In re Wayne R. Rohde

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 05-BG-1141
IN RE WAYNE R. ROHDE, RESPONDENT
A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 421213)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-D347-05)
(Argued October 11, 2016 Decided August 30, 2018)
Timothy J. Simeone, with whom Thomas B. Mason and John R. Grimm were
on the brief, for respondent.
Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, with whom
Wallace E. Shipp, Jr., Disciplinary Counsel at the time the brief was filed, Jelani
Lowery, Senior Staff Attorney, and Joseph N. Bowman, Assistant Disciplinary
Counsel, were on the brief, for the Office of Disciplinary Counsel.
Before EASTERLY and MCLEESE, Associate Judges, and WASHINGTON,
Senior Judge, ∗
∗
Judge Washington was Chief Judge at the time of argument. His status
changed to Senior Judge on March 20, 2017.
2
Opinion for the court by Associate Judge EASTERLY.
Concurring opinion by Associate Judge MCLEESE at page 34.
EASTERLY, Associate Judge: Respondent, Wayne R. Rohde, was convicted
over a decade ago in Virginia of “leaving the scene of an accident,”1 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.
1
Va. Code § 46.2-894 (2005).
3
Rohde’s Kersey 2 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.
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
2
In re Kersey, 520 A.2d 321 (D.C. 1987).
4
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.
5
I. Facts and Procedural History
On October 20, 2004, Mr. Rohde went out drinking after work with friends.
After consuming a large quantity of alcohol, he drove home to northern Virginia.
On his way home, he collided head-on with another car. The other car was totaled
and his car sustained significant front-end damage. The other driver, Ms. Banks,
was severely injured. Mr. Rohde did not stop. Instead, he drove four or five
blocks home on a flat front tire and an exposed rim, causing sparks to fly. He
parked his car in the driveway of his house and went inside. He did not respond to
the police who, having found Mr. Rohde’s license plate at the scene, came to his
house some time later that evening, banged on his door for 20-30 minutes, and
towed his damaged car away. He did not respond to a phone call from his friend
and neighbor, Joshua Horowitz.
After speaking to Mr. Horowitz the following morning, Mr. Rohde contacted
counsel and turned himself in to the police. He was indicted on one count of
felony leaving the scene of an accident, Va. Code § 46.2-894 (2005), which
requires
The driver of any vehicle involved in an accident in which a
person is killed or injured or in which an attended vehicle or
6
other attended property is damaged shall immediately stop. . .
and report his name, address, driver’s license number, and
vehicle registration number forthwith to . . . law[] enforcement
. . ., to the person struck and injured if such person appears to
be capable of understanding and retaining the information, or to
the driver or some other occupant of the vehicle collided with
or to the custodian of other damaged property. The driver shall
also render reasonable assistance to any person injured in such
accident . . . . 3
He pled guilty to the indictment and timely reported his conviction to Disciplinary
Counsel and this court.
Mr. Rohde and Disciplinary Counsel initially litigated whether felony
leaving the scene of an accident under Va. Code § 46.2-894 was a crime of moral
turpitude per se, which would obviate an evidentiary hearing and require Mr.
Rohde’s automatic disbarment under D.C. Code § 11-2503 (a). The Board
concluded that Mr. Rohde’s conviction was not a crime of moral turpitude per se.
The Board then ordered an evidentiary hearing to determine whether Mr. Rohde
had committed a crime of moral turpitude on the facts. A hearing committee
convened for three days spanning the end of 2007 and the beginning of 2008.
3
A defendant may be convicted of “(i) a Class 5 felony if the accident
results in injury to or the death of any person, or if the accident results in more than
$1000 of damage to property or (ii) a Class 1 misdemeanor if the accident results
in damage of $1000 or less to property.” Va. Code § 46.2-894 (2005).
7
At the hearing, Mr. Rohde testified that he had no memory of his collision
with Ms. Banks or of leaving the scene and that, when he learned the next morning
that he might have been in an accident, he was shocked and scared. Mr. Horowitz
corroborated that Mr. Rohde “clearly had no idea” what had happened the previous
evening; he “turned white” when he learned about the apparent accident; and he
was “very agitated” as a result. Mr. Rohde’s expert, Dr. Whitfield, and
Disciplinary Counsel’s expert, Dr. Blumberg, agreed that Mr. Rohde was blackout
drunk. Their only disagreement concerned the significance of that fact.
Dr. Whitfield, a medical doctor and psychotherapist who specializes in the
evaluation and treatment of alcoholics, explained that during an alcoholic blackout,
“working memory (short-term to long-term transfer and encoding), cognition
(constructive thinking ability), and judgment” are lost. He further explained that
the inability to create working memories would render an individual in a blacked
out state “unable to react and decide in a rational and appropriate way to ordinary
or extraordinary events.” Dr. Whitfield opined that, because of Mr. Rohde’s
intoxication and blackout, he “was only able to retain awareness of his collision
with Ms. Banks for seconds after it occurred” and “was not able to convert the new
sensory input into a long term memory, or access the part of his long-term memory
8
that would have informed a proper response to the collision.” Dr. Blumberg, a
forensic psychiatrist, agreed that an individual experiencing an alcoholic blackout
would have difficulty forming memories and would experience memory loss. But
he opined that the individual would still, in the moment, “know right from wrong.”
Consequently, Dr. Blumberg opined that Mr. Rohde “would have understood that
it was wrong to leave the scene, even if he did not subsequently remember having
such knowledge or awareness.” The Hearing Committee credited Dr. Whitfield’s
testimony in its entirety and Dr. Blumberg’s testimony insofar as it was consistent
with Dr. Whitfield’s. Although Disciplinary Counsel challenged these findings
before the Board, the Board declined to disturb them, concluding that they were
“well-supported [by] the record.”
Regarding his rehabilitation, Mr. Rohde presented evidence that he had
completed a substance abuse program, regularly attended Alcoholics Anonymous
(AA) meetings multiple times a week and had a sponsor, and participated in the
Bar’s Lawyer’s Assistance Program (LAP). He also became active in AA as an
organization, serving as his chapter’s treasurer. He successfully completed his
probationary sentence in his criminal case in 2007. Dr. Whitfield and Dr.
9
Blumberg agreed that Mr. Rodhe was taking his rehabilitation seriously and had an
excellent prognosis for recovery.
Post-hearing briefing was completed in August 2008. In 2013, the Hearing
Committee requested updated mitigation evidence because the evidence presented
in 2008 had become “stale.” In addition to the new evidence submitted by Mr.
Rohde regarding his recovery, 4 the Hearing Committee considered evidence
submitted by Disciplinary Counsel which it asserted reflected misrepresentations
by Mr. Rohde about his still-pending disciplinary proceedings. The Hearing
Committee issued its Report and Recommendation in January 2015. Disciplinary
Counsel filed exceptions with the Board and moved for a formal proceeding. The
Board held a hearing in April 2015 and issued its Report and Recommendation in
August 2015. This appeal followed.
4
Mr. Rohde presented evidence that he continued to attend AA meetings
multiple times a week, was meeting with his sponsor once a week, and had become
a sponsor for three other individuals. He also presented evidence of continuing to
meet with a counsel from LAP once a month and volunteering for LAP, meeting
with other attorneys with alcohol problems and speaking at local law schools.
10
II. Whether Mr. Rohde Committed a Crime of Moral Turpitude
D.C. Code § 11-2503 (a) (2012 Repl.) provides that “[w]hen a member of
the bar . . . is convicted of an offense involving moral turpitude, . . . [his] name . . .
shall be struck from the roll of the members of the bar and such person shall
thereafter cease to be a member.” “Whether [respondent’s] offense constitute[d]
moral turpitude within the meaning of the statute is a question of law . . .
committed to this court[’s judgment].” In re Spiridon, 755 A.2d 463, 468 (D.C.
2000). This court has distinguished “between offenses which manifestly involve
moral turpitude by virtue of their underlying elements, and those which do not.” In
re Colson, 412 A.2d 1160, 1164 (D.C. 1979). If an attorney’s crime of conviction
inherently involves moral turpitude—that is, moral turpitude per se—we have
directed disbarment without more. But if an attorney’s crime does not inherently
involve moral turpitude, the attorney is entitled to an evidentiary hearing to
determine whether the underlying conduct involved moral turpitude on the facts.
See In re Allen, 27 A.3d 1178, 1183 (D.C. 2011).
11
A. Moral Turpitude Per Se
We first consider whether felony leaving the scene of an accident under Va.
Code § 46.2-894 is a crime inherently “involving moral turpitude” within the
meaning of D.C. Code § 11-2503 (a). Obviously, moral turpitude “does not exist
merely because there has been a crime, [or] a violation of law.” In re Shorter, 570
A.2d 760, 765 (D.C. 1990). Although “[i]n a sense, it is immoral to violate any
law, even a traffic ordinance, . . . the words ‘involving moral turpitude’ clearly
suggest something much more serious, for otherwise they are pure surplusage.” Id.
We determine whether a crime inherently involves moral turpitude by examining
its elements. See In re Colson, 412 A.2d 1160, 1164 (D.C. 1979) (en banc). But,
as we have acknowledged in previous cases, exactly what we are looking for “has
not been defined with the utmost precision.” In re Johnson, 48 A.3d 170, 172
(D.C. 2012); see also Colson 412 A.2d at 1167 (acknowledging that “moral
turpitude has less than a finite definition”). As we summarized in In re Johnson,
We have said that a crime necessarily involves moral turpitude if the act
denounced by the statute grievously offends the moral code of mankind and
would do so even in the absence of a prohibitive statute; if it involves
baseness, vileness, or depravity in the private and social duties which a man
owes to his fellow men or to society in general, contrary to the accepted and
customary rule of right and duty between man and man; or if it entails
conduct contrary to justice, honesty, modesty, or good morals. We have also
looked to see if commission of the crime requires intentional dishonesty for
12
personal gain. Finally, we have observed that part of the calculus in
assessing whether a crime is one of moral turpitude per se is whether we can
say that the least culpable offender under the terms of the statute necessarily
engages in conduct involving moral turpitude—or whether the Board will
want to err on the side of admitting evidence that goes to the moral
implications of the particular respondents[’] acts, as a way of determining
whether his particular offense involved moral turpitude.
48 A.3d at 172–73 (internal citations and quotations omitted).
Examples of criminal offenses that this court has concluded constitute
crimes of moral turpitude per se include attempted murder,5 child abuse,6
obstruction of justice,7 conspiracy to commit mail and wire fraud, 8 attempted
extortion coupled with attempted witness and evidence tampering,9 bribery,10
forgery and grand larceny, 11 and espionage. 12 Were we to plot these offenses as
points on a graph, we would see a cloud of crimes evincing moral turpitude.
5
In re Farren, 118 A.3d 217 (D.C. 2015).
6
In re Wortzel, 698 A.2d 429 (D.C. 1997).
7
In re Kluger, 80 A.3d 648 (D.C. 2013).
8
In re Brown, 80 A.3d 1043 (D.C. 2013).
9
In re Johnson, 48 A.3d 170 (D.C. 2012).
10
In re Glover-Tonwe, 626 A.2d 1387 (D.C. 1993).
11
In re Sluys, 632 A.2d 734 (D.C. 1993).
12
In re Squillacote, 790 A.2d 514 (D.C. 2002).
13
Though the borders distinguishing these crimes from other violations of criminal
law may resist precise delineation, for the reasons that follow we are unpersuaded
that a conviction for felony leaving the scene of an accident as defined by Va.
Code § 46.2-894 falls within this cloud.
We begin our analysis with Disciplinary Counsel’s argument that “no one
found guilty of a felony under § 46.2-894 would have had a morally weighty
reason for leaving” the scene of an accident. But the question is whether the
statute codifies a duty to stay, such that leaving would evince “baseness, vileness,
or depravity.” Johnson, 48 A.3d at 172. We cannot say it does. The statute does
not distinguish between the person at fault and any other drivers “involved in an
accident.” Va. Code § 46.2-894. The statute encompasses accidents both “in
which an attended vehicle or other attended property is damaged,” and “in which a
person is killed or injured.” Id. The statute requires the crime to be prosecuted as
a felony if property damage exceeds $1000 or a person is killed or injured but it
does not set a threshold level of injury. Id. The statute does not distinguish
between a failure to stop at all, a failure to provide complete information (“name,
address, driver’s license number, and vehicle registration number”), or a failure to
provide information to all entities to whom disclosure is due. Id. Lastly, the
 14
statute does not distinguish between the failure to stop and the failure to provide
“reasonable assistance.” 13 The range of ways an individual might violate his or her
statutory obligations, some obviously graver than others,14 makes it impossible for
us to conclude that the statute, in all applications, criminalizes conduct that
“offends the generally accepted moral code of mankind,” “involves baseness,
vileness or depravity,” or offends universal notions of “justice, honesty, or
13
Virginia case law construing the statute requires “actual knowledge of the
occurrence of the accident” “but “hold[s] the driver to a stricter reasonable man
standard as to the fact or extent of the injury.” Kil v. Commonwealth, 407 S.E.2d
674, 679 (Va. Ct. App. 1991). That is, “[k]nowledge of injury may be imputed to
the driver where the fact of personal injury is visible or where the seriousness of
the collision would lead a reasonable person to assume there must have been
resulting injuries.” Neel v. Commonwealth, 641 S.E.2d 775, 778 (Va. Ct. App.
2007) (internal quotation marks omitted). Thus, even a negligent failure to take
note of injury, and the resulting failure to provide aid to the injured person, may
subject the driver to felony prosecution under the statute. Cf. Sanchez v. Holder,
757 F.3d 712, 721 (7th Cir. 2014) (explaining that under the Indiana statute
permitting felony conviction where “the driver should have known that an accident
occurred or should reasonably have anticipated that the accident resulted in
injury,” the “evil intent or corruption of the mind” necessary to support a
conclusion of moral turpitude per se was not manifest, and “further inquiry into the
circumstances of [the convicted driver’s] offense” was required to determine moral
turpitude vel non).
14
For example, a driver could be the last in line of a multi-car pileup where
one person suffers whiplash or the frame of one car sustains more than $1000
worth of damage and still be subject to prosecution for a felony if she leaves the
scene of the accident without complying with all the statute’s obligations.
15
morality.” In re Tidwell, 831 A.2d 953, 957 (D.C. 2003) (internal quotation marks
omitted).
Disciplinary Counsel also argues that a violation of the statute “show[s] an
effort to conceal the driver’s identity” and “deprives the State of evidence,” in this
case “about the condition of the car and the driver, including his blood alcohol
level at the time of the crime.” We disagree that the myriad ways a driver might
violate the statute would support an inference in all cases of a purpose to conceal
her identity; for example, a driver might provide her name and address and still
violate the statute if she fails to provide her vehicle registration number.
Moreover, we cannot say that the exclusive or even primary aim of the statute,
which applies to leaving the scene of all manner of accidents, is to facilitate
evidence collection for criminal prosecution. But even if it were, we disagree that
the failure of a private citizen to come forward to provide the government with
inculpatory evidence evinces a moral failure on par with tampering with witnesses
or obstructing justice.
We hold, accordingly, that the Virginia felony of leaving the scene of an
accident does not “inherently involve[] moral turpitude.” In re Allen, 27 A.3d at
16
1183. Mr. Rohde was therefore entitled to the comprehensive hearing he received
before the Hearing Committee to determine whether the commission of this crime
entailed moral turpitude on the facts.
B. Moral Turpitude on the Facts of the Crime
Disciplinary Counsel bore the burden to establish by clear and convincing
evidence that Mr. Rohde’s commission of felony leaving the scene of an accident
involved moral turpitude on the facts. See id. at 1184. The Hearing Committee
and the Board both determined that Disciplinary Counsel failed to carry this
burden.15 Again, our review is de novo. Id. at 1183.
Our inquiry to discern moral turpitude on the facts is not as limited as our
inquiry to discern moral turpitude per se. In the moral-turpitude-on-the-facts
inquiry, we refocus our lens and engage in “a broader examination of
circumstances surrounding [the] commission of the [crime in question] which
fairly bear on the question of moral turpitude in its actual commission, such as
15
On appeal to this court, Disciplinary Counsel abandoned its challenge to
the fact-finding made by the Hearing Committee and adopted by the Board.
17
motive or mental condition.” Spiridon, 755 A.2d at 466 (rejecting a purely
elements-based analysis to determine if an attorney’s crime reflects moral turpitude
on the facts). Our objective, however, is still to discern whether the attorney has
been convicted of “an offense involving moral turpitude, D.C. Code § 11-2503 (a)
(emphasis added). See Colson, 412 A.2d at 1164 (explaining “[a]n attorney is
subject to disbarment under the statute for his conviction of a crime involving
moral turpitude, not for commission of an act involving moral turpitude”)
(emphasis added). We tether our analysis to the attorney’s act of committing the
crime and ask whether we can say that the attorney’s commission of that crime
manifests baseness, vileness, or depravity. See, e.g., In re Allen, 27 A.3d 1178
(determining attorney convicted of theft did not do so for personal gain); In re
Rehberger, 891 A.2d 249 (D.C. 2006) (taking into account the vulnerability of
attorney’s assault victim and her status a client); Spiridon, 755 A.2d at 466
(focusing on the small amount of money stolen by respondent as well as his lack of
venal motive).
In Spiridon, we determined that the attorney was not acting for personal gain
but instead was motivated by “extreme stress, depression, and alcohol abuse.”
Borrowing Disciplinary Counsel’s language, we referred to these conditions as
18
“mitigating factors.” 755 A.2d at 466. But implicitly acknowledging the inaptness
of Disciplinary Counsel’s terminology, we also explained that “certain ‘mitigating
factors’” sometimes considered at the sanction stage—“such as the absence of a
previous disciplinary record or expression of remorse”—could not be considered at
the moral-turpitude-on-the-facts stage of the disciplinary analysis because they
would be “totally irrelevant to whether a crime involved ‘moral turpitude.’” Id. at
467. To clarify, our focus in the moral-turpitude-on-the-facts inquiry is not on
“mitigating factors” but rather on “commission factors” and specifically on
whether the attorney was acting in a manner that can be characterized as base, vile,
or depraved.16
16
The inquiry endorsed in Spiridon is thus “broader” than an elements-
based analysis, but we have never said that it is “broad.” Post at 35. Nor do the
cases to which our concurring colleague cites support consideration of every action
taken or decision made by a respondent that temporally precedes the commission
of the offense, as our concurring colleague appears to advocate. See In re Allen, 27
A.3d at 1186–87 (focusing on respondent’s motive for his crime and concluding it
was the aberrational result of the exceptional stressors in his personal and
professional life, rather than a desire for personal gain); In re Rehberger, 891 A.2d
at 252 (focusing on the “circumstances of the transgression,” specifically the fact
that the victim of the respondent’s battery crimes was a “quite vulnerable” and
relatively young client); In re Powell, 836 A.2d 579, 580 (D.C. 2003) (addressing
the moral-turpitude-on-the-facts inquiry only in a footnote and giving no indication
of what information the court understood to be relevant as part of the “full set of
facts” to be considered other than to note that they include “respondent’s emotional
state” at the time of the offense); In re Tidwell, 831 A.2d at 957–58 (see infra at
23–24; focusing on respondent’s knowledge that he had hit and killed someone
(continued…)
19
Here, the Board correctly focused the moral-turpitude-on-the-facts inquiry
on Mr. Rohde’s mental state when he committed the crime of leaving the scene of
an accident and “the testimony of [Mr. Rohde] and the experts” on that subject.17
That mental state did not manifest moral turpitude. The Board adopted the
Hearing Committee’s finding that Mr. Rohde did not consciously shirk his
obligations under Va. Code § 46.2-894 and knowingly drive away from an
accident where the other driver had been hurt; instead he was in an alcoholic
blackout and unable to conform his conduct to statutory obligations or societal
norms. In light of these factual findings, the Board reasonably concluded that Mr.
Rohde had not committed a crime of moral turpitude.
(…continued)
with his car); In re Spiridon, 755 A.2d at 469 (focusing on “the small amount of
money stolen and observing that respondent’s actions were not so much motivated
by a desire for personal gain as by psychological disturbances”).
17
As noted above, the moral-turpitude-on-the-facts inquiry encompasses the
“circumstances surrounding [the] commission of the [crime in question] which
fairly bear on the question of moral turpitude in its actual commission,” Spiridon,
755 A.2d at 466, which include, but are not limited to, motive and mental state. As
explained below, no other commission factors relevant to the moral-turpitude-on-
the-facts inquiry were raised in this case.
20
Disciplinary Counsel’s arguments to the contrary lack support in either the
record or our precedent. Disciplinary Counsel first argues that the Board
effectively considered Kersey mitigation18 twice when, as part of the moral-
turpitude-on-the-facts inquiry, it took into account evidence that Mr. Rohde was in
an alcoholic blackout and unable to exercise appropriate judgment. But the Board
did not do this; as discussed above, it followed Spiridon, which expressly permits
consideration of a respondent’s motive and mental state during the commission of
the crime. 19 Disciplinary Counsel’s argument that motive and mental state should
never be considered in a moral-turpitude-on-the-facts inquiry in felony cases, and
that the rule in Spiridon should be limited to the misdemeanor context, lacks
support in our law and fails as a matter of logic. Spiridon expressly relied on
Colson, where this court explained that if a felony does not involve moral turpitude
per se, “evidence as to the circumstances of the crime including the actor’s
18
Supra note 2 and infra at III.
19
We acknowledge that our reference in Spiridon to motive and mental
state as “mitigating factors,” invites confusion with analysis under Kersey, and thus
suggest the use of different terminology. See supra pp. 18–19.
21
knowledge and intention [must] be admitted.” 20 755 A.2d at 466; 412 A.2d at
1167.
Alternatively, Disciplinary Counsel argues that regardless of any finding that
Mr. Rohde’s alcoholic blackout precluded him from exercising appropriate
judgment, Mr. Rohde’s culpable mental state was established when he pleaded
guilty and admitted that he “knew or should have known” that his collision with
Ms. Banks had injured her and he left the scene anyway. We disagree. Mr.
Rohde’s guilty plea established the elements for the criminal offense of felony
leaving the scene of an accident. But that plea, which was not inconsistent with the
evidence presented at Mr. Rohde’s disciplinary hearing, 21 compare Tidwell, infra
at 25–26, does not establish that he committed a crime of moral turpitude in this
disciplinary case. See Shorter, 570 A.2d at 765.
20
As we explained in Spiridon, 755 A.2d at 467, this court’s decision in In
re Hopmayer, 625 A.2d 290 (D.C. 1993), is not to the contrary; it holds only that
once a crime has been determined to be one involving moral turpitude, disbarment
is required and Kersey mitigation evidence may not be considered.
21
As the Hearing Committee noted, the prosecutor himself “informed the
court that . . . Respondent was intoxicated ‘to the point that he didn’t know what
happened.’”
22
Additionally, Disciplinary Counsel argues that in order to assess whether
Mr. Rohde acted with moral turpitude, we must look back to his “deliberate”
decisions to drink and to drive drunk when he had alternative means to get home
which resulted in an “entirely foreseeable head-on collision that severely injured an
innocent victim.” We disagree. As explained above, although the moral-turpitude-
on-the-facts inquiry is not limited to the elements of the offense, it is not an open-
ended assessment of respondent’s past behavior, character, or lifestyle.22 Our
22
Our concurring colleague both agrees with this statement, post at 34–35,
and agrees with Disciplinary Counsel that the Board should have considered prior
acts Mr. Rohde took as an untreated alcoholic in assessing whether his crime was
one of moral turpitude on the facts. But our colleague does not explain how
consideration of Mr. Rohde’s prior, uncharged conduct does not entail the open-
ended assessment he agrees is not permitted.
Like our colleague, we agree that we need not in this case define the precise
boundaries of the moral-turpitude-on-the-facts inquiry. But, based on our
precedent, supra note 16, we have no difficulty holding that the Board properly
declined to consider Mr. Rohde’s prior drinking and driving in assessing the moral
turpitude of his leaving the scene of the accident. Our colleague’s hypothetical
scenario contemplating an attorney’s premeditated plan (1) to get blackout drunk,
(2) to use his car as a weapon to collide with others, and (3) then to leave the scene
of any resulting accidents does not persuade us otherwise. Our colleague posits
that because “the circumstances of the blackout in the hypothetical reflect moral
turpitude,” they should be considered in the moral turpitude assessment of the
subsequent commission of the offense of leaving the scene of an accident. We
focus however, not on the circumstances of the blackout, but rather on the
circumstances of the crime of leaving the scene of the accident. If there were
credited evidence that an attorney had carried out a premeditated plan to commit
the crime of leaving the scene of an accident while in a blacked out condition
(assuming the attorney’s premeditation could persist when he was in that
(continued…)
23
focus is bounded by the offense of conviction—here the crime of leaving the scene
of an accident23—and only facts that “fairly bear on the question of moral
turpitude” in the “actual commission” of the offense are relevant. Spiridon, 755
A.2d at 467; cf. Dawkins v. United States, No. 14-CV-919, 2018 WL 3580701 at
*8 (D.C. July 26, 2018) (relying on principles of relevance to impose temporal
limits on the consideration of culpability evidence).
Those facts do not include Mr. Rohde’s uncharged acts of drinking and
driving, either earlier that evening or on prior occasions, as our decision in In re
Tidwell, 831 A.2d 953 (D.C. 2003), another leaving the scene of an accident case
(albeit prosecuted under New York law), confirms. Although in Tidwell we
provided a detailed account of respondent’s drinking history and his visit to a bar
hours before the accident in the “Factual Background” section of our opinion, the
(…continued)
condition), we would consider evidence of such premeditation in assessing the
moral turpitude of that crime. But Disciplinary Counsel in this case never argued
Mr. Rohde’s conduct was premeditated. Instead, Disciplinary Counsel sought to
prove Mr. Rohde committed a crime of moral turpitude because he “knew or
should have known” that he would get into an accident and then leave the scene,
effectively espousing a negligence theory of moral turpitude, which we reject.
23
Mr. Rohde was not convicted in Virginia or the District of driving under
the influence of alcohol, reckless driving, or any other offense with elements
relating to drinking or drinking and driving.
24
focus in our “Moral Turpitude” analysis was on the circumstances relevant to the
commission of the offense of leaving the scene. Specifically, we highlighted “Mr.
Tidwell’s failure to stop his car after he hit Mr. Fruehaf [] with a force that
shattered the right side of the windshield and was loud enough to be heard by
neighbors in their houses” and his “failure to notify the authorities until several
days later.” Id. at 958. Based “[o]n this record” we concluded that “Mr. Tidwell’s
conduct fit[] easily within the definition of moral turpitude that this court has
adopted in Colson and other cases.” Id. We also rejected the respondent’s
subsequent attempt before the Board to show that “he might have been suffering
from an alcoholic-induced blackout” as a belated and weak “effort to deny an
element of the offense which he has already admitted,” Id. at 960, based on the
facts of that case. Just as the evidence in Tidwell supported a conclusion that the
respondent had knowingly acted in a base, vile, or depraved manner when he left
the scene of an accident, the evidence in this case does not. 24
24
Although Mr. Tidwell appeared to urge this court to consider “his broader
history with alcohol,” to defeat a determination of moral turpitude, post at 40, this
court declined to do so. 831 A.2d 958, 959. Specifically, we rejected Mr.
Tidwell’s attempt to rely on a common thread of “alcohol problems,” id., in cases
in which we concluded the respondent had not committed a crime of moral
turpitude: In re Reynolds, 763 A.2d 713 (D.C. 2000), In re Small, 760 A.2d 612
(D.C. 2000), and In re Hoare, 727 A.2d 316 (D.C. 1999). Id. We concluded Mr.
Tidwell’s knowing decision to leave the scene of a vehicular homicide was
(continued…)
25
This is not to say that the comprehensive, totality of the circumstances
analysis Disciplinary Counsel advocates for is never authorized—only that it is not
authorized as part of the moral-turpitude-on-the-facts inquiry. It takes place at the
discretionary sanctions stage, to which we now turn.
III. The Appropriate Sanction
Although we conclude that Mr. Rohde did not commit a crime of moral
turpitude, the fact remains that he collided head-on with Ms. Banks’ car, severely
injuring her and totaling her car; he then left the scene of the collision without
assisting her or otherwise seeking help. Mr. Rohde concedes both that he
committed a “serious crime” within the meaning of D.C. Bar Rule XI, § 10 (b)25
(…continued)
distinguishable from Reynolds because no one had been killed in that case as a
result of the accident, and from Small and Hoare because the respondents in those
cases, unlike Mr. Tidwell, did not leave the scene of the accident. Id. This court’s
rejection of Mr. Tidwell’s argument that his drinking history precluded a finding of
moral turpitude on the facts does not compel our consideration of Mr. Rohde’s
drinking history in this case.
25
D.C. Bar Rule XI, § 10 (d) provides that when an attorney has been found
guilty of a serious crime, including any felony, “[Disciplinary] Counsel shall
(continued…)
26
and that he violated Rule 8.4 (b) of our Rules of Professional Conduct. 26 In light
of this conceded misconduct, this court must consider whether some sanction is
required to “maintain the integrity of the profession, . . . protect the public and the
courts, . . . [and] deter other attorneys from engaging in similar misconduct.” In re
Reback, 513 A.2d at 231.
The Board, like the Hearing Committee, has recommended that Mr. Rohde
be suspended from the practice of law for two years, with a showing of fitness
required for resumption of practice, but that this sanction should be mitigated
pursuant to In re Kersey, 520 A.2d 321 (D.C. 1987), such that his suspension
would be stayed in favor of a three-year term of probation with conditions. During
this time he would not be required to give his clients notice of his probation as
required by D.C. Bar R. XI, § 3 (a)(7). Disciplinary Counsel seeks disbarment.
“Generally speaking, if the Board’s recommended sanction falls within a wide
(…continued)
initiate a formal proceeding in which the sole issue to be determined shall be the
nature of the final discipline to be imposed.”
26
Rule 8.4 (b) states that “[i]t is professional misconduct for a lawyer to . . .
[c]ommit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.” D.C. Rules Professional
Conduct, 8.4 (b).
27
range of acceptable outcomes, it will be adopted and imposed . . . ‘unless to do so
would foster a tendency toward inconsistent dispositions for comparable conduct
or would otherwise be unwarranted.’” In re Schlemmer, 840 A.2d 657, 660 (D.C.
2004) (quoting D.C. Bar Rule XI, § 9 (h)(1)); see also In the Matter of Haupt, 422
A.2d 768, 771 (D.C. 1980) (acknowledging that this court will “respect the
Board’s sense of equity . . . unless that exercise of judgment proves to be
unreasonable”). Examining the totality of the circumstances, including
aggravating and mitigating factors, we adhere to the Board’s recommended
sanction.
We begin our analysis with Disciplinary Counsel’s argument that we should
exercise our discretion to disbar Mr. Rohde because, having engaged in a pattern of
drinking and driving, he made a reprehensible choice to drive drunk with a full
understanding of the potentially devastating consequences. We agree that any
evidence regarding decisions Mr. Rohde made that ultimately led to his crime, his
drinking practices, and his history of accidents is relevant to our totality of the
circumstances analysis.27 And yet, in weighing that evidence, we also consider
27
To the extent Disciplinary Counsel suggests that it was incorrectly
precluded from presenting evidence regarding Mr. Rohde’s conduct and decisions
(continued…)
28
evidence that Mr. Rohde was suffering from a disease, alcoholism, “a hallmark” of
which—as Disciplinary’s Counsel’s own expert agreed—is the “denial of the
seriousness of one’s problem and the potential consequence[] of one’s continuing
to drink.” Accord Tim Wells, When Lawyers Need Help, WASHINGTON LAWYER,
June 2016, https://www.dcbar.org/bar-resources/publications/washington-
lawyer/articles/alcohol-abuse-lawyer-discipline.cfm (transcribing an interview with
then-Disciplinary Counsel Wallace E. “Gene” Shipp, Jr. in which he rebuffed “the
notion that alcoholism is the result of some sort of moral failing,” and
acknowledged that the “scientific research makes [it] clear . . . [that alcoholism is]
a disease and it should be treated as a disease”); see also AMERICAN PSYCHIATRIC
ASSOCIATION, Alcohol Use Disorder, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (5th ed. 2013) (“DSM-5”).
(…continued)
prior to the accident, it has not briefed this argument with sufficient clarity, and we
note that the Board found that
it is undisputed that Respondent drank heavily for several years and suffered
from occasional alcoholic blackouts, including on the evening in question. It
is also undisputed that on the evening in question, Respondent drank
heavily, paid for at least some of his drinks, retrieved his car, and followed
his usual route home before colliding with Ms. Banks.
29
Such evidence is properly considered under Kersey, and we reject
Disciplinary Counsel’s argument that Kersey mitigation may not be considered in a
case where a respondent has been convicted of a felony that is not one of moral
turpitude. This court has previously applied Kersey mitigation in two types of
analogous circumstances: (1) in cases where a respondent has engaged in
uncharged felony-type conduct, see, e.g., In re Temple, 596 A.2d 585, 586–87
(D.C. 1991); and (2) in cases where the misconduct results in a misdemeanor
conviction, In re Soininen, 783 A.2d 619 (D.C. 2001). In light of these prior
applications, we see no “reason in law or logic,” id. at 622, to exclude felonious
conduct that results in a felony conviction. To the contrary, such a limitation
would ignore the animating principle of Kersey—that substance abuse “has a
severe effect on human physiology and behavior,” Kersey, 520 A.2d at 326—and
give undue sway in disciplinary proceedings to the charging decisions of
prosecutors. See Brookens v. United States, 182 A.3d 123, 133 n.17 (D.C. 2018)
(explaining that “disciplinary proceedings . . . are not criminal prosecutions in any
sense”).
To be eligible for Kersey mitigation, Mr. Rohde must establish: (1) by clear
and convincing evidence that he suffered from an alcoholism-related impairment at
30
the time he left the scene of the Virginia accident; (2) by a preponderance of the
evidence that his alcoholism substantially caused him to engage in that
misconduct; and (3) by clear and convincing evidence that he is now substantially
rehabilitated from the effects of the alcoholism. See In re Stanback, 681 A.2d
1109, 1114–15 (D.C. 1996). As our discussion earlier in this opinion makes plain,
the credited evidence satisfies the first two requirements.
This leaves the question of whether Mr. Rohde proved that he is
substantially rehabilitated. We conclude he did. There is no dispute that Mr.
Rohde ceased drinking after the accident, that he sought treatment, and that his
recovery has been “excellent.” It is likewise undisputed that he has sought to help
others similarly situated. Mr. Rohde’s sustained sobriety in the many years that
have passed since his crime is resounding evidence of rehabilitation.
Disciplinary Counsel urges us, however, to consider other “equal flaws in
his moral judgment.” Specifically, Disciplinary Counsel argues that Mr. Rohde
demonstrated “a pattern of denial and dishonesty” both affirmatively (in the
affidavit submitted to this court describing his guilty plea and in a statement made
by Mr. Rohde’s attorney at his sentencing that “this” was “an aberration” on Mr.
31
Rohde’s part) and by omission (in two pro hac vice applications filed by Mr.
Rohde or a member of his firm in which Mr. Rohde failed to acknowledge the
pendency of these disciplinary proceedings against him). Regarding the affidavit
submitted to this court, we disagree that it misdescribed his admissions in his
guilty plea. Regarding the other conduct, we defer to the Board’s reasonable
assessment of its significance. The Board saw no indication that Mr. Rohde or his
counsel sought to mislead the court at his sentencing, given that Mr. Rohde had
already “explained that he was undergoing treatment for alcoholism and described
his drinking habits in detail.” The Board found that the pro hac vice filings were
misleading, but it also found that there was no evidence to support Disciplinary
Counsel’s claim that Mr. Rohde “intended to deceive his firm and acted
dishonestly for personal gain.” The Board further noted that these incidents were
unrelated to the misconduct in question 28 and insufficient to overcome the strong
evidence that Mr. Rohde took concerted, and by all accounts successful, steps to
address the cause of his misconduct: his alcoholism. See Kersey, 520 A.2d at 327
(“[W]hen alcoholism has been a causal factor leading to professional misconduct,
28
Mr. Rohde points out that Disciplinary Counsel early on commenced an
independent disciplinary action based on one of his pro hac vice applications,
which was stayed pending completion of this proceeding. We take no position on
the merits of that separate matter.
32
rehabilitation from that condition will be considered a significant factor in
imposing discipline.”). The Board found that Mr. Rohde “ha[s] continued his law
practice without incident” related to alcohol. We agree that an attorney who
engaged in misconduct as a result of a disability but who no longer poses that
danger to the public should not be punished “simply for punishment’s sake.” In re
Appler, 669 A.2d 731, 740 (D.C. 1995).
Relatedly, we are mindful of the fact that alcohol abuse is a significant
problem among members of the legal profession. One recent study co-sponsored
by the ABA “found that 20 percent of licensed attorneys in the United States
consume alcohol at rates associated with problem drinking,” which is consistent
with prior studies indicating that “lawyers experience alcoholism at approximately
2.5 times the rate for the general population.” When Lawyers Need Help, supra.
As Disciplinary Counsel recently acknowledged, “[i]f we can get a lawyer into
alcohol or drug treatment, or mental health treatment, before there’s a discipline
problem, that creates a better situation for everyone—the lawyers, the clients, and
the discipline system.” Id. In this case, we reaffirm our determination in Kersey
that, even if substance abuse gives rise to a disciplinary problem, treatment and
staying the course of recovery is the optimal outcome and can allow an attorney to
33
keep her job and her professional identity. See 520 A.2d at 327 (“When
alcoholism has been a causal factor leading to professional misconduct,
rehabilitation from that condition will be considered a significant factor in
imposing discipline.”).
Accordingly, we adopt the recommendation of the Board and hereby suspend
respondent Wayne R. Rhode from the practice of law in the District of Columbia
for two years, with a requirement that he show fitness in order to be reinstated; but
stay his suspension in favor of a three-year period of supervised probation on the
conditions that he:
(a) not commit any other disciplinary rule violations;
(b) maintain his sobriety;
(c) be subject to sobriety monitoring;
(d) meet as frequently as necessary to maintain his sobriety with a
representative of the D.C. Bar Lawyer Assistance Program (LAP); and
(e) attend Alcoholics Anonymous as often as he, his LAP representative,
and other involved experts deem necessary.
34
Respondent will not be required to provide notice to his clients of the
probation under D.C. Bar R. XI, § 3 (a) (7).
So ordered.
MCLEESE, Associate Judge, concurring: I agree with the court that we
should adopt both (1) the conclusion of the Board on Professional Responsibility
(Board) that Mr. Rohde’s conviction for leaving the scene of an accident did not
involve moral turpitude and (2) the Board’s recommended sanction. I write
separately because I do not agree with the court’s analysis of the question whether
Mr. Rohde’s conviction involved moral turpitude on the facts. Ante at 15–24.
Although our cases use somewhat varying language to describe the nature of the
inquiry into whether a conviction involved moral turpitude on the facts, I have no
quarrel with the formulation the court emphasizes: the Board must conduct an
“examination of circumstances surrounding commission of the [crime] which fairly
bear on the question of moral turpitude in its actual commission.” In re Spiridon,
755 A.2d 463, 467 (D.C. 2000). As the court notes, ante at 16, that inquiry is
broader than simply examining the elements of the crime. Conversely, as the court
well expresses it, the inquiry “is not an open-ended assessment of respondent’s
35
past behavior, character, or lifestyle.” Ante at 21. Thus, for example, we have said
that the inquiry into whether a crime involved moral turpitude on the facts should
not take into account considerations “such as absence of a previous disciplinary
record and expression of remorse,” because those considerations are “totally
irrelevant to whether a crime involved moral turpitude.” Spiridon, 755 A.2d at
467–68 (internal quotation marks omitted).
Although we thus have a guidepost at each extreme, the language of our
cases does not provide clear guidance about the exact line between those
circumstances that may appropriately be considered in determining whether a
crime involved moral turpitude on the facts and those circumstances that may not.
Most of our cases speak in terms that suggest a broad inquiry. See, e.g., In re
Allen, 27 A.3d 1178, 1184 (D.C. 2011) (“Bar Counsel must show by clear and
convincing evidence that respondent’s conduct, viewed in context, involved moral
turpitude on the facts.”) (emphasis added); In re Powell, 836 A.2d 579, 580 n.1
(D.C. 2003) (“The Committee took into account the facts surrounding respondent’s
plea and found that, . . . in light of the full set of facts . . . , the crime did not
constitute a crime involving moral turpitude.”) (emphasis added); Spiridon, 755
A.2d at 466 (rejecting as unduly narrow approach that permitted “examination
36
solely of the events directly relating to the crime itself, that is, how the crime was
committed”); id. (“[T]he Board was not only permitted but required to hold a
hearing to determine whether respondent’s conduct involved moral turpitude under
all the facts and circumstances found at that hearing.”) (emphasis added); id. at
467 (“We think therefore that [In re McBride, 602 A.2d 626 (D.C. 1992) (en
banc)] permits a broader examination of circumstances surrounding commission of
the [crime] which fairly bear on the question of moral turpitude in its actual
commission, such as motive or mental condition.”) (emphasis added); id. at 469
(referring to “the totality of the facts and circumstances”) (emphasis added).
Although the court disagrees that the language in these cases supports a conclusion
that the inquiry into moral turpitude on the facts is broad, ante at 18 n.16, it seems
to me indisputable that an inquiry into “the full set of facts” or “all the facts and
circumstances” is a broad inquiry.
On the other hand, the language from In re Colson cited by the court, ante at
16–17, does somewhat cryptically suggest a more limited inquiry. 412 A.2d 1160,
1164 (D.C. 1979) (en banc) (“An attorney is subject to disbarment under the statute
for his conviction of a crime involving moral turpitude, not for commission of an
act involving moral turpitude.”) (emphasis added). I do not believe that it is
37
necessary to determine in this case precisely how narrow or broad the inquiry into
moral turpitude on the facts should be. In my view, even taking into account all of
the conduct Disciplinary Counsel relies upon, Mr. Rohde’s conviction for leaving
the scene of an accident did not involve moral turpitude on the facts, given the
Hearing Committee’s conclusions about the role of untreated alcoholism in the
offense.
The court does not take the approach just suggested. Rather, it concludes
that Mr. Rohde’s decision to drink and drive is outside the scope of the permissible
inquiry into moral turpitude on the facts. Ante at 21–24 & n.22. I disagree with
the court’s approach in several respects.
First, I do not understand the distinction the court seems to draw between
Mr. Rohde’s blackout, which the court treats as relevant to moral turpitude, ante at
18–20 & n.17, and the circumstances that caused that blackout, which the court
treats as irrelevant to moral turpitude, ante at 21–24 & n.22. I do not see how one
can sensibly assess whether and how a respondent’s blackout bears on moral
turpitude without considering how the respondent came to black out. On that
point, imagine the following hypothetical scenario. The respondent is not an
38
alcoholic but rather is a violent racist. He decides to get as drunk as possible and
then drive around looking for a victim to run over. Accordingly, he gets extremely
drunk, starts driving, has an accident, and leaves the scene of the accident. At a
Bar-discipline hearing, the respondent introduces evidence, credited by the
factfinder, that he was blackout drunk at the time he had the accident and left the
scene. In my view, the blackout in this hypothetical scenario results from moral
turpitude, rather than reducing moral turpitude. In the present case, by contrast,
Mr. Rohde’s conduct leading up to and during his crime appears to be attributable
to untreated alcoholism. Taking that conduct into account, as I would assume for
current purposes that we must, I conclude that Mr. Rohde’s crime did not involve
moral turpitude on the facts. I thus agree with the court, ante at 21–22 n.22, that
this case is distinguishable from the hypothetical scenario outlined above, because
the circumstances of the blackout in the hypothetical reflect moral turpitude,
whereas the circumstances of the blackout in this case do not. The point of the
hypothetical, though, is that it is not sensible to try to determine whether and how a
blackout bears on moral turpitude without considering why the blackout occurred.
Second, the court suggests that if the inquiry into moral turpitude on the
facts should properly take into account the circumstances that caused Mr. Rohde to
39
black out, then the inquiry must also take into account aspects of respondents’
“past behavior, character, or lifestyle,” including “every action taken or decision
made by a respondent that temporally precedes the commission of the offense.”
Ante at 18 n.16, 21–22 & n.22. That is not so. When determining whether a
respondent’s conduct in committing a crime reflects moral turpitude on the facts,
many aspects of the respondent’s life and prior conduct are obviously not relevant.
To take one of many examples, the fact that a respondent had committed an
unrelated bank robbery five years earlier would surely be irrelevant to the inquiry
into whether leaving the scene of an accident reflected moral turpitude on the facts.
My disagreement with the approach taken by the court is not that the court fails to
approve consideration of every aspect of Mr. Rohde’s prior life. Rather, it is with
the court’s decision to approve consideration of Mr. Rohde’s blackout but to
preclude consideration of circumstances leading to that blackout that are arguably
relevant to whether the blackout reflects moral turpitude.
Third, I fear that the court’s opinion will create confusion for the Hearing
Committees, the Board, and future divisions of this court. Although the court
draws a distinction between the fact of Mr. Rohde’s blackout and the
40
circumstances that caused that blackout, the court does not provide a concrete
articulation or explanation of the basis for that distinction.
Finally, the approach adopted by the court conflicts with the approach this
court took in In re Tidwell, 831 A.2d 953 (D.C. 2003). That case, like this one,
presented the question whether a respondent’s crime of leaving the scene of an
accident involved moral turpitude on the facts. Id. at 957–60. When analyzing
that question, the court in Tidwell did not limit itself to Mr. Tidwell’s mental state
at the time of the crime. Id. To the contrary, the court explicitly considered Mr.
Tidwell’s broader history with alcohol. Id. at 958 (noting Mr. Tidwell “suffered
from [an] alcohol problem[]”); id. at 959 (distinguishing Mr. Tidwell’s situation
from that of respondent in earlier case by pointing out that earlier respondent “did
not have any alcohol problems, nor was he likely to commit a similar act in the
future. The same cannot be said with respect to Mr. Tidwell.”). These passages
from Tidwell are considered parts of the court’s analysis of whether Mr. Tidwell’s
conduct in leaving the scene of an accident involved moral turpitude on the facts.
In my view, the court exceeds its authority by treating as irrelevant circumstances
that the court treated as relevant in Tidwell. See, e.g., Seminole Tribe v. Florida,
517 U.S. 44, 67 (1996) (“As a general rule, the principle of stare decisis directs us
41
to adhere not only to the holdings of our prior cases, but also to their explications
of the governing rules of law.”) (internal quotation marks omitted); see generally
M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (divisions of this court are bound
by prior decisions of court).
For the foregoing reasons, I respectfully concur.