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Attorney Grievance Commission of v. Protokowicz6/9/1992
s context, where there is no, or little, connection between the elements of the crime of which the lawyer has been convicted and those character traits or skills deemed necessary to the ethical practice of law, interim suspension will constitute naked punishment, an early imposition of the penultimate sanction, which does not advance the purpose of the Rule at all.
Preservation of the bar's image is not an independent raison d'etre for interim suspension under Rule BV16. An aspect of it is however, indirectly relevant to the Rule's purpose of protecting the public from the unfit and, more particularly, unscrupulous practitioner; in determining a convicted lawyer's fitness to practice law, a court may legitimately consider whether a conviction that indicates that a lawyer has a character flaw which is inimical to the ethical practice of law will cause public concern about that lawyer's fitness to continue practicing law. But it is what the conviction portends, not the public perception, that necessitates the extreme sanction of interim suspension. The cases cited by the majority say no more. Thus, the
emphasis in Siegel was on the requirement that an attorney's character remain beyond reproach. The profession's image was mentioned only in that context. 275 Md. at 528, 340 A.2d at 714. Reamer, which involved an attorney convicted of a crime involving moral turpitude, is to like effect.
ABA Standard 2.4, subsection (b) is explicit in its statement that it is "the lawyer's continuing conduct" that must cause or be likely to cause "immediate and serious injury to a client or the public." That its focus is on character traits implicated by the conviction is buttressed by the commentary to that standard.
In United States v. Friedland, 502 F.Supp. 611, 615-16 (D.N.J.1980), aff'd, 672 F.2d 905 (3rd Cir.1981), the suspended lawyers had been convicted of seven federal felonies, each involving fraud in one form or another. Consistent with the court's practice, they were suspended pending conclusion of disciplinary proceedings and that order was confirmed after challenge. In the course of the opinion, the court referred with favor to that portion of the Model Federal Rules of Disciplinary Enforcement approved by the Judicial Conference of the United States on September 21, 1978, that permitted suspension of an attorney convicted of a "serious crime," and to its definition. "Serious crime" was defined as including "any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of such crime in the jurisdiction where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a 'serious crime.'" The lawyer in State Bar of Texas v. Heard, 603 S.W.2d at 829 (Tex.1980) was suspended, pending appeal, following conviction for conspiracy to commit mail fraud and multiple substantive counts of mail fraud. The statute which was the basis for the suspension referenced "any felony involving moral turpitude . . . or any misdemeanor involving the theft, embezzlement, or fraudulent
misappropriation of money or other property." 603 S.W.2d at 831. Finally, the crimes for which the attorney in United States v. Jennings was convicted and on the basis of which he was suspended were "plainly felonies involving moral turpitude." 724 F.2d 436, 448 (5th Cir.1984). It is in the context of the crimes of which the attorneys were convicted that the remarks cited by the majority must be construed. W
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