves to

2 conclude that Respondent s criminal conduct extended any further than the facts found by the Superior Court. In reaching our conclusion, we do not mean to condone Respondent s behavior, which, as found by the criminal court, would certainly be considered offensive and boorish by most persons. (Respondent hotly contests the version of events put forward by Bar Counsel and found by the criminal court.) Nonetheless, we think that to find that Respondent s conduct violated Rule 8.4(b) would push that Rule beyond its apparent limits. Accordingly, we direct that the disciplinary proceedings against Respondent be dismissed. We also conclude, in the alternative that, were Respondent s conduct found to violate Rule 8.4(b), the appropriate sanction would be a public censure. In light of the fact that this incident appears to be a one-time event out of character for Respondent, the limited nature of the injury to the complainant, and the fact that Respondent is retired from the practice of law, we do not believe that a suspensory sanction would serve any important function in protecting the public. I. FINDINGS OF FACT Respondent is a member of the Bar of the District of Columbia, having been admitted on April 16, From 1968 to 1976 and again from 1982 to 2000, Respondent was employed by the Printing and Graphics Communications Association in Washington, D.C. At the time of the events at issue, Respondent held the position of Executive Vice President, and served as the organization s Chief Executive Officer. He formally retired from his position on May 31, He has been on inactive status with the Bar since April 27, He has never before been the subject of any disciplinary complaint and, before the incident that led to this case, also had never been the subject of any criminal complaint. 2

3 On the morning of October 8, 1999, Respondent boarded the Washington area Metro on the Orange line and took a seat next to the Complainant, Ms. Katherine Wesson, who at the time was an administrative assistant for the Office of Independent Counsel. The two then engaged in conversation, discussing their various places of employment. As the trip continued, Respondent moved closer and closer to Ms. Wesson, placing his hand against her hand and then her thigh. When Ms. Wesson, seeking to avoid Respondent s encroachments, got up to change seats, she felt Respondent touch her buttock, after which she said to him, No, you can t do that. Respondent followed Ms. Wesson to another seat, after which she moved again. Finally, Respondent exited the train, dropped his business card in Ms. Wesson s lap, and told her, Give me a call sometime, baby. According to Ms. Wesson s testimony at the criminal trial, although Respondent s conduct made her feel uncomfortable, those actions did not make her fear for her personal safety. 1 After consulting with a colleague at work, Ms. Wesson contacted the Metro police to report the incident. Ms. Wesson told the police that, in addition to touching her buttock in an unwelcome manner, Respondent, when at one point seated across from her in the Metro train, had unloosened his trousers and exposed himself to her. The possibility that such an incident had occurred on the Metro concerned the police, who went to Respondent s place of employment and asked to speak with him. Respondent cooperated with the investigation and denied Ms. Wesson s version of events. 1 Respondent has consistently held to a completely different version of events on the morning in question. He maintains that he and Ms. Wesson engaged in pleasant conversation, that he was intrigued by her employment at the Office of Independent Counsel, and that he offered her business card with a view to having lunch at a later date. He also has maintained that any touching of Ms. Wesson s buttock was inadvertent, and he denied that either of them changed seats on the Metro on the day in question. Like the Hearing Committee, we find ourselves compelled to accept the version of events described above in light of Respondent s conviction. 3

4 Eventually the government instituted two criminal counts against Respondent in the Superior Court. First, the government charged Respondent with committing a lewd, indecent, or obscene act, in violation of D.C. Code , based on the allegation that he had exposed himself to Ms. Wesson on the Metro train. A second count, based on the allegation that Respondent had touched Ms. Wesson s buttock, charged that Respondent had engaged in misdemeanor sexual abuse, in violation of D.C. Code Misdemeanor sexual abuse is committed by one who engages in a sexual act or sexual contact with another person and who should have knowledge or reason to know that the act was committed without that other person s permission. Sexual contact, in turn, is defined as the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. D.C. Code (9). Thus, touching the buttock of another person (even through clothing) without her permission, if undertaken with the requisite intent, constitutes misdemeanor sexual abuse. 2 After a bench trial, the Superior Court acquitted Respondent on the charge of lewd, indecent, or obscene conduct, and convicted him on the charge of misdemeanor sexual abuse. As to the charge that Respondent had exposed himself, the court noted that Ms. Wesson had stated that she had some doubt about what exactly had happened, which led the court to find a reasonable doubt that the exposure had taken place. Bar Exhibit ( BX ) 6B, 308. But as to the charge relevant here, the court credited Ms. Wesson s testimony that Respondent had grabb[ed] 2 Although the section includes the unwanted touching of the inner thigh of another within the definition of the crime of misdemeanor sexual abuse, Ms. Wesson did not testify that Respondent touched her inner thigh, but only her thigh. Thus Respondent s conviction rests on his having touched Ms. Wesson s buttock without her permission. The Superior Court does not appear to have made a finding as to which kind of intent characterized Respondent s conduct (i.e., whether it was undertaken with the intent to harass, or to abuse, etc.), although by convicting Respondent it necessarily found that he had acted with some relevant intent. 4

5 hold of her by putting his hand on her buttock in a firm manner. Id. The court eventually imposed a suspended sentence and probation, noting that Respondent has an unblemished record and that [a]ll that appears from his history is that the incident appears to be out of character... and an aberration on his part. BX 6C, 8. The Court of Appeals affirmed the conviction. Harkins v. United States, 810 A.2d 895 (D.C. 2002). II. ANALYSIS A. Rule 8.4(b) provides that it is professional misconduct for an attorney to [c]ommit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects. Although many criminal acts clearly warrant professional sanction, not every criminal act does, for the Rule does not provide that every criminal act by an attorney is a basis for professional discipline. Rather, the Rule covers only that subset of criminal acts that reflect adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer more generally. Commentary accompanying the Rule makes clear that many, but not all, criminal acts may be the basis of professional discipline, and that the Board must carefully consider how the criminal conduct bears on the attorney s fitness to practice law Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving moral turpitude. That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of 5

6 repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. D.C. R. Prof l Conduct. R. 8.4 cmt. 1. Beyond this guidance, there is a striking dearth of authority in this jurisdiction to guide the Board about the scope of Rule 8.4(b). In part that may be due to the fact that other provisions of law often require the imposition of sanctions for criminal misconduct, so that it is often unnecessary to address the scope of Rule 8.4(b). For example, a conviction for a crime involving moral turpitude requires disbarment under D.C. Code (a). Similarly, a disciplinary sanction is required for any felony and for any other crime that, by virtue of its elements, constitutes a serious crime under D.C. Bar R. XI, 10(b). In this case, however, Bar Counsel has acknowledged that Respondent s misdemeanor does not involve moral turpitude and does not fall within the definition of a serious crime. Therefore, the question whether his criminal conduct reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects is squarely presented. The commentary to the Rule quoted above, although helpful in some respects in illuminating that the scope of the Rule is not intended to be all-encompassing, nonetheless does not resolve this case. The commentary states that crimes of personal morality, such as adultery, were not intended to be viewed as falling within the scope of the Rule. We do not view Respondent s criminal act as constituting merely a matter of personal morality, given that Respondent abridged the right of another individual to her bodily integrity. On the other hand, Respondent s act does not bear much of a resemblance to the conduct that the commentary anticipates will fall within the scope of the Rule. Respondent s conduct did not involve violence, as that concept is generally understood; he did not, for example, commit conduct that presented a 6

7 serious risk of physical injury to another. 3 Respondent s offense also does not involve dishonesty, breach of trust, or serious interference with the administration of justice, and no pattern of repeated offenses is presented. Looking more closely to cases that have involved sexual misconduct of some nature, we also do not find any authority that would clearly indicate whether Respondent s conduct falls within the scope of Rule 8.4(b). Crimes involving either sexual contact or attempted sexual contact with minors are highly likely to fall within Rule 8.4(b). See In re Childress, 811 A.2d 805 (D.C. 2002); In re Bewig, 791 A.2d 908 (D.C. 2002) (per curiam). But as the Board pointed out in Childress, in a passage quoted and affirmed by the Court of Appeals, that is so because an attempt to have sexual relations with a minor suggests a willingness to manipulate others who are not capable of making fully informed decisions of great magnitude, a quality that is unacceptable in a lawyer. 811 A.2d at 807. This case, although involving an offensive touching of another, is not of the same order. Similarly, in In re Key, Bar Docket No (BPR Nov. 12, 2004), aff d, 863 A.2d 837 (D.C. 2004) (per curiam), the Board, in a reciprocal matter, concluded that the respondent s misdemeanor conviction for sexual assault of a female fell within the scope of Rule 8.4(b). But in Key, the Board was careful to stress that the case involved sexual assault on a client, that [a]ssault on a client, whether sexual or not, raises serious questions about a lawyer s fitness to practice law, and that sexual assault of a client... raises serious concerns about an abuse of a lawyer s dominant position in the lawyer-client relationship. Bar Docket No at 6; see also In re Goldsborough 654 A.2d 1285 (D.C. 3 One commonly used definition of crime of violence in the District of Columbia is found at D.C. Code (f). That definition includes first and second degree sexual abuse, which involve causing another person to submit to a sexual act as well as force or placing the victim in reasonable fear of danger to personal safety, but does not include Respondent s offense. See also Singh v. Ashcroft, 386 F.3d 1228 (9th Cir. 2004) (declining to find that offense of harassment was a crime of violence because it could have been satisfied by a touching without any intent to inflict a physical injury). 7

8 1995) (lawyer disciplined for sexual advances on clients and secretary, including spankings where lawyer required secretary to bare her buttocks). This case does not involve an assault on a client or an employee or any person over which a lawyer holds similar power. In the absence of directly controlling authority, we must consider whether Respondent s criminal conduct suggests that he has a serious character flaw that renders him unfit to continue practicing as a lawyer. 4 In considering the same question, the Maryland Court of Appeals has observed as follows Rule 8.4(b) recognizes, by its reference to character traits, rather than enumerating specific crimes, that commission of some crimes evidence or demonstrate a character flaw that, were the person committing them applying for admission to the bar, would constitute a significant impediment, if not outright prohibition, to his or her admission or, having been admitted, could result in his or her disbarment. The rule identifies two such traits. In addition to those traits, however, it includes as a catchall object, fitness as a lawyer in other respects. Since the Rule is specific in the requirement that the criminal act reflect adversely on the character traits or fitness as a lawyer, it follows that what the Rule contemplates is that the criminal act evidence of another character trait, which, like honesty and trustworthiness, is relevant or critical to the practice of law. Attorney Grievance Comm n v. Post, 710 A.2d 935, 941 (Md. 1998). Moreover, the purpose of attorney discipline is the protection of the public and not punishment of the attorney. Id. at In In re Reynolds, 649 A.2d 818 (D.C. 1994), Judges Farrell and Terry, in a separate concurring opinion, discussed the then-new Rule 8.4(b). That case involved a lawyer who admitted to illegal drug use. Judges Farrell and Terry suggested that the lawyer s illegal drug use might fall within Rule 8.4(b) because the lawyer had admitted that his use of cocaine had interfered with his ability to perform his obligations on behalf of his clients. 649 A.2d at No suggestion is made in this case that Respondent s one-time criminal conduct impaired his performance as a lawyer. 5 In Attorney Grievance Comm n v. Thompson, 786 A.2d 763 (Md. 2001), the Maryland Court of Appeals concluded that an attorney s conviction for misdemeanor stalking fell within the scope of Rule 8.4(d). The facts of that case, however, involved inappropriate sexual approaches to a 13-year-old, and thus the case is distinguishable along the same lines as Bewig and Childress, supra. 8

9 Our judgment is that Respondent s one-time touching of Ms. Wesson s buttock, although undoubtedly deeply offensive and mortifying to Ms. Wesson, does not demonstrate that he has a character flaw that casts doubt upon his fitness as a lawyer. Several factors lead us to that conclusion. First, the Superior Court found that Respondent s act was an aberration and out of character for Respondent, and was unlikely to be repeated; on that basis, the court sentenced Respondent to probation. Moreover, Respondent cooperated with the Metro police investigation of the incident, which suggests that he has the proper attitude towards the legal system. The character evidence presented at Respondent s criminal trial was also unanimously favorable. We would have a significantly different case if an attorney were shown to have groped women on several occasions, for a pattern of criminal conduct may raise serious questions about an attorney s ability or willingness to conform his conduct to law, which is obviously a quality required of attorneys. Cf. Comm. on Prof l Ethics and Conduct v. Floy, 334 N.W.2d 739 (Iowa 1983) (attorney s engaging in pattern of obscene telephone calls held to warrant disciplinary sanction). Second, the conduct did not cause or threaten to cause serious injury to Ms. Wesson. Although Ms. Wesson was touched in an offensive way, she testified to the Superior Court that she was never in fear for her safety, and there was no evidence that she was physically harmed in a lasting way by the conduct. That fact distinguishes this case from other assault cases outside this jurisdiction where the criminal conduct was found to come within the scope of Rule 8.4(b); those cases border on, if they do not actually involve, acts of violence that are not acceptable in attorneys. See In re Kearns, 991 P.2d 824 (Colo. 1999) (vehicular assault caused life-threatening injuries); In re Sutton, 959 P.2d 904 (Kan. 1998) (attorney drove past construction worker at high 9

10 speed, hitting a sign she was holding, and then threw bottle at her); Florida Bar v. Schreiber, 631 So. 2d 1081 (Fla. 1994) (domestic violence). Third, while we do not mean to minimize the seriousness of this incident, we note that the case does not involve the touching of another person s genitals or breasts, forcibly removing another person s clothing, or removing Respondent s own clothing to expose his private parts. Such cases might present different considerations because, depending on the facts presented, they might well demonstrate a disregard for legal obligations. Indeed, such cases might also involve moral turpitude, depending on their facts. We need not address such circumstances further except to note that they are not presented here. 6 In sum, we conclude that Respondent s criminal conduct did not reflect adversely on his honesty, trustworthiness, and fitness as a lawyer in other respects, so as to warrant disciplinary sanction under Rule 8.4(b). Accordingly, the proceedings against Respondent are dismissed. B. In the interest of economy, the Board has also considered what sanction should be appropriate, were Respondent s criminal act found to violate Rule 8.4(b). The Board concludes 6 The Hearing Committee, in recommending that Respondent be found to have violated Rule 8.4(b), commented that lawyers are vanguards of the system that upholds and enforces various rules designed to protect the integrity of persons and their property, that lawyers are held by the public to a higher duty in following those rules, and that [t]o act for the purpose of harassing or degrading another and/or for the purpose of self-gratification with conscious disregard for the rights of another are contrary to that duty. HC Rpt. 11. While we agree with much of these comments about the leading role of lawyers and the concomitant duty of lawyers to conform their conduct to a higher standard, we also note that the Superior Court did not find that Respondent had acted with conscious disregard for Ms. Wesson s rights, and the crime for which Respondent was sentenced does not contain such an element. The crime of misdemeanor sexual abuse contains an element of intent more akin to a reasonable person objective standard rather than a subjective, specific intent element the defendant may be convicted if it is shown that he should have [had] knowledge or reason to know that the act was committed without that other person s permission. D.C. Code (emphasis added). In other words, it is not essential to a conviction for misdemeanor sexual abuse that the defendant actually knew, or indeed actually had reason to know, that the act was carried out without the victim s permission. Moreover, the Superior Court did not find that Respondent acted for the purpose of harassing or degrading Ms. Wesson; indeed, it made no specific finding about his intent at all. A case where findings were present that the attorney had consciously disregarded the other person s rights and had acted with the purpose of harassing or degrading that person would, quite simply, be a different matter. 10

11 that a public censure would be the appropriate sanction. The Board disagrees with Bar Counsel and the Hearing Committee that Respondent s conduct would warrant a 30-day suspension. As the Board has noted on prior occasions, most of the disciplinary case law in this jurisdiction involving sexual misconduct by attorneys involves reciprocal cases, which do not necessarily provide a reliable guide to the appropriate sanction to be imposed in an original case. See Key, Bar Docket No at 11-12; In re Childress, Bar Docket No at 8 (BPR Apr. 26, 2002). 7 Thus, in choosing a sanction to recommend to the Court, should Respondent be found to have violated Rule 8.4(b), the Board considers the traditional factors bearing on sanction the nature of the violation, aggravating and mitigating circumstances, the absence or presence of prior disciplinary sanctions, the moral fitness of the attorney, and the need to protect the legal profession, the courts, and the public. In re McLain, 671 A.2d 951, 954 (D.C.1996) (citation omitted). In light of these factors, the Board concludes that a public censure would be the most appropriate sanction for Respondent s conduct if it is found to contravene the Rule. The violation, although found to be criminal, is less serious than the sexual offenses that have been found to violate Rule 8.4(b) in the past, virtually all of which have involved minors, clients, or employees, and many of which have involved more serious physical contact. See Childress, Bar Docket No at 8-9. There are no aggravating circumstances so far as we can tell, and there are several mitigating circumstances, including Respondent s cooperation with the police and the disciplinary system as well as the fact that the criminal court found Respondent s 7 As the Board noted in Key, it appears that there is only a single original case in this jurisdiction involving criminal sexual misconduct that did not arise out of a conviction for a crime involving moral turpitude namely, In re Lovendusky, No (D.C. Apr. 4, 1986), where the attorney was suspended for six months for engaging in attempted carnal knowledge of a minor (for which he was convicted in criminal court), but where the attorney also was not apparently aware that the other person was under age. Lovendusky is of limited use in ascertaining the proper sanction here given that this case does not involve a minor. 11

12 conduct to be aberrant. Respondent has no prior disciplinary record, and the incident does not appear to impugn his moral fitness more generally. Finally, our overarching concern is protection of the public, the courts, and the legal profession, and the Hearing Committee found that the actions for which Respondent was convicted were a complete departure from Respondent s usual course of conduct and... there [is] no likelihood of any similar incident in the future. HC Rpt. 12. In light of these findings as well as the uniformly favorable character evidence presented at the criminal trial, the Board does not believe that any period of suspension is needed to protect the public. A public censure, however, would serve to express the Bar s condemnation of Respondent s actions should they be held to violate the disciplinary rule. BOARD ON PROFESSIONAL RESPONSIBILITY By Paul R.Q. Wolfson Vice Chair Dated May 25, 2005 All members of the Board concur in this Report and Recommendation except Mr. Klein, who has filed a separate concurring and dissenting statement joined by Ms. Helfrich and Mr. Mercurio, and Ms. Coghill-Howard, who did not participate. 12

13 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of Respondent. JOHN J. HARKINS, A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No ) Bar Docket No CONCURRING AND DISSENTING STATEMENT OF ROGER A. KLEIN I respectfully dissent from the Board s Order of dismissal. Respondent s conduct, while certainly not as egregious as some other misconduct which has been examined by the Board, nonetheless falls within the scope of Rule 8.4(b) of the Rules of Professional Conduct. It is my view that the actions underlying Respondent s conviction of misdemeanor sexual abuse, in violation of D.C. Code , reflect characteristics that are indeed highly relevant to his fitness to practice law even though such conduct was determined by the trial court to appear to be out of character... and an aberration.... Transcript, United States v. Harkins, No. M at 8 (D.C. Super. Ct.) (BX 6C). To convict Respondent, the Superior Court had to find that every element of the crime of misdemeanor sexual abuse had been satisfied. The Superior Court s findings, moreover, were upheld by the District of Columbia Court of Appeals. As succinctly described in the Court of Appeals affirming opinion, a conviction requires proof of two elements (1) a sexual act or sexual contact; and (2) that the defendant knew or should have known that he/she did not have complainant s permission to engage in the sexual act or contact. Harkins v. United States, 810

14 A.2d 895, 901 (D.C. 2002). With respect to the first element, sexual contact is defined as the touching with any clothed or unclothed body part or any object, directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. D.C. Code (9). In convicting Respondent, the Superior Court therefore found a sexual contact (i.e. the touching of complainant s buttocks), a specific intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, and Respondent s actual or imputed knowledge that his actions were without complainant s consent. Respondent s conduct establishes that he acted with the intent to abuse, humiliate, harass or degrade the victim. It is in my judgment impossible to reconcile the intentional sexual harassment of the victim which occurred in this case with the continuing duty to the public which Respondent has as an attorney licensed to practice in the District of Columbia. 8 The intentional abuse, humiliation, harassment or degradation of another individual does not constitute behavior consistent with the standards of professional conduct Rule 8.4(b) is intended to uphold. The conduct of Respondent showed a complete disregard for the rights of personal privacy of an innocent victim. The sexual nature of the personal privacy violation makes it more egregious. This is not merely an offense concerning some matters of personal morality which 8 Section 2(a) of Rule XI of the Rules Governing the District of Columbia Bar sets forth this duty as follows (a) Duty of Attorneys. The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law. 2

15 the commentary accompanying Rule 8.4(b) suggests would be outside the scope of the Rule. This is conduct which violated the Respondent s duty to the public. In my judgment, it demeans the legal profession to suggest that such conduct does not reflect adversely on his fitness as a lawyer. The fact that such conduct was aberrant is relevant in determining the appropriate sanction, but it does not vitiate the misconduct. I would find that Respondent s criminal act violated Rule 8.4(b) and recommend a sanction of a public censure based on the analysis set forth in Section II-B of the Board Order. Respectfully submitted, Roger A. Klein, Member Dated May 25, 2005 This concurring and dissenting statement is joined by Ms. Helfrich and Mr. Mercurio. 3