Attorney Grievance Commission v. Mitchell

COLE, Judge,

dissenting.

In this case, the Court imposes the sanction of indefinite suspension upon an attorney who has been convicted of a crime of moral turpitude having no relation to his ability to practice law. I believe the appropriate sanction is disbarment. I, therefore, dissent.

As I see it, this Court has employed three sanctions to remove attorneys from the practice of law. First, we have imposed the sanction of disbarment when an attorney has demonstrated his unfitness to be a member of the Bar by criminal misconduct that amounts to conduct of moral turpitude or by misconduct that shows a basic lack of character rendering the attorney’s continued membership in the Bar of this State prejudicial to the administration of justice.

Second, when the professional misconduct of the attorney stems from a mental or physical malady that substantially impacts upon the attorney’s ability to function as a responsible member of the legal profession, we have imposed the sanction of indefinite suspension. Our theory is that the attorney’s illness mitigates his professional trangressions and that, if the illness or malady is treated and controlled, the attorney may at some future time be once again entrusted with the affairs of others. Stated differently, if the disability under which the attorney had labored is removed, the attorney presumably will be able to assume his professional responsibilities with competence.

Finally, when the attorney is incompetent and cannot function within professional standards because of age, infirmity or other physical or mental disability, we have placed him on inactive status to protect the public as well as the attorney himself.

In the instant case, the conduct that the Court finds opprobrious is that the Respondent was convicted of a second degree sexual offense for which he received a sus*657pended ten-year sentence subject to a five-year period of probation. Factually, the Respondent performed fellatio upon a thirteen-year-old boy on five separate occasions over a period of eighteen months. The facts elicited at the disciplinary hearing further showed that the Respondent was a compulsive homosexual pedophiliac who, despite psychiatric treatment, was unable to control his proclivity. Significantly, there was no evidence to demonstrate that Respondent’s uncontrollable impulses interfered with his ability to maintain his law practice, that the subjects of his sexual attention were clients or the children of clients, or that the Respondent was engaged in the practice of juvenile or domestic relations law. In other words, there was no nexus, near or remote, connecting Respondent’s criminal misconduct with his practice of law.

Nonetheless, this Court concludes that indefinite suspension is an appropriate sanction. I find this conclusion incredibly incongruous.

Clearly, we have said that an indefinite suspension should be imposed where professional misconduct has been “caused” by a mental or physical illness. See Attorney Grievance Comm’n v. Willemain, 305 Md. 665, 506 A.2d 245 (1986); Attorney Grievance Comm’n v. Shaffer, 305 Md. 190, 502 A.2d 502 (1986); Attorney Grievance Comm’n v. Miller, 301 Md. 592, 483 A.2d 1281 (1984); Attorney Grievance Comm’n v. Aler, 301 Md. 389, 483 A.2d 56 (1984); Attorney Grievance Comm’n v. Nichols, 301 Md. 172, 482 A.2d 499 (1984); Attorney Grievance Comm’n v. Truette, 299 Md. 435, 474 A.2d 211 (1984); Attorney Grievance Comm ’n v. Dunphy, 297 Md. 377, 467 A.2d 177 (1983); Attorney Grievance Comm’n v. Willemain, 297 Md. 386, 466 A.2d 1271 (1983); Attorney Grievance Comm’n v. Finlayson, 293 Md. 156, 442 A.2d 565 (1982); Attorney Grievance Comm’n v. Willcher, 287 Md. 74, 411 A.2d 83 (1980); Attorney Grievance Comm’n v. Flynn, 283 Md. 41, 387 A.2d 775 (1978); Attorney Grievance Comm’n v. Cooper, 279 Md. 605, 369 A.2d 1059 (1977). Respondent’s misconduct does not fall within this category. Nor does *658Respondent fit the mold of one who is incompetent and cannot function because of a physical or mental impairment. Respondent is a convicted criminal whose misconduct has not affected his ability to practice law. However, because of the nature of his conduct — moral turpitude — his continuance as a practicing member of the Bar of this State is prejudicial to the administration of justice. Accordingly, Respondent should be disbarred.

Judge McAULIFFE has authorized me to state that he concurs with the views expressed herein.