Duncan v. Board of Disciplinary Appeals

CORNYN, Justice,

joined by HECHT, Justice, concurring in part and dissenting in part.

I agree with the Court that if misprision of felony is not a felony involving moral turpitude, then compulsory discipline is not available and the OCDC must proceed, if at all, under the non-eompulsory discipline procedures set out in Part II of the Texas Rules of Disciplinary Procedure. I dissent, however, from the Court’s holding that misprision of felony is not a felony involving moral turpitude.

The elements of misprision of felony are: 1) the principal committed and completed the felony alleged; 2) the defendant had full knowledge of that fact; 3) the defendant failed to notify the authorities; and 4) the defendant took an affirmative step to conceal the crime. United States v. Ciambrone, 750 F.2d 1416, 1417 (9th Cir.1984) (emphasis added). The fourth element, taking an affirmative step to conceal the crime, compels the *764 conclusion that this is a crime of moral turpitude. The word “conceal” has been interpreted to mean “something more than mere failure to disclose — some affirmative act of concealment, such as suppression of the evidence, harboring of the criminal, intimidation of witnesses, or other positive act designed to conceal from the authorities the fact that a crime had been committed.” Bratton v. United States, 73 F.2d 795, 797 (10th Cir. 1934).

Taking an affirmative step to conceal a felony is an act of deceit or misrepresentation that undermines the honesty, trustworthiness, and general fitness demanded of a lawyer. Because of the position of public trust lawyers enjoy, they must meet the highest of all professional standards. As the United States Supreme Court has stated:

Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, ... argues recreancy to his position and office.... It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve.

Ex parte Wall, 107 U.S. 265, 274 , 27 L.Ed. 552 (1882). At least two other state supreme courts have determined that misprision of felony involves moral turpitude or is a serious crime, and that conviction of that crime subjects an attorney to compulsory discipline. Office of Disciplinary Counsel v. Shorall, 527 Pa. 413 , 592 A.2d 1285, 1292 (1991); In re Russell, 493 N.W.2d 715, 716 (S.D.1992). I too would hold that misprision of felony is a crime of moral turpitude, and that an attorney who is convicted of it is subject to compulsory discipline.

The Court’s concern for potential erosion of the attorney-client privilege is unfounded. Duncan does not contend that he has been convicted of misprision of felony for invoking the attorney-client privilege, or for mere silence. Moreover, the Court cites no ease in which an attorney was convicted of misprision of felony for simply asserting the privilege, and the federal courts have held that silence alone cannot amount to misprision of felony. See, e.g., United States v. Warters, 885 F.2d 1266, 1275 (5th Cir.1989). In the only case cited by the Court as an example of attorney discipline based on a conviction for misprision of felony without an affirmative act of concealment, the Arizona Supreme Court expressly stated: “We do not address any issue relative to the attorney-client privilege or to an attorney’s duty to disclose a client’s criminal activities.” In re Morris, 164 Ariz. 391 , 793 P.2d 544, 546 (1990). There is simply no support for the conclusion that maintaining client confidences, in the absence of an affirmative act of concealment, would support a conviction for misprision of felony.

I accordingly dissent from the Court’s holding that misprision of felony is not a felony involving moral turpitude.