Duncan v. Board of Disciplinary Appeals

PHILLIPS, Chief Justice,

delivered the opinion of the court,

joined by GONZALEZ, HIGHTOWER, GAMMAGE and SPECTOR, Justices.

This is an attorney’s appeal from a decision by the Board of Disciplinary Appeals (“BODA”) to suspend James M. Duncan from the practice of law during the period of his criminal probation resulting from a federal conviction of misprision of felony.¹ We must decide whether misprision of felony is an intentional crime involving moral turpitude per se, which would subject Duncan to compulsory discipline. We hold that misprision of felony is not a crime involving moral turpitude per se. Once this Court determines that a particular crime does not involve moral turpitude per se, the only remaining option is for the Office of Chief Disciplinary Counsel (“OCDC”) to pursue discipline based on the underlying facts of the attorney’s conduct. We therefore remand this case to BODA for further proceedings consistent with this opinion.

In March 1993, Duncan pled guilty to the crime of misprision of felony, which is codified at 18 U.S.C. § 4.² A United States District Court for the Northern District of Texas placed him on probation for a term of four years and ordered him to pay restitution of $156,753 and a fine of $30,000. The OCDC initiated a compulsory discipline proceeding against him pursuant to Tex.R.DisCIPLINARy P. 8.01 (1992), which provides in pertinent part: “When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation ... the Chief Disciplinary Counsel shall initiate a Disciplinary Action seeking compulsory discipline.... Proceedings under this part are not exclusive in that an attorney may be disciplined as a result of the underlying facts.” (emphasis added). “Intentional Crime” is defined as “(1) any Serious Crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary.” Id. 1.06(0) (emphasis added). “Serious Crime,” in turn, is defined as “barratry; any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property” Id. 1.06(U) (emphasis added). BODA found that Duncan was convicted of an intentional crime and suspended his law license for the duration of his criminal probation.

At the compulsory discipline hearing, the OCDC contended that the felony offense of misprision of felony is a crime involving moral turpitude per se. Consequently, the OCDC did not introduce any evidence regarding the underlying facts of the crime that Duncan committed.³ Duncan, through his attorney, agreed that any inquiry into the facts behind Duncan’s conviction was inappropriate. The only evidence presented by either side at the hearing was expert testimony on Duncan’s behalf by Jerry Zunker, former General Counsel of the State Bar of Texas. Zunker opined that misprision of a felony was not a crime of moral turpitude per se. When the OCDC, in cross-examining Zunker, asked certain questions that appeared to inquire into the underlying facts, Duncan successfully objected.

At the conclusion of the hearing, BODA held that misprision of felony involved moral turpitude per se, and therefore suspended Duncan’s license for the remainder of his criminal probation.

At the outset, we note that we review legal conclusions by BODA de novo. In the Matter of Humphreys, 880 S.W.2d 402, 404 (Tex.1994), cert. denied, — U.S. -, 115 S.Ct. 427, 130 L.Ed.2d 340 (1994). Further, the determination of whether a particular crime involves moral turpitude is a question of law. State Bar of Texas v. Heard, 603 S.W.2d 829, 835 (Tex.1980).

In determining whether this crime necessarily involves moral turpitude, we are to consider “the nature of the offense as it bears on the attorney’s moral fitness to continue in the practice of law.” Heard, 603 S.W.2d at 835; Humphreys, 880 S.W.2d at 407. Furthermore, crimes involving moral turpitude are those that involve dishonesty, fraud, deceit, misrepresentation, deliberate violence, or that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. The federal statute outlawing misprision of felony provides:

Misprision of Felony: Whoever having knowledge of the actual commission of a felony cognizable by a court of the United States conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States shall be fined not more than $500 or imprisoned not more than three years, or both.

18 U.S.C. § 4.

Various federal cases have interpreted the elements of misprision of a felony as the following: 1) the principal committed and completed the felony alleged; 2) the defendant had full knowledge of that fact; 3) the defendant failed to notify the authorities; and 4) the defendant took an affirmative step to conceal the crime. See, e.g., U.S. v. Ciambrone, 750 F.2d 1416, 1417 (9th Cir.1984); United States v. Baez, 732 F.2d 780, 782 (10th Cir 1984).

The statute itself, however, does not define the word “conceal.” Black’s Law Dio-tionary defines “conceal” as follows:

To hide, secrete, or withhold from the knowledge of others. To withdraw from observation; to withhold from utterance or declaration; to cover or keep from sight. To hide or withdraw from observation, cover or keep from sight, or prevent discovery of.

Blaok’s Law Dictionary 261 (5th ed. 1979). A literal reading of the misprision of felony statute leaves open the possibility that one could be prosecuted for having knowledge of the commission of a felony, which one willfully withholds from investigating authorities because that knowledge was obtained under the attorney-client privilege. Because a conviction for misprision of felony could conceivably be based upon an attorney’s refusal to divulge privileged information, we hold that it does not involve moral turpitude per se.

While the willful concealment of non-confidential information would involve moral turpitude, the refusal to divulge privileged information is an entirely different matter. A lawyer has a solemn obligation not to reveal privileged and other confidential client information, except as permitted or required in certain limited circumstances as provided in the rules. See generally TexDisCIPLINARY R.Peof.Conduct Rule 1.05.

Some federal courts have held that mere silence is insufficient to satisfy the elements of misprision of felony. See United States v. Warters, 885 F.2d 1266, 1275 (5th Cir.1989). The statute by its terms is not so limited, however, and not all convictions appear to have met this standard. See In Re Morris, 164 Ariz. 391, 793 P.2d 544 (1990).⁴ If a conviction were to occur under such circumstances, the attorney should not be subject to compulsory discipline for asserting a privilege he or she is bound to honor. As Tex.R.Civ.Evid. 503(b) states: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.”⁵ Our rules recognize that our system of justice relies on a client’s privilege to speak frankly and candidly with his or her attorney. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976).⁶

Texas Rule of Disciplinary Procedure 8.01 allows the OCDC to pursue two different avenues of discipline. If the attorney is convicted of an “Intentional Crime,” then the OCDC may initiate compulsory discipline. Otherwise, the attorney “may be disciplined as a result of the underlying facts.” Id.

In these circumstances, BODA cannot determine whether Duncan committed an intentional crime without at least reviewing part or all of the underlying criminal proceeding, perhaps conducting a de novo hearing. Allowing such a review would impair, or in some cases destroy, the summary nature of the compulsory discipline procedure. As we stated in Humphreys, “compulsory discipline for an Intentional Crime turns solely on the validity of the record of conviction, the nature of the sentence, and the factual determination that the Respondent is the same person as the party adjudicated guilty.” Humphreys, 880 S.W.2d at 406. Since misprision of felony does not involve moral turpitude per se, BODA is precluded from further reviewing the facts in the record to determine whether the attorney engaged in a crime involving moral turpitude.

For these reasons, we hold that Duncan is not subject to compulsory discipline. We therefore reverse BODA’s order suspending Duncan from the practice of law. We remand this case to BODA for further proceedings consistent with this opinion. Our holding does not preclude the OCDC from pursuing discipline based on the general underlying facts of the attorney’s conduct.

1 . Duncan commenced this appeal pursuant to Tex.R.Discipunary P. 7.11 (1992), which provides that an appeal from a determination by the Board of Disciplinary Appeals shall be to the Supreme Court. By order of February 17, 1994, we granted Duncan’s motion to stay suspension pending this appeal.

2 . A misprision of felony is not a crime under the Texas Penal Code, nor has it been incorporated into the Model Penal Code. See generally Gerard E. Lynch, The Lawyer as Informer, 1986 Duke L.J. 491, 519-22 (1986) (expressing doubt whether the crime of misprision of felony has a meaningful existence).

3 . Under Tex.R.Discipunary P. Rule 8.02, in a compulsory discipline action, the record of conviction is conclusive evidence of the attorney’s guilt. There is no question as to the attorney’s conduct or the satisfaction of all the elements required in the crime. The only question in this case is whether the elements of misprision of felony constitute moral turpitude.

4 . Morris was convicted of misprision of felony even though he informed his client that its conduct would be illegal and terminated the attorney-client relationship. The Arizona Supreme Court stated that Morris "did not affirmatively conceal his former client's offense from the authorities. Rather, he failed to take affirmative steps to report the offense.” 793 P.2d at 546. Under its rules, Arizona was required to discipline every attorney convicted of a felony. Texas, however, requires discipline only of "Intentional Crimes.” Under our standard, if the facts were as explained in the opinion, Morris would not have been subject to compulsory discipline.

5 . Federal Rule of Evidence 501 similarly states a client's privilege to refuse to discuss confidential communications made with the attorney.

6 . It is important to this analysis to distinguish misprision from laws punishing accessories after the fact. See, e.g., 18 U.S.C. § 3. Unlike an accessory after the fact, a person commits misprision even "without giving any degree of maintenance to the felon.” United States v. Perlstein, 126 F.2d 789, 798 (3d Cir.1942), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942). Also, misprision requires the underlying felony to be complete. United States v. Hodges, 566 F.2d 674, 675 (9th Cir.1977). It is therefore distinguishable from the instance where an attorney must disclose client confidences "if it is likely" that the client will cause death or substantial bodily harm to a person, see Tex Disciplinary R.Prof.Conduct 1.05(e), or circumstances where the crime-fraud exception to the attorney-client privilege would apply, Tex.R.Cr.Evid. 503(d)(1). In addition, while a refusal to give any statement might satisfy the last element of misprision, it is different than perjury, which requires a false statement. Compare 18 U.S.C. § 4 (misprision) with 18 U.S.C. §§ 1621, 1623 (perjury.)