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Attorney Grievance Commission of v. Protokowicz6/9/1992
hen that is done, it is clear that it is the interconnection between the character of the attorney, i.e. his fitness to practice law, as revealed by the conviction, and the perception of the public that caused those courts to refer to the purpose of interim suspension in terms of protecting the public and protecting the profession's image.
II.
As indicated, the decision to suspend on an interim basis must be made on the basis of the fact of conviction, the nature of the crime, and any judicial admissions made by the attorney. It may not be based on the facts alleged by bar counsel to aggravate the particular conviction. Facts that are not necessarily evident from the conviction itself should not be taken as proven, unless, of course, the respondent admits them. Thus, ordinarily, it will be the nature of the crime, i.e., what the elements of the crime tell us about the attorney's character and, hence, the need to protect the public, that will direct our decision.
In this case, the majority notes that a conviction for the crime of breaking and entering under Art. 27, § 31A "standing alone, may suggest that an interim suspension would be inappropriate in a variety of circumstances surrounding a conviction of this offense." [At 719] It then proceeds to consider "the surrounding circumstances of the offenses as established by facts not in dispute" and, on that basis, to order an immediate suspension.
I do not disagree with the majority as to what may be considered in the interim suspension decision. Because the majority quotes a number of Bar Counsel's allegations,
none of which, unadmitted, may be considered, I set forth why I concur in the judgment. The respondent's answer, in particular the statement attached to it, in addition to mitigating matters, admits the breaking and entering, the purpose of which was to retrieve a document claimed by his accomplice, the cruelty charge, taking and drinking, without permission, champagne he found in the refrigerator, spilling champagne in various places in the house, including the kitchen floor, and killing the cat during the B & E. At oral argument, the respondent's counsel acknowledged the removal of papers and a piece of jewelry from the house. These admissions are enough to justify an interim suspension. A lawyer who participates in a breaking and entering knowing that its purpose is to "take" property and, in addition, himself "takes" and consumes personal property belonging to the occupant of the house, without permission, does more than simply breaks and enters; that lawyer breaks and enters with intent to steal as well as breaks and enters and steals. The crime that the respondent was convicted of coupled with the surrounding circumstances which he admits reflect adversely on the respondent's fitness to practice law, warranting interim suspension.
Concurrence Footnotes
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