Opposition Brief — Borders v. District of Columbia Office of Bar Counsel

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Supreme Court, U.S. |

FILED |

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~ | SEP 15 2003

No. 03-246 OFFICE OF THE CLERK

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IN THE

Supreme Court of the United States

WILLIAM A. BORDERS, JR..,

Petitioner

v.

DISTRICT OF COLUMBIA OFFICE OF BAR COUNSEL,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE DisTRICT OF COLUMBIA COURT OF APPEALS

BRIEF IN OPPOSITION

Joyce E. PeETers*

Bar Counsel

JUDITH HETHERTON

Assistant Bar Counsel

DisTRICT OF COLUMBIA

OFFICE OF BAR COUNSEL

515-5th Street, N.W., Room 127

Washington, D.C. 20001 -

(202) 638-1501

~ * Counsel of Record Counsel for Respondent

183027 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Whether, upon the grant of a presidential pardon to

an attorney previously disbarred by the District of Columbia

Court of Appeals on the basis of a determination that his

criminal convictions involved moral turpitude, that licensing

court is precluded from implementing its procedures for

determining whether the attorney is fit to resume the practice

of law and instead must reinstate the attorney automatically.

2. Whether the congressionally enacted statute

committing to the discretion of the District of Columbia Court

of Appeals the determination whether to reinstate to the

practice of law an attorney pardoned for offenses that resulted

in his disbarment is an unconstitutional infringement of the

President’s pardon power.

il

TABLE OF CONTENTS

Questions Prosesteg. .045c0000050 ee

Table of Comtenit ... ss4055462555 eee

Table of Cited Authorities .....................

Introduction and Summary ....................

Pertinent Constitutional and Statutory Provisions ...

Statement of Proceedings Below ...............

Reasons for Denying the Petition ...............

I.

Il.

Ii.

The Decision of the Court Below Is Well

Within the Authority Conferred on It by

Congress to Regulate the Legal Profession

in the District of Columbia ..............

The Decision of the Court Below Does Not

Conflict with Decisions of this Court

Interpreting the Pardon Clause, or with

Decisions of the United States Courts of

Appeals or State Courts of Last Resort ....

The Decision of the Court Below Does Not

Have Far-Reaching Implications .........

Conchasten ......sss~nse ee

Appen@ix ......0s+50s5 5h

Page

10

10

13

22

24

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iil

TABLE OF CITED AUTHORITIES

Page

CASES:

Bjerkan v. United States,

8 | ye ae 17, 22

Burdick v. United States,

Es uy escceenasvsseeuvenns 18

Carlesi v. New York,

a er ee 18

District of Columbia Court of Appeals v. Feldman,

SN ON OED og cede row sa ccesenssschs 10

Ex parte Crisler,

159 Miss. 247, 132 So. 103 (1931) ........... 15

Ex parte Garland,

71 U.S. (4 Wall.) 333 (1866) ....... 16, 17, 18, 23

Ex parte Wall, |

ee 14

Florida Bar v. Went For It, Inc.,

eee ee eee 10

Goldfarb v. Virginia Bar,

PPE CEOERE ova cveeasdvsevrseccunes 10

Grossgold v. Supreme Court of Illinois,

oe Bee i eo 3b) | passim

iv

Cited Authorities

Page

In re Abrams,

689 A.2d 6 (D.C.) (en banc), cert. denied,

0 Se Es Eh) ne 14, 17-18, 19-20

In re William A. Borders, Jr.,

No. 1982-81 (D.C. Board on Professional

Responsibility, Nov. 2, 1982) Perr err ore 4,5, 15

In re William“A. Borders, Jr.,

No. M-122-82 (D.C. App. Aug. 31, 1983)

de 8 eg Fe rere eee eer 3, ts bo

In re Borders,

665 A.2d 1381 (D.C. 1995) (“Borders IT”) .. passim

In re Borders, :

797 A.2d 716 (D.C. 2002) (“Borders III”) .. passim

In re Colson,

412 A.2d 1160 (D.C. 1979) (en banc) ........ passim

In re Emmons,

534 F. GIP GM. CE Aa. TSEFe niko dks s ewer 20

In re Kaufman, |

245 N.Y. 423, 157 N.E. 730 (1927) .......... 2, 21

In re Lavine,

2 Cal.2d 324, 41 P.2d 161, modified, 42 P.2d

PRUE CEE 05 6a hks Ku enh Ses eee eeee 2, 18, 20

Vv

Cited Authorities

| Page

In re McBride,

602 A.2d 626 (D.C. 1992) (en banc) .......--- 6, 12

In re North (George Fee Application),

314 U.S. App. D.C. 102, 62 F.3d 1434 (1994)

(Div’n for the Purpose of Appointing Independent

| Pererrrrerer rrr er 17

In re Reback,

513 A.2d 226 (D.C. 1986) (en banc) .......--. 14

In re Roundtree,

$03 A.2d 1215 (D.C. 1985) ....... ee ee eees 7,9

Knote v. United States,

95. U.S. 149 (1877) 0... ccc cccccvenscccess 18

Middlesex Ethics Comm. v. Garden State Bar Ass'n,

457 U.S. 423 (1982) 0... ceccccesnscvceces 10

: Nixon v. United States,

$06 U.S. 224 (1993) ..ucccccvccvvesvccccens 14

QOhralik v. Ohio Bar Ass'n,

436 U.S. 447 (1978) ......- cece cece eee ceces 10

Scott v. State,

6 Tex. Civ. App. 343, 25 S.W. 337 (Tex. Civ. App.

| DPePTTTTeere reer 20

vi

Cited Authorities

Page

United States v. Borders,

693 F.2d 1318 (11 Cir. 1982), cert. denied,

SG UE. Fae CEE 060004443 $4040d eee 3, 4, 5, 6

United States v. Hastings,

Crim. No. 81-596-CR-ETG (S.D. Fla.) ........ 6

United States v. Noonan,

FUG F.26 952 (56 Ce. FOGG) oo ccccsicvccevdees 17

CONSTITUTION, STATUTES, AND RULES:

sk Re fF Oe Fee Gere ery eee 2

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D.C. Cae © Sie 64 cidui nce cee eee ee 11

DA. Cees LR<eeeee 40 nse beeen kee eees passim

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1S UGA. SB S8 cece cediceeucesbaeeee 3

$6 UBS. O OGD s cevscdatectnese eee 3

1G UB. & Fe xs osc ceeusaweueceee 3

a6 UGG. SAREE 6 ceeuckecuetnaeeeeee 22

vil

Cited Authorities

‘ Page

D.C. App. R. 46(d) ... 0... eee eee eee eee eens 11

D.C. App. R. 46(€) .. 0... cece cece cere eee e ies ll

Tg. coc was cheat eendseen weave Neen 11

i on linc baw ek bene ane enews menses 11

lem ¢ SiS Serererrertriertr rrr. 11

D.C. Bar'R. XI, § 16(d) .. 1.0... cece eee eeeens 9,12

Disciplinary Rule 1-103(A) ........---++05++0: 8

District of Columbia Rule of Professional Conduct

RN hic onc vowks cenbhe cans seeduseseunesss 8

OTHER AUTHORITIES:

To Amend the Code of the District of Columbia,

Hearings on H.R.14974 Before the House Comm.

on the Judiciary, 64" Cong., 1* Sess. (1916) .. 11, 12, 15

Office of Legal Counsel, United States Department

of Justice, Memorandum for the Pardon Attorney,

Femeh TD, TORS onc ovis cc ccccevccecesuscccesss 20

Op. Att'y Gen. No. 78-84, 2 Op. Off. Legal Counsel

i Lik) eRe EEE Ee ae 20

Samuel Williston, Does a Pardon Blot Out Guilt?,

28 Harv. L. Rev. 647 (1915) .......... es

]

INTRODUCTION AND SUMMARY

The decision of the District of Columbia’s highest court

that is challenged here presents no issue warranting the grant

of certiorari. The court below declined to grant automatic

reinstatement to the practice of law to an attorney who

received a presidential pardon years after he had been

disbarred for convictions that had been determined in the

original disciplinary proceeding to inherently involve moral

turpitude, and after the attorney had failed in reinstatement

proceedings to establish to the satisfaction of the court that

he was fit to resume the practice of law. Instead, the court

below ruled that the effect, if any, of the pardon may be

considered in another reinstatement proceeding to determine

whether Petitioner is now fit to resume the practice of law.

This decision was well within the authority of the court below,

as indicated by numerous decisions of this Court recognizing

the authority of courts of the states and the District of

Columbia to regulate the legal profession to ensure the

competency and moral fitness of its members. Further, in its

ruling the court below properly relied on a congressionally

enacted statute, D.C. Code § 11-2503(a), which specifically

grants the court discretion to determine whether to vacate an

order of disbarment premised on convictions for crimes of

moral turpitude when those crimes are subsequently

pardoned.

The decision of the court below and the statute on which

it relied are not at odds with this Court’s decisions

interpreting the Pardon Clause. Disbarment pursuant to D.C.

Code § 11-2503(a) is neither punishment for the offense nor

a disability imposed on account of a conviction. Rather, it is

the consequence of a determination that the offense involved

moral turpitude, and thus the attorney can no longer be

2

deemed to possess the moral prerequisites for the practice of

law. A presidential pardon for such a crime, which is an act

of grace, may be granted for any reason or no reason at all. A

pardon is not, however, a determination that the attorney is

morally fit or competent to resume the practice of law.

Recognizing this principle, the federal and state courts that

have considered the issue have stated that the proper course

to follow when an attorney is pardoned for a conviction on

which his disbarment was premised is precisely what the

court below decided — to consider the effect, if any, of the

pardon in a reinstatement proceeding. E.g., Grossgold v.

Supreme Court of Illinois, 557 F.2d 122 (7" Cir. 1977);

In re Kaufman, 245 N.Y. 423, 157 N.E. 730 (1927) (Cardozo,

C.J.); In re Lavine, 2 Cal.2d 324, 41 P.2d 161, modified,

42 P.2d 311 (1935). There is no conflict between the decision

of the court below and the other federal and state cases

dealing with the issue. For all these reasons, certiorari should

be denied.

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article II, section 2, clause 1 of the United States

Constitution states in relevant part:

The President ... shall have Power to grant

Reprieves and Pardons for Offenses against the

United States, except in Cases of Impeachment.

D.C. Code § 11-2503(a) states:

When a member of the bar of the District of

Columbia Court of Appeals is convicted of an

offense involving moral turpitude, and a certified

3

copy of the conviction is presented to the court,

the court shall, pending final determination of an

appeal from the conviction, suspend the member

of the bar from practice. Upon reversal of the

conviction the court may vacate or modify the

suspension. If a final judgment of conviction is

certified to the court, the name of the member of

the bar so convicted shall be struck from the roll

of the members of the bar and such person shall

thereafter cease to be a member. Upon the granting

of a pardon to a member so convicted, the court

may vacate or modify the order of disbarment.

STATEMENT OF PROCEEDINGS BELOW

Petitioner, William A. Borders, Jr., was convicted in

federal court in March 1982 of conspiracy to bribe a United

States district judge (18 U.S.C. § 371), obstruction of justice

(18 U.S.C. §§ 2, 1503), and two counts of traveling in

interstate commerce with intent to commit bribery (18 U.S.C.

§ 1952). See United States v. Borders, 693 F.2d 1318

(11" Cir. 1982), cert. denied, 461 U.S. 905 (1983). The judge

involved was then federal district judge Alcee L. Hastings, a

longtime friend of Petitioner. The evidence showed that

Petitioner conducted an elaborate and sophisticated scheme

to induce $150,000 in bribes from two criminal defendants

who had been convicted of racketeering in a jury trial before

Judge Hastings. Jd. at 1319-24. The bribe money was to be

shared with the judge, who was considering not only their

criminal sentencings but also a related forfeiture of $1.2

million worth of property. Petitioner received a $25,000 down

payment on the bribe from an undercover agent.

The remainder was to be paid after the forfeiture was set

aside. Jd. at 1321. The judge then issued an order setting

4

aside the forfeiture in part, returning $845,000 to the

defendants. Jd. at 1322. Petitioner was arrested three days

later, after receiving the remaining $125,000. Jd. at 1323.

In May 1982, Petitioner was sentenced to four concurrent

five-year terms of imprisonment and fined $35,000.

Id. at 1319.

Following his conviction and sentencing, on June 7,

1982, the court below suspended Petitioner from the practice

of law in the District of Columbia and referred the matter to

the court’s Board on Professional Responsibility (“Board”)

for a recommendation whether the crimes of which Petitioner

had been convicted involved moral turpitude within the

meaning of D.C. Code § 11-2503(a).' In re William A.

Borders, Jr., No. 1982-81, at 1 (D.C. Board on Professional

Responsibility, Nov. 2, 1982) (reprinted in the Appendix

(“App.”), infra).

1. The court below has held that a crime involves moral

turpitude if “the act denounced by the statute offends the generally

accepted moral code of mankind”; if it involves “baseness, vileness

or depravity in the private and social duties which a man owes to his

fellow men or to society in general, contrary to the accepted and

customary rule of right and duty between man and man”; or if the act

is “contrary to justice, honesty, modesty, or good morals.” Jn re

Colson, 412 A.2d 1160, 1168 (D.C. 1979) (en banc) (holding that

obstruction of justice involves moral turpitude per se). Where the

offense does not involve moral turpitude inherently or per se, that is,

based on an examination of the elements of the offense, a hearing is

held to determine whether the offense involves moral turpitude on

its facts. Jd. at 1164-65. If it is unclear whether the crime involves

moral turpitude per se, the court below has instructed that a hearing

should be held and evidence admitted “that goes to the moral

implications of the particular [attorney’s] acts, as a way of determining

whether his particular offense involved moral turpitude, even if the

crime cannot be said per se to do so.” Jd. at 1165 n.10.

5

Petitioner was notified of the institution of formal

disciplinary proceedings against him under the court’s order

but did not enter an appearance before the Board and filed

no brief or other submission. Jd. at 1-2 (App. at 2a).

On November 2, 1982, the Board, relying on the prior

decision of the court below in Jn re Colson, supra note 1,

stated its view that at least two of the crimes of which

Petitioner had been convicted — conspiracy to bribe a federal

judge and obstruction of justice — “necessarily involve moral

turpitude per se and it is therefore unnecessary for the Board

to refer this case to a Hearing Committee at this time to take

testimony as to factual details of these crimes of [Petitioner].”

Id. at 2 (App. at 2a). The Board recommended that Petitioner

be disbarred once his conviction of either crime became final.

Id. at 4 (App. at 4a).

On December 10, 1982, Petitioner’s convictions were

affirmed on appeal, United States v. Borders, supra, and on

April 25, 1983, this Court denied certiorari, 461 U.S. 905.

Thereafter, on August 31, 1983, the court below ordered

Petitioner disbarred pursuant to D.C. Code § 11-2503(a)

concluding, based on the record of conviction and the report

and recommendation of the Board (which it appended to and

incorporated in its decision), that at least two of the crimes

of which Petitioner had been convicted inherently involved

moral turpitude. Jn re William A. Borders, Jr., No. M-122-82

(D.C. App. Aug. 31, 1983) (“Borders I’) (Petitioner’s

Appendix (“Pet. App.”’) at 10a-11a).

During the seven years immediately following his

convictions and sentencing, Petitioner, who had not testified

at his criminal trial, refused to testify on four occasions before

official bodies concerning the circumstances of the offenses:

6

(1) before a grand jury investigating Judge Hastings’;

(2) in connection with an investigation of Judge Hastings’

conduct by a judicial body; (3) before the House

Subcommittee on Criminal Justice; and (4) at Judge Hastings’

impeachment trial in the United States Senate.’ See In re

Borders, 665 A.2d 1381, 1383 (D.C. 1995) (“Borders IT’).

Petitioner’s refusals to testify before the grand jury and at

Judge Hastings’ impeachment trial in the Senate, despite

grants of use immunity, resulted in two separate findings

against him of civil contempt and led to additional periods

of incarceration. Jd.

In August 1993, following a decision by the court below

that henceforth any attorney who was disbarred could seek

reinstatement after five years, Jn re McBride, 602 A.2d 626

(D.C. 1992) (en banc), Petitioner applied for reinstatement.

A Hearing Committee considered extensive testimony from

Petitioner and his character witnesses, as well as from

government investigators. The transcript of Petitioner’s

criminal trial and documentation concerning his subsequent

refusals to testify were received in evidence. Petitioner did

not take issue with the correctness of the jury verdict or the

gravity of his conduct, acknowledging that it had been

2. Judge Hastings was tried separately and acquitted by a jury

in February 1983. United States v. Hastings, Crim. No. 81-596-CR-

ETG (S.D. Fla.). As the Eleventh Circuit noted, however, the jury

that convicted Petitioner of conspiracy necessarily found that the

government had proven the involvement of Judge Hastings, the only

other conspirator named in the indictment. United States v. Borders,

supra, 693 F.2d at 1324.

3. The impeachment proceedings resulted in Judge Hastings’

removal from the federal bench. He was subsequently elected to the

U.S. House of Representatives, where he now serves.

7

“corrupt.” Borders IJ, 665 A.2d at 1383. He continued his

refusal to answer questions about the events that led to his

convictions, however, maintaining that his criminal conduct

was “unexplainable.” Jd. With respect to his refusals to

cooperate throughout the proceedings against Judge Hastings,

Petitioner stated:

There is a time when no justice is served by

trying to bring evil on another person. The man

who holds his tongue in these situations must be

willing to pay the price for his silence. If he

believes that his silence serves a higher good, he

must be willing to pay for that higher good.

Id. at 1384. Both the Hearing Committee and the Board

recommended that the court below deny the petition for

reinstatement. Jd.

On October 26, 1995, the court below rejected

Petitioner’s first petition for reinstatement. Jd. Applying its

standards for reinstatement as enunciated in Jn re Roundtree,

503 A.2d 1215 (D.C. 1985), the court concluded that

Petitioner had failed to establish by clear and convincing

evidence his fitness to practice law, particularly with respect

to his “conduct since discipline was imposed, including the

steps taken to remedy past wrongs and prevent future

ones,” and his “present character.” Borders II, 665 A.2d at

1382-85. This determination stemmed from “the record of

petitioner’s complete refusal to testify about the events

underlying his convictions in the years since the imposition

of discipline.” Jd. at 1383. The court also noted that Petitioner

seemed to view himself as a “victim” in the matter rather

than the “causative actor.” Jd. at 1384. Agreeing with the

Hearing Committee and the Board, the court found

Petitioner’s “‘commitment to silence about the events [to

8

be] longstanding and deeply felt,’ but one contrary to his

ethical obligations as an attorney.” /d. (brackets in original).

The court noted that under the relevant disciplinary rules,

Petitioner was obligated to report misconduct of other

attorneys and judges.* Further, his “refusal to answer

questions when subpoenaed to testify under grants of

immunity was incompatible with these obligations and

reflects unfavorably upon his rehabilitation.” Jd. The court

concluded that, should Petitioner “again face a similar

decision, ‘there is no indication in [p]etitioner’s evidence

that he would follow a different course today.’” Jd. (brackets

in original). The court summarized the obstacle to Petitioner’s

reinstatement as follows:

Petitioner’s motivation remains unexplained. As

the Hearing Committee stated, “Without an

understanding of how or why Petitioner engaged

in conduct so out of keeping with the William

Borders everyone knew and respected in 1981,

it is very difficult for the Bar to have confidence

that he will not do the same thing again.”

Id. at 1385.

~

4. Former Disciplinary Rule 1-103(A), Disclosure of

Information to Authorities, in effect at the time of Petitioner’s refusals

to testify following his convictions, provided that “[a] lawyer

possessing unprivileged knowledge or evidence concerning another

lawyer or a judge shall reveal such knowledge or evidence upon

proper request of a tribunal or other authority empowered to

investigate or act upon the conduct of lawyers or judges.” District of

Columbia Rule of Professional Conduct 8.3(b), in effect since 1991,

provides that “[a] lawyer having knowledge that a judge has

committed a violation of applicable rules of judicial conduct that

raises a substantial question as to the judge’s fitness for office shall

inform the appropriate authority.”

9 ‘

Petitioner’s second petition for reinstatement was

dismissed by the Board on July 14, 1999, on the grounds

that the application failed on its face to demonstrate

Petitioner’s entitlement to a hearing. Petitioner filed a brief

with the court below excepting to the dismissal, but withdrew

his exception in February 2000. Instead, he pursued a pardon,

which was granted by President William J. Clinton on January

20, 2001.

On December 21, 2001, Petitioner moved the court below

to vacate the order of his disbarment and reinstate him to the

practice of law, arguing that the pardon had “nullified” and

“invalidated” his conviction, thus rendering the sanction of

disbarment “null and void.” A three-judge panel of the court

“reject[ed] petitioner’s argument that the pardon requires his

automatic reinstatement without regard to whether he has

established fitness to resume practice in accordance with

D.C. Bar Rule XI, § 16(d) and the factors set forth in Jn re

Roundtree, 503 A.2d 1215 (D.C. 1985).” In re Borders,

797 A.2d 716, 718 (D.C. 2002) (“Borders III’). The court

relied on the language and legislative history of D.C. Code

§ 11-2503(a), concluding that “[t]he legislature’s use of the

permissive ‘may’ on its face, would seem to defeat

petitioner’s argument that the court has no discretion but to

reinstate an attorney disbarred under the statute but

subsequently pardoned.” /d. at 717 (Pet. App. at 7a).

The court denied the petition “without prejudice to the filing

of a proper petition for reinstatement before the Board, in

which petitioner may urge the pardon as a consideration

favoring reinstatement.” Jd. (Pet. App. at 6a). Petitioner

sought rehearing en banc, which was denied on April 16,

2003 (Pet. App. at 1a-4a).° This petition followed.

5. Three judges dissented from the denial of rehearing en banc,

stating that the Court should consider Petitioner’s legal challenge

without requiring him to petition for reinstatement.

10

REASONS FOR DENYING THE PETITION

I. THE DECISION OF THE COURT BELOW IS

WELL WITHIN THE AUTHORITY CONFERRED

ON IT BY CONGRESS TO REGULATE THE

LEGAL PROFESSION IN THE DISTRICT OF

COLUMBIA

This Court previously has had occasion to note that each

State

has an extremely important interest in maintaining

and assuring the professional conduct of the

attorneys it licenses. .. . The judiciary as well as

the public is dependent upon professionally ethical

conduct of attorneys and thus has a significant

interest in assuring and maintaining high standards

~ of conduct of attorneys engaged in practice.

Middlesex Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 434 (1982); accord, Florida Bar v. Went For It, Inc.,

515 U.S. 618, 625 (1995); District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 483 (1983); Ohralik v.

Ohio Bar Ass'n, 436 U.S. 447, 460 (1978); Goldfarb v.

Virginia Bar, 421 U.S. 773, 792 (1975). The Court has

emphasized that “[t]he interest of the States in regulating

lawyers is especially great since lawyers are essential to the

primary governmental function of administering justice, and

have historically been ‘officers of the courts.’” Goldfarb, 421

U.S. at 792; accord, Ohralik, 436 U.S. at 460.

The court below has been vested by Congress with the

responsibility for regulating the legal profession in the

District of Columbia, and empowered to “make such rules

1]

as it deems proper respecting the examination, qualification,

and admission of persons to membership in its bar, and their

censure, suspension, and expulsion.” D.C. Code § 11-

2501(a); see also D.C. Code § 11-2502. Pursuant to that

authority, the court has promulgated a rule conditioning

admission to the bar of the court on the applicant’s

demonstration, by clear and convincing evidence, of “good

moral character and general fitness to practice law.” D.C.

App. R. 46(d), (e). The court below has also promulgated

rules of professional conduct (see Rule X of the Rules of the

District of Columbia Court of Appeals Governing the

Bar (“D.C. Bar R.”)), and rules governing the conduct

of disciplinary proceedings (D.C. Bar R. XI), including

reinstatement of disbarred and suspended attorneys

(id., § 16).

The court below has been directed by Congress to disbar

summarily attorneys who have been convicted of criminal

offenses involving moral turpitude. D.C. Code § 11-2503(a).

In enacting the original legislation granting this authority,

the legislators stated that the purpose of the provision for

summary disbarment upon proof of conviction of an offense

involving moral turpitude was “to make the record of the

conviction work automatically,” Zo Amend the Code of the

District of Columbia, Hearings on H.R. 14974 Before the

House Comm. on the Judiciary, 64" Cong., 1% Sess. 63

(1916), and thus “avoid the necessity of retrial of a matter

[in a disbarment proceeding] in case of conviction by a petit

jury ...,” id. at 64. The court below has interpreted this

authority as mandating disbarment upon proof of conviction

and a determination that the elements of the offense at issue

“inherently” or “manifestly involve moral turpitude by virtue

of their underlying elements... .” Jn re Colson, supra

note 1, 412 A.2d at 1164. On the other hand, where moral

12

turpitude is not evident from an examination of the elements

of the offense alone, “a full hearing becomes necessary”

to determine whether the offense is one involving moral

turpitude, thus requiring disbarment under the statute.

Id. at 1165.

The same D.C. Code section that requires the court below

to disbar an attorney convicted of an offense found to involve

moral turpitude also provides that upon the grant of a pardon

to an attorney so convicted, “the court may vacate or modify

the order of disbarment.” D.C. Code § 11-2503(a) (emphasis

added). The legislative history of the statute makes clear that

the legislators intended to provide the court with discretion

in this matter. The current version of this portion of the statute

is essentially the same as the 1920 version. See Jn re McBride,

supra, 602 A.2d at 638-40. In proposing the language that

was ultimately adopted in 1920, the U.S. House of

Representatives Committee on the Judiciary “explained that

a pardon would not automatically reverse any disbarment;

rather, the decision to reinstate after a pardon remained with

the court.” Id. at 638 n.23 (citing To Amend the Code of

the District of Columbia, supra, at 65 (emphasis added)),

see also Borders III, 797 A.2d at 717 (Pet. App. at 7a).

Under the rules of the court below, once disbarred, an

attorney seeking reinstatement has the burden of establishing

by clear and convincing evidence both “[t]hat the attorney

has the moral qualifications, competency, and learning in law

required for readmission,” and “[t]hat the resumption of the

practice of law by the attorney will not be detrimental to the

integrity and standing of the Bar, or to the administration of

justice, or subversive to the public interest.” D.C. Bar R. XI,

§ 16(d).

13

Two of Petitioner’s offenses — conspiracy to bribe a

federal judge and obstruction of justice — were determined

by the court below in 1983 to involve moral turpitude

per se, requiring his disbarment under D.C. Code § 1l-

2503(a). Borders I, supra (Pet. App. at 10a). Further, in 1995,

following an examination of both the conduct that resulted

in his convictions and his post-conviction conduct, the court

below denied Petitioner reinstatement due to his failure to

satisfy the court’s standards for readmission by clear and

convincing evidence. Borders II, supra (Pet. App. at S5a-9a).

The decision of the court below to reject Petitioner’s motion

for automatic reinstatement to the bar based on his pardon

in 2001, without regard to his satisfaction of these standards,

was well within the authority conferred on the court by

Congress to regulate the legal profession in the District of

Columbia and the specific grant of discretion in D.C. Code

§ 11-2503(a) to deny reinstatement to an attorney who

receives a pardon for crimes of moral turpitude that led to

his disbarment.

II. THE DECISION OF THE COURT BELOW DOES

NOT CONFLICT WITH DECISIONS OF THIS

COURT INTERPRETING THE PARDON CLAUSE,

OR WITH DECISIONS OF THE UNITED STATES

COURTS OF APPEALS OR STATE COURTS OF

LAST RESORT

Apparently recognizing that the decision of the court

below was well within the authority conferred on it by

Congress, Petitioner argues that “[t]o the extent that

D.C. Code § 11-2503(a) suggests that reinsiatement is

permissive, rather than mandatory, in these circumstances,

it is inconsistent with the President’s pardon power, and

therefore must yield.” Petition at 12. Petitioner’s argument

14

hinges on his contention that, because he was disbarred based

on the record of his convictions, not, in his view, on the

underlying conduct, his disbarment was punishment for, or

a disabitity-resulting from his convictions.

This Court has stated that “the granting of a pardon is

. ‘an executive action that mitigates or sets aside

punishment for a crime.’” Nixon v. United States, 506 U.S.

224, 232 (1993) (emphasis in original). The imposition of

professional discipline does not constitute punishment,

whether as a matter of constitutional law or a component of

attorney ethics. In Ex parte Wall, 107 U.S. 265, 288 (1882),

the Court explained that an attorney disciplinary proceeding

following conviction of a crime “is not for the purpose of

punishment, but for the purpose of preserving the courts of

justice from the official ministration of persons unfit to

practise in them.” The court below has repeatedly made clear

that its disciplinary sanctions are designed not to punish

attorneys, but rather “to maintain the integrity of the

profession, to protect the public and the courts, and to

deter other attorneys from engaging in similar misconduct.”

E.g., In re Abrams, 689 A.2d 6, 12 (D.C.) (en banc),

cert. denied, 521 U.S. 1121 (1997); In re Reback, 513 A.2d

226, 231 (D.C. 1986) (en banc).

It is true that Petitioner was disbarred under D.C. Code

§ 11-2503(a) based on the record of his convictions, rather

than following a full evidentiary hearing on the details of

the criminal conduct. Petitioner was disbarred, however,

based on a finding that his convictions necessarily involved

moral turpitude. Both the Board and the court below

determined in the original disciplinary proceeding that, given

the court’s prior decision in /n re Colson, supra note 1, that

obstruction of justice is a crime involving moral turpitude

15

per se, and given the elements of the offense of conspiracy

to bribe a federal judge, there was no possibility that the

offenses did not involve moral turpitude, and thus it was

“unnecessary .. . to refer this case to a Hearing Committee

at this time to take testimony as to factual details of these

crimes of [Petitioner].” Jn re William A. Borders, Jr., No.

1982-81, supra (Board report) (App. at 2a); see Borders I

(Pet App. at 10a) (incorporating Board report). While the

disciplinary proceeding was summary, as envisioned by

Congress when it enacted D.C. Code § 11-2503(a), “to make

the record of the conviction work automatically,” and thus

“avoid the necessity of retrial of a matter [in a disbarment

proceeding] in case of conviction by a petit jury ...,”

To Amend the Code of the District of Columbia, supra,

at 63, 64, it was nevertheless a disciplinary preceeding, riot

a criminal sentencing, and there was a finding that Petitioner’s

criminal convictions necessarily involved moral turpitude.®

6. Petitioner’s situation is thus distinguishable from that of the

attorney in Ex parte Crisler, 159 Miss. 247, 132 So. 103 (1931),

on which Petitioner relies. There, the order of disbarment was entered

as a part of the criminal sentence rather than ina separate disciplinary

proceeding. The court deemed it to be part of the punishment imposed

for the crime, and held that the subsequent grant of a gubernatorial

pardon required that the disbarment order be annulled. :

There is a certain irony in Petitioner’s position. In Petitioner’s

view, an attorney such as himself, disbarred summarily based on the

record of conviction because an examination of the elements of the

offense demonstrates that it necessarily involves moral turpitude, is

entitled to automatic reinstatement to the practice of law upon receipt

of a pardon. On the other hand, an attorney who commits an offense

the moral turpitude of which is not evident from its elements, and

who is disbarred only after an exploration of the circumstances of

the offense at a hearing demonstrates moral turpitude, would not be

entitled to automatic reinstatement upon receipt of a pardon.

16

In pressing his claim that the decision of the court below

infringes the President’s pardon power, Petitioner relies

principally on Ex parte Garland, 71 U.S. (4 Wall.)

333 (1866). He urges that Garland “stands not only for the

general proposition that the President’s pardon power

nullifies any disabilities that attach as a result of the pardoned

conviction, but also for the specific proposition that

deprivation of the ability to practice law constitutes a

‘disability’ or ‘punishment’ that can be nullified by a pardon.”

Petition at 8. Petitioner misreads Garland. In Garland the

Court held that insofar as an 1865 Act of Congress required

attorneys, in order to maintain membership in the bar of the

federal courts, to take an oath that they had neither aided the

Confederacy during the Civil War nor held office in the

Confederate government, it was unconstitutional both as a

bill of attainder and an ex post facto law. It excluded

attorneys from their profession based on past conduct

and thus was a form of punishment for past conduct. 71 U.S.

(4 Wall.) at 377. In so ruling, this Court criticized the statute

in question as an attempt by Congress to regulate the conduct

of attorneys who

are not officers of the United States. . . . They are

officers of the court, admitted as such by its order,

upon evidence of their possessing sufficient legal

learning and fair private character. ..., and are

responsible to it for professional misconduct. They

hold their office during good behavior, and can

only be deprived of it for misconduct ascertained

and declared by the judgment of the court

after opportunity to be heard has been afforded.

Their admission or their exclusion .... is the

17

exercise of judicial power, and has been so held

in numerous cases.

Id. at 378-79 (emphasis added).

The expansive language in Garland on which Petitioner

relies, concerning the “blotting out” of guilt by a presidential

pardon,’ was dictum which the Court viewed as

“strengthening” its holding that the legislation at issue was

unconstitutional as a bill of attainder and an ex post facto

law. Jd. at 380. This language has almost universally been

interpreted by the lower courts as dictum and inconsistent

with both earlier and later decisions of this Court interpreting

the Pardon Clause. E.g., In re North (George Fee

Application), 314 U.S. App. D.C. 102, 105, 62 F.3d 1434,

1437 (1994) (Div’n for the Purpose of Appointing

Independent Counsels); United States v. Noonan, 906 F.2d

952, 958 (3d Cir. 1990); Bjerkan v. United States, 529 F.2d

125, 128 n.2 (7" Cir. 1975); In re Abrams, supra, 689 A.2d

7. The passage at issue is as follows:

A pardon reaches both the punishment prescribed for

the offence and the guilt of the offender; and when the

pardon is full, it releases the punishment and blots out

of existence the guilt, so that in the eye of the law the

offender is as innocent as if he had never committed the

offence. If granted before conviction, it prevents any of

the penalties and disabilities consequent upon conviction

from attaching; if granted after conviction, it removes

the penalties, and restores him to all his civil rights; it

makes him, as it were, a new man, and gives him a new

credit and capacity.

71 U.S. (4 Wall.) at 380-81.

18

at 16-19; In re Lavine, 2 Cal.2d 324, 331-32, 41 P.2d 161,

164, modified, 42 P.2d 311 (1935). Indeed, given the Garland

Court’s earlier emphasis on the authority of the courts to

regulate the legal profession, the dictum can hardly be read

as mandating reinstatement to the bar of the court of an

attorney disbarred for a conviction involving moral turpitude

who later receives a presidential pardon. Moreover, given

Garland '’s emphasis on the authority of the courts to regulate

the legal profession, the decision of the court below is entirely

consistent with Garland.

Nor is the decision of the court below inconsistent with

any of the other decisions of the Court interpreting the Pardon

Clause. E.g., Knote v. United States, 95 U.S. 149, 153-154

(1877) (“[A pardon] does not make amends for the past. . . .

The offence being established by judicial proceedings, that

which has been done or suffered while they were in force is

presumed to have been rightfully done and justly suffered,

and no satisfaction for it can be required.”); Carlesi v. New

York, 233 U.S. 51 (1914) (use of a pardoned conviction for

sentence enhancement does not constitute punishment for

the earlier offense in derogation of the President’s pardon

authority); Burdick v. United States, 236 U.S. 79, 91 (1915)

(a pardon implies guilt of the offense for which it is granted).

In a leading scholarly analysis of this Court’s Pardon Clause

cases, Professor Samuel Williston concluded:

The true line of distinction seems to be this:

The pardon removes all /egal punishment for the

offence. Therefore if the mere conviction

involves certain disqualifications which would not

follow from the commission of the crime

19

without conviction, the pardon removes such

disqualifications. On the other hand, if character

is a necessary qualification and the commission

of a crime would disqualify even though there had

been no criminal prosecution for the crime, the

fact that the criminal has been convicted and

pardoned does not make him any more eligible.

Samuel Williston, Does a Pardon Blot Out Guilt?, 28 Harv.

L. Rev. 647, 653 (1915) (emphases added). Here, Petitioner’s

disbarment was not legal punishment, character is

unquestionably a necessary qualification for membership in

the bar, Petitioner’s crimes would have disqualified him from

the practice of law even if he had not been prosecuted

criminally, and the fact that he has been convicted and

pardoned does not make him any more eligible for

membership in the bar.

Professor Williston’s view of the Court’s cases on the

Pardon Clause is shared almost universally by the lower

courts, whose decisions are consistent with that of the court

below. Where, as here, an order of disbarment has been

entered before the conviction is pardoned, the lower courts

have stated that the pardon does not erase the fact of the

attorney’s conviction and the moral turpitude inherent in the

very elements of the offense, and thus the proper course is to

consider the effect of the pardon in reinstatement

proceedings. Borders III, 797 A.2d at 718 (Pet. App. at

8a-9a)*; accord, Grossgold v. Supreme Court of Illinois, 557

8. Petitioner’s claim that the court below failed to follow its

own prior holding in Jn re Abrams, supra, is incorrect. Petitioner

cites language in Abrams suggesting that if Bar Counsel had sought

to disbar Abrams summarily under D.C. Code § 11-2503(a) based

(Cont’d)

20

F.2d 122, 125 (7" Cir. 1977) (upon grant of presidential

pardon, attorney disbarred on account of conviction of crime

involving moral turpitude not entitled to automatic

reinstatement but may urge pardon as a consideration for

reinstatement)’; Jn re Lavine, supra (same; gubernatorial

(Cont'd)

on his conviction of a crime of moral turpitude, rather than for

violations of the disciplinary rules based on the underlying conduct,

such a course would have been “precluded” because Abrams was

pardoned before any disciplinary sanction was imposed. As the court

below noted, its holding is not inconsistent with this dictum in Abrams

because Petitioner was not pardoned until long after his summary

disbarment pursuant to D.C. Code § 11-2503(a). Borders III, 797

A.2d at 717-18 (Pet. App. at 7a-8a).

For the same reason, Petitioner’s reliance on Scott v.

State, 6 Tex.Civ.App. 343, 25 S.W. 337 (Tex. Civ. App. 1894),

and Jn re Emmons, 154 P. 619, 621 (Cal. Ct. App. 1915), is misplaced.

These cases concern the disbarment of an attorney based solely on

the record of a conviction after the conviction has been the subject

of a pardon. In these circumstances, a disciplinary proceeding may

be instituted based on the underlying conduct, but not on the basis

of the record of the conviction alone. See Office of Legal Counsel,

U.S. Department of Justice, Memorandum for the Pardon Attorney,

June 19, 1995 (available at www.usdoj.gov/olc/pardon3.19.htm).

As this and other Departmental opinions make clear, a presidential

pardon does not foreclose the imposition of professional discipline.

E.g., Op. Att’y Gen. No. 78-84, 2 Op. Off. Legal Counsel 370 (1977)

(“while a pardon relieves the offender of all disabilities imposed by

way of punishment, it does not relieve an offender of disabilities

that attend a conviction”).

9. Grossgold had been suspended from the practice of law some

five years after his conviction on nine counts of mail fraud. Less

than a month later he received a presidential pardon. The Seventh

Circuit found it lacked subject matter jurisdiction to consider the

(Cont'd)

Se ee a

21

pardon for crime of moral turpitude); Jn re Kaufman, 245

N.Y. 423, 430-31, 157 N.E. 730, 733 (1927) (same;

presidential pardon for felony conviction). This point was

stated eloquently by Chief Judge (later Justice) Cardozo ina

case in which a presidential pardon had been granted four

years after a summary disbarment based on a felony

conviction:

[R]einstatement will not follow automatically

from pardon without more.... There must be

convincing proof of innocence before pardon will

restore to the fellowship of the bar. Even

innocence of crime will not suffice if there has

been a failure to live up to the standards of

morality and honor. Pardon does no more than

open the door to an inquiry that would otherwise

be barred.['°] ... [T]he power to pardon is

bestowed on the Executive. For this, the statute

Says that upon pardon or reversal, the power to

reinstate shall be vested in the courts.[!"]

(Cont’d)

matter. Nevertheless, assuming arguendo that it had jurisdiction, the

court went on to declare that “the presidential pardon did not wipe

out the moral turpitude inherent in the factual predicate supporting

plaintiff’s mail fraud conviction,” 557 F.2d at 125, and did

“not relieve [the] attorney from discipline,” id. at 126.

10. The Kaufman Court was speaking in the context of a

disciplinary system in which disbarments are otherwise permanent.

11. The New York statute under which Kaufman was disbarred

contained a provision virtually identical to that in D.C. Code § 11-

2503(a), making reinstatement after a pardon discretionary with the

court. See 245 N.Y. at 426, 157 N_E. at 731.

22

The federal and state authority on which Petitioner relies is

all inapposite. See notes 6 and 8, supra.'*

Ill. THE DECISION OF THE COURT BELOW DOES

NOT HAVE FAR-REACHING IMPLICATIONS

Petitioner contends that the decision of the court “will

have potentially enormous consequences” for the recipients

of pardons because it “greatly limits the scope of the

presidential pardon power,” “allowing disabilities that depend

solely on a federal conviction to remain in effect even when

the conviction has been nullified” by a pardon. Petition at

15-16. To the contrary, as demonstrated above, the decision

does not concern a disability or punishment imposed for a

pardon. The decision is limited to the situation in which an

attorney who has previously been disbarred for a conviction

found to involve moral turpitude is subsequently granted a

pardon. The holding that the pardon does not strip the court

below of its authority in this crcumstance to require that the

attorney demonstrate his competence and moral fitness before

being reinstated to the pract:ce of law is consistent with

12. Petitioner contends thatthe decision of the court below is

in conflict with the Seventh Circuit’s decision in Bjerkan v. United

States, 529 F.2d 125 (7™ Cir. 1975). To the contrary, the decision of

the court below is consistent with the relevant Seventh Circuit

authority, Grossgold, on which tke court below relied. Borders III,

797 A.2d at 718 (Pet. App. at 9a): see note 9, supra. In Bjerkan, the

Seventh Circuit held that the grart of a pardon to a prisoner mooted

his appeal of the denial of his motion pursuant to 28 U.S.C. § 2255,

because the pardon removed all collateral consequences of his

conviction. The decision has no application to the situation of an

attorney who is pardoned after his disbarment for a criminal

conviction involving moral turpitide, the precise question presented

in Grossgold.

23

Ex parte Garland and other decisions of this Court

interpreting the President’s power under the Pardon Clause,

as well as with relevant authority in both the federal and

state courts. Contrary to Petitioner’s contention, no

“recurring” question “of exceptional importance” is

presented. !?

13. Petitioner acknowledges that even if this Court were to grant

certiorari and reverse the ruling of the court below, a disciplinary

proceeding could yet be brought against him for the underlying

disciplinary rule violations. Petition at 16 n.11. Thus, Petitioner’s

success in this Court might result only in the reinstitution of

disciplinary proceedings at which he could again be disbarred.

In this regard, Petitioner has never testified that he did not commit

the criminal offenses of which he was convicted, either at his 1982

trial or at the 1993 hearing on his first petition for reinstatement.

Indeed, in seeking reinstatement, Petitioner “admitt[ed] that

his conduct had been ‘corrupt.’” Borders IJ, 665 A.2d at 1383.

The complete record of Petitioner’s trial, which was before the

Hearing Committee, the Board, and the court below in connection

with his first petition for reinstatement, clearly established myriad

violations of the disciplinary rules in effect at the time of Petitioner’s

conduct. Petitioner has never contended that the conduct underlying

his criminal convictions did not violate these rules. Further,

Petitioner’s post-conviction refusal to testify before the grand jury

investigating Judge Hastings, while he was still a member of the

Bar, albeit suspended, constitutes a separate proven, although as yet

uncharged, violation of the disciplinary rules.

24

CONCLUSION

For these reasons, the petition for writ of certiorari should

be denied.

Respectfully submitted,

Joyce E. PeTers*

Bar Counsel

JUDITH HETHERTON

Assistant Bar Counsel

District Or COLUMBIA

OFFICE Or BAR COUNSEL

515-5th Street, N.W., Room 127

Washington, D.C. 20001

(202) 638-1501

Counsel for Respondent

* Counsel of Record

Sp BASE Pe NAS