In late June, the District of Columbia Court of Appeals Board on Professional Responsibility overruled and remanded a case to a lower court’s which previously ruled that American attorney Jinhee Kim Wilde’s South Korean felony conviction for theft was grounds for mandatory disbarment. Wilde was convicted of theft under the Korean Penal Law after the Incheon District Court in Incheon, South Korea determined that the American attorney stole $1000 from a passenger on a flight from the U.S. to South Korea. Upon discovering that the Maryland based and D.C. admitted attorney, Wilde, was convicted of the crime, the D.C. Bar Counsel sought and was granted an immediate suspension of Wilde’s license to practice before D.C. courts.
Under the District’s ethical rules, an attorney who is found to have committed a crime of “moral turpitude” is subject to mandatory disbarment. See D.C. Code § 11-2503(a). Moreover, there are some instances in which a finding of moral turpitude per se may be found. And in such circumstances disbarment is likewise mandatory. In general, crimes involving theft or fraud are thought to involve moral turpitude and do not need to be examined on merits by a tribunal before disbarment may be imposed. See In re Hallmark, 998 A.2d 284, 285 (D.C. 2010) (per curiam). Therefore, upon receiving a certified copy of the conviction, an ethics board will disbar an attorney who has been convicted of a crime involving moral turpitude as a matter of course.
Here, it was clear that Wilde was convicted of felony theft in South Korea. Nonetheless, the D.C. high court decided that the South Korean conviction could not serve as the basis for a finding of moral turpitude per se. But why? Isn’t theft in Korea just as shocking to the conscience as theft in America is? Not when due process cannot be verified, said the Court.
In the D.C. court’s opinion, a foreign country’s judicial processes are inherently “suspect.” And, where it comes to bear that a domestic court cannot ensure that the fundamental American notions of fairness and due process have been observed in a foreign court, there can be no finding of moral turpitude per se. The Court cited foreign penal codes that make it a crime punishable by up to three years in prison to commit an act of vandalism to support its position that foreign justice systems are untrustworthy . See, e.g., Singapore Vandalism Act, ch. 108, §§ 2, 3, III Statutes of Republic of Singapore, pp. 257-58 (cited in Small v. United States, 544 U.S. 385, 390 (2005)).
In any event, the Court decided that statutory construction deprived them of jurisdiction over the matter. In support of its submission to the Court, the D.C. Bar Counsel cited language from the ethical rules to assert that the South Korean conviction could be validly considered before the D.C. court. The D.C. Ethics Code provides that “[i]f an attorney is found guilty of a [serious] crime or pleads guilty or nolo contendere to a criminal charge in a court outside the District of Columbia,” then “the Court shall enter an order immediately suspending the attorney.” Construing “a court outside the District of Columbia” to include foreign courts, the Bar Counsel argued that the initial suspension and pending moral turpitude per se proceedings were justified. However, the Court declined to include foreign courts within the meaning of the language. See In re Wilde, No. 10–BG–1351, 2013 WL 3064590, at *6 (D.C. Cir. June 20, 2013).
The upshot of this ruling is that an American attorney who would normally face mandatory disbarment as a result of their conviction for a crime involving moral turpitude is exempted from that discipline if their crime was committed outside of the United States–whether or not the foreign crime is identical to its domestic counterpart. So I ask, What do you think about the Courts ruling? Is it fair that an American attorney is disciplined according to where in the world his or her crime was committed? Did the D.C. court get it right? What sort of message does this send to countries like South Korea?
Note: The Court did indicate in its opinion that the Bar Counsel could bring an action before the Court pursuant to the normal investigative procedures provided for in Rule XI, §10 of the D.C. Code. I do not want it to seem as though I am arguing that there are no other means for disciplining Ms. Wilde. I only intend to highlight the disparate treatment between foreign crimes and domestic crimes in this context.
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Article Sources: D.C. Rules of Professional Conduct; Law.com; In re Wilde, No. 10–BG–1351, 2013 WL 3064590, at *6 (D.C. Cir. June 20, 2013).
I tend to agree with the D.C. Court of Appeals Board on Professional Responsibility. I think that to treat a crime as one of moral turpitude per se and further require a mandatory disbarment, then the convicted should be allowed the due process required in the Country he/she is being disbarred. This is not to say I am familiar with South Korean law or it standards of fairness, but it is surely a possibility that the proceedings required in South Korea may not elevate to the standards set forth by the United States. Jinhee Kim Wilde deserves a normal investigative procedure under American law and if it is fact found that he then deserves disbarment, then surely that is what he should receive. It goes without saying that losing your license to practice law is akin to losing your livelihood if you are a practicing attorney; and the highest safeguards should be afforded before it is taken away.
It is an interesting and thought-provoking piece which touches upon the due processes concept. A law license is certainly deemed a “property” interest. See generally Goldberg v. Kelly; Board of Regents v. Roth; Loudermill. In the United States, a person, who is about to lose his property interest, should have minimum procedural safeguards. Some of these safeguards are:
• Due process requires an opportunity to confront and cross-examine adverse witnesses …
• The recipient must be allowed to retain an attorney if he desires.
• The decision-maker should state the reasons for his determination and indicate the evidence he relied on. An impartial decision-maker is essential.
I suppose a D.C. court should scrutinize South Korean procedural process to make a determination whether or not all these safeguards were in place before it decides to bind itself to the decision from a foreign jurisdiction.