D.C. Gives Free Pass To Big Firm Lawyer

A case that started with a felony conviction has resulted in probation with no period of suspension in a decision of the District of Columbia Court of Appeals.

Thus a big firm lawyer avoids any meaningful sanction for nearly killing an innocent victim.

Respondent, Wayne R. Rohde, was convicted over a decade ago in Virginia of “leaving the scene of an accident,” a felony. The Board on Professional Responsibility (“the Board”) has determined that Mr. Rohde committed both a “serious crime,” under D.C. Bar R. XI section 10 (b) and violated Rule 8.4 (b) of the Rules of Professional Conduct by committing “a criminal act that reflects adversely on [his] . . . fitness as a lawyer.” As a sanction, the Board recommends a two-year suspension from the practice of law, with a fitness requirement, stayed in favor of three years of probation with conditions. Mr. Rohde has not contested either the Board’s assessment of his misconduct or its recommended sanction. Disciplinary Counsel, however, argues that the Board’s recommended sanction is inadequate. Specifically, Disciplinary Counsel argues that because Mr. Rohde’s crime involved moral turpitude, either per se or on the facts, Mr. Rohde must be disbarred per D.C. Code § 11-2503 (a) (2012 Repl.). Alternatively, Disciplinary Counsel argues that this court should disregard Mr. Rohde’s Kersey mitigation evidence (which it argues should not be considered in a disciplinary case based on a felony conviction) and exercise its discretion to disbar Mr. Rohde.

Editors note: It took over a decade because of gross systemic failure – the hearing committee took seven years to issue a report.

This court employs three distinct analyses to evaluate a bar discipline case based on a criminal conviction. We begin with an element-focused inquiry to assess if the crime is one of moral turpitude per se. If it is not, we then refocus the inquiry to assess the facts and circumstances that fairly bear on the question of moral turpitude in the actual commission of the crime, such as motive or mental condition. If the crime is not one of moral turpitude, either per se or on the facts, we then conduct a comprehensive analysis of the totality of the circumstances, including any aggravating and mitigating factors, and exercise our discretion to impose a just sanction.

 Applying this rubric to Mr. Rohde’s case, we conclude, based on an examination of the crime’s elements, that his conviction under Virginia law for leaving the scene of an accident without complying with reporting requirements or rendering aid to the person whose car he hit does not meet the stringent test for moral turpitude per se. We further conclude that Mr. Rohde’s offense was not one of moral turpitude on the facts, relying on the undisputed evidence that Mr. Rohde was in an alcoholic blackout during its commission and the credited expert testimony that he was unable to exercise appropriate judgment while in that condition. Lastly, we exercise our discretion as to the appropriate sanction. Considering the totality of the circumstances, we acknowledge the gravity of Mr. Rohde’s conduct as well as his previous pattern of drinking and driving, but we also look to his powerful Kersey mitigation evidence (which we hold is properly considered in cases involving a felony conviction but not reflecting moral turpitude). Specifically, Mr. Rohde demonstrated that at the time he committed this crime he was suffering from alcoholism, that he subsequently sought treatment, and that he has now been in recovery for many years. In light of Mr. Rohde’s rehabilitation and the distinct function of the disciplinary system not to punish but “to maintain the integrity of the [legal] profession . . . to protect the public and the courts, [and] to deter other attorneys from engaging in similar misconduct,” In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc), we see no utility in disbarring or actively suspending Mr.Rodhe and thus adopt the Board’s recommended sanction.

There might be some utility in cautioning the Bar about the commission of such crimes and instructing that the consequences will be more than a total free pass.

My case summary

Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.

After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.

His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.

He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court’s usual (indeed, nearly invariable) practice for felony convictions.

The hearing was competed on January 15, 2008.

The report was filed last Friday – seven years and a day after.

And it stinks.

According to the committee, the offense is not one of moral turpitude and was caused by his alcoholism. The committee bought his story that he was essentially morally blameless due to an “alcoholic blackout.”

Notably, he denied an ongoing alcohol problem when it served his purposes in the criminal case. In the disciplinary case, the cause was demon rum. That little inconsistency was no problem for the hearing committee.

Nor were his four prior alcohol-related traffic accidents an issue.

My read on the Board on Professional Responsibility report

So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.

No real disciplinary consequences because he’a an alcoholic?

As noted, and in sharp contrast to the attorney in the Kersey case (which I prosecuted), this attorney was practicing effectively at a major firm at the time of the near-fatal collision. The evidence in Kersey showed that his alcohol addiction had pervasively impaired every aspect of his professional and personal life.

Further, Kersey did not involve a felony or any other crime.  

The court apparently – and dangerously – holds that Kersey mitigation is now available to convicted felons. Maybe so. But it cannot dilute or negate any element of the offense. See Rule XI, section 10. That pretty much destroys the “blackout” story. 

A prior decision (linked above) correctly held

 While Hopmayer maintains that his alcoholism negates the element of moral turpitude, the Board takes the position that Hopmayer’s [theft] conviction is conclusive evidence of his mental intent, that he should not be granted a hearing to dispute or explain the factual circumstances underlying the offense, and that this court should disbar him. The issue in this case is one of first impression in the District of Columbia. We agree substantially with the Board, adopt its recommendation, and order Mr. Hopmayer disbarred.

And the floodgates are now open. Mitigation that would be laughed out of a criminal court (try telling a court you are not guilty of fleeing an accident scene because you were in an alcoholic blackout and see how far you get) can now save your D.C. law license without a hiccup.

This is one of the most shameful days in the history of the D. C. Bar.

It has been over 20 years since the court considered a bar discipline case en banc. The last one – In re Elliott Abrams – was my case.

This case deserves the full court’s attention.  (Mike Frisch)