Kentucky Supreme Court Suggests Attorney Defending Against Ethics Complaint May Demand His Rights Under 5th. Amendment Not To Incriminate Himself

Kentucky Bar Ass’n v. Rorrer, 222 S.W.3d 223 (Ky., 2007)
Rorrer poses a more difficult question on his conviction for failing to respond to the KBA’s request for information. Although his criminal conviction had been
finalized, Rorrer was in the process of appealing his sentence during much of the attorney discipline process. And Rorrer’s response to the charges against
him alleged that he did not answer the initial complaint because he wanted to exercise his Fifth Amendment right to avoid self-incrimination. But Rorrer did
not raise this self-incrimination argument until after the Inquiry Commission had issued the charges.

Obviously, each attorney is obligated to respond to the KBA’s lawful request for information involved in a disciplinary investigation.12 But
the Fifth Amendment guarantees each person a right to avoid self-incrimination.
13 In certain cases, therefore, there is a conflict between an attorney’s obligation
under SCR 3.130(8.1)(b) to respond to a lawful request for information in an attorney discipline matter and the attorney’s constitutional right to avoid
self-incrimination.

Ideally, Rorrer should have responded to the Inquiry Commission’s initial complaint by simply stating that he was not able to provide the requested information
because he was asserting his Fifth Amendment privilege against self-incrimination.

Such a response should have precluded a later charge that his non-cooperation was a violation of SCR 3.130(8.1)(b). But Rorrer said nothing.

Generally, a person’s Fifth Amendment right to avoid self-incrimination is not self-executing, meaning it must be affirmatively claimed.14 Of
course, there are exceptions to that general rule, such as in situations where the invocation of the privilege would lead to potential penalties sufficient to
force self-incrimination.15

Although we question whether the KBA’s request for materials regarding an allegation of misconduct at a time where Rorrer’s conviction was final and only his period of
incarceration remained in flux falls within the “classic penalty situation”16 exception, we need not definitively rule on [222 S.W.3d 229] that issue since Rorrer’s criminal misconduct standing alone warrants disbarment, regardless of
whether his failure to respond to the complaint is, under the unique facts of this case, a violation of SCR 3.130(8.1)(b).17

See full text of case:

 

222
S.W.3d 223

KENTUCKY
BAR ASSOCIATION, Movant,

v.

George T. RORRER III, Respondent.
No.
2006-SC-000603-KB.

Supreme
Court of Kentucky.

May
24, 2007.

[222
S.W.3d 224]
OPINION
AND ORDER

The
Board of Governors of the Kentucky Bar Association has recommended to this
Court that George T. Rorrer III, whose bar roster address is 500 W.
Jefferson Street, Suite 2000; Louisville, Kentucky 40202, be permanently
disbarred from the practice of law. We granted review in order to determine
whether disbarment is the appropriate penalty for Rorrer’s misconduct.
After examining the parties’ briefs and the applicable law, we conclude
that it is.
[222
S.W.3d 225]
In
December 1999, Rorrer was indicted in the United States District Court for
the Western District of Kentucky for the offense of conspiracy to conduct a
criminal financial transaction affecting foreign and interstate commerce,
an offense commonly called money laundering. According to the indictment,
between September 1998 and July 1999, Rorrer and John Caporale, Rorrer’s
client, executed a false construction contract calling for the payment of
$34,000 to or on behalf of JOHN E. CAPORALE for remodeling work to be done,
when in fact JOHN E. CAPORALE, aided and abetted by GEORGE T. RORRER, his
attorney, made a cash loan of $29,000 to another to be repaid in a single
payment of $34,000, which cash loan involved the proceeds of a specified
unlawful activity, that is distribution of controlled substances in
violation of Title 21, United States Code, Section 841(a)(1), knowing that
the transaction was designed in whole and in part to conceal and disguise
the nature, source, ownership, and control of the proceeds of said
specified unlawful activity and that while conducting and attempting to
conduct such financial transaction knew that the property involved in the
financial transaction, that is funds in the amount of $29,000, represented
the proceeds of some form of unlawful activity.’1
In
July 2000, a jury found Rorrer guilty of conspiracy to commit the crime of
money laundering as charged in the indictment. Thus, in September 2000, we
issued an order temporarily suspending Rorrer’s license to practice law.2 In
January 2001, Rorrer was sentenced to thirty-seven months’ imprisonment.
Rorrer appealed, and the United States filed a cross-appeal claiming that
Rorrer’s sentence should have been increased because he used his special
skills as an attorney to further the conspiracy.
In
May 2003, the United States Court of Appeals for the Sixth Circuit affirmed
Rorrer’s conviction and otherwise denied his claims for relief, except that
the court found that (1) the record did not clearly state whether the trial
court had afforded Rorrer an opportunity to allocute before imposition of
sentence, (2) Rorrer’s sentence should have been subject to enhancement due
to Rorrer’s use of a special skill as a lawyer in furthering the criminal
purpose of the conspiracy,3
and (3) the trial court erred when it reduced Rorrer’s sentence for being a
minor participant in the conspiracy.4
Thus, Rorrer’s conviction was affirmed; but the case was remanded
[222
S.W.3d 226]
to
the trial court with instructions to hold a new sentencing hearing.
In
November 2003, the trial court re-sentenced Rorrer to fifty-seven months’
imprisonment. Rorrer again appealed his sentence to the Sixth Circuit. In
June 2004, while Rorrer’s second appeal was pending before the Sixth
Circuit, the KBA authorized the Inquiry Commission to initiate an
investigation of Rorrer due to his criminal convictions. Rorrer was served
with a copy of that Inquiry Commission complaint while incarcerated. Rorrer
did not respond to the complaint, even after the Office of Bar Counsel sent
him a letter warning him of the possible consequences if he failed to
respond.
In
October 2004, while Rorrer’s second appeal was pending, the Inquiry
Commission issued a three-count charge against Rorrer.

Count I charged Rorrer with violating [Kentucky Supreme Court Rule] SCR
3.130(8.3)(13), which states that a lawyer commits professional misconduct
if he “[c]ommit[s] a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness[,] or fitness as a lawyer in other
respects”;

Count II charged Rorrer with violating SCR 3.130(8.3)(c), which provides
that a lawyer commits professional misconduct if he “[e]ngage[s] in
conduct involving dishonesty, fraud, deceit[,] or misrepresentation”;
and

Count III charged Rorrer with violating
SCR 3.130(8.1)(b), which states that a lawyer shall not “knowingly
fail to respond to a lawful demand for information from an admissions or
disciplinary authority[.]“

While
still in jail, Rorrer filed a response to the charge in November 2004. In
his response, Rorrer admitted that he had been convicted of conspiracy to
commit money laundering in federal court. But he denied violating SCR
3.130(8.3)(b) and (e); and he denied having failed to respond to a lawful
demand for information from the KBA because his conviction was “still
under appeal and, therefore, not final pursuant to 18 U.S.C. § 3742 and
United States v. Clark, 110 F.3d 15 (6th Cir.1997)
… To do so
[i.e., respond to the charge] might possibly force Rorrer to waive his
Fifth Amendment rights against self-incrimination under the United States
Constitution.”
Eventually,
a trial commissioner was appointed who, in September 2005, conducted an
evidentiary hearing on the charges against Rorrer. In October 2005, the
commissioner issued a report recommending that Rorrer be found guilty of
all three counts and, consequently, disbarred. Both Rorrer and the KBA
filed separate notices of appeal.5
Meanwhile,
in December 2005, the Sixth Circuit again vacated Rorrer’s sentence due to
the United States Supreme Court’s recent decision invalidating the
previously mandatory nature of the federal sentencing guidelines.6
The record before us does not show what, if any, subsequent developments
transpired in Rorrer’s federal criminal case.
In
May 2006, the Board heard oral arguments on the appeals from the trial
commissioner’s recommendations. In August
[222
S.W.3d 227]
2006,
the Board issued its findings of fact, conclusions of law, and
recommendation, in which it adopted, by a vote of 11-3, the trial
commissioner’s report and recommendations.
In
December 2006, a majority of this Court voted to review the Board’s
decision under SCR 3.370(9). Both Rorrer and the KBA filed briefs outlining
their respective positions. After examining those briefs and the applicable
law, we conclude that disbarment is a proper punishment for Rorrer’s
serious professional misconduct.
The
crux of this case is not whether Rorrer violated SCR 3.130(8.3)(b). It is
uncontested that Rorrer was convicted of the felony offense of conspiracy
to commit money laundering in federal court. Although much legal wrangling
has ensued over Rorrer’s sentence, Rorrer’s conviction was upheld on
appeal. Thus, it is clear that Rorrer was convicted of a criminal offense
which “reflect[ed] adversely on [his] … honesty, trustworthiness[,]
or fitness as a lawyer[.]“7
Furthermore,
Rorrer’s contention that he cannot be disciplined because the KBA failed to
prove the exact role he played in the money-laundering conspiracy is
without merit. Unlike the prosecution in a criminal case, the Kentucky Bar
Association is not an agency whose purpose is to prosecute criminal
offenses. Attorney discipline matters are not fresh opportunities for
attorneys who have been convicted of criminal offenses to re-litigate the
merits of their criminal convictions.8
Accordingly, in an attorney discipline matter, the KBA is not required to
prove conclusively the precise and detailed facts that led to the
attorney’s criminal conviction. To the contrary, the mere fact that an
attorney, such as Rorrer, has been convicted of a felony offense, such as conspiracy
to launder money, “forecloses further inquiry into the issue of
respondent’s guilt or innocence of the [criminal] offense.”9 So
we conclude that Rorrer is clearly guilty of violating SCR 3.130(8.3)(b),
based upon his conviction in the United States District Court for the
Western District of Kentucky for the offense of conspiracy to launder
money.
Likewise,
we conclude that Rorrer is also guilty of violating SCR 3.130(8.3)(c). We
utterly reject Rorrer’s argument that his conviction for conspiracy to launder
drug money is not a crime involving dishonesty. To the contrary, we
conclude such a conviction is clear evidence that Rorrer engaged in conduct
“involving dishonesty, fraud, deceit[,] or misrepresentation.”10
According to the Sixth Circuit, Rorrer instigated the actions leading to
the money laundering conspiracy and used his skills as an attorney to draft
a fictitious
[222
S.W.3d 228]
contract
to further that conspiracy.11
Obviously, Rorrer’s criminal conduct inherently involved dishonesty, fraud,
and/or deceit.
Rorrer poses a more difficult question on his conviction for
failing to respond to the KBA’s request for information. Although his
criminal conviction had been finalized, Rorrer was in the process of
appealing his sentence during much of the attorney discipline process. And
Rorrer’s response to the charges against him alleged that he did not answer
the initial complaint because he wanted to exercise his Fifth Amendment
right to avoid self-incrimination. But Rorrer did not raise this self-incrimination
argument until after the Inquiry Commission had issued the charges.

Obviously, each attorney is obligated to respond to the
KBA’s lawful request for information involved in a disciplinary
investigation.
12 But the Fifth Amendment
guarantees each person a right to avoid self-incrimination.
13 In certain cases,
therefore, there is a conflict between an attorney’s obligation under SCR
3.130(8.1)(b) to respond to a lawful request for information in an attorney
discipline matter and the attorney’s constitutional right to avoid
self-incrimination.

Ideally,
Rorrer should have responded to the
Inquiry Commission’s initial complaint by simply stating that he was not
able to provide the requested information because he was asserting his
Fifth Amendment privilege against self-incrimination.
Such a response
should have precluded a later charge that his non-cooperation was a
violation of SCR 3.130(8.1)(b). But Rorrer said nothing.
Generally, a person’s Fifth Amendment right to
avoid self-incrimination is not self-executing, meaning it must be
affirmatively claimed.
14 Of
course, there are exceptions to that general rule, such as in situations
where the invocation of the privilege would lead to potential penalties
sufficient to force self-incrimination.15
Although we question whether the KBA’s request for materials regarding an
allegation of misconduct at a time where Rorrer’s conviction was final and
only his period of incarceration remained in flux falls within the
“classic penalty situation”16
exception, we need not definitively rule on
[222
S.W.3d 229]
that
issue since Rorrer’s criminal misconduct standing alone warrants
disbarment, regardless of whether his failure to respond to the complaint
is, under the unique facts of this case, a violation of SCR 3.130(8.1)(b).17
Thus,
we now turn to the heart of this matter: what sanction is appropriate for
Rorrer’s criminal misconduct? Both Rorrer and the KBA discuss prior
precedent, which each contends should guide our decision. Obviously, each
case involving attorney discipline is factually unique and, thus, may be
distinguished from the case at hand. However, our precedent is crystal
clear: we treat criminal financial misconduct by attorneys very seriously;
and we have previously found that disbarment was appropriate for numerous
attorneys who had committed criminal offenses involving dishonesty in
financial matters.18 Thus, Rorrer’s
argument to the contrary notwithstanding, disbarment is not a
disproportionate penalty for his criminal misconduct.
Though
he continues to maintain his innocence, it is uncontested that Rorrer was
convicted of a serious felony offense in federal court and that his
conviction was affirmed on appeal. Furthermore, Rorrer’s criminal conduct
involved using his professional skills to further a conspiracy involving
his client and the laundering, or attempted laundering, of drug money.
Obviously, such serious criminal conduct brings dishonor to both Rorrer and
to the entire bench and bar.19
Thus, we believe
[222
S.W.3d 230]
that
Rorrer’s criminal misconduct is sufficiently serious as to warrant
permanent disbarment.20
ACCORDINGLY,
IT IS HEREBY ORDERED THAT:
(1)
Respondent, George T. Rorrer III, is permanently disbarred from the
practice of law;
(2)
In accordance with SCR 3.450, Rorrer is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being
$1,501.16, for which execution may issue from this Court upon finality of
this Opinion and Order; and
(3)
Pursuant to SCR 3.390, Rorrer shall, within ten (10) days from the entry of
this Opinion and Order, notify all clients, in writing, of his inability to
represent them; notify, in writing, all courts in which he has matters
pending of his disbarment from the practice of law; and furnish copies of
all letters of notice to the Executive Director of the Kentucky Bar
Association. Furthermore, to the extent possible, Rorrer shall immediately
cancel and cease any advertising activities in which he is engaged.
All
sitting. All concur.
ENTERED:
May 24, 2007.
/s/ Joseph
E. Lambert
Chief
Justice
—————
Notes:
1. See
also Kentucky
Bar Association v. Rorrer,

28 S.W.3d 308 (Ky.2000)
.
2. Id.
3. See
United States v. Robertson,
67 Fed.Appx. 257, 273 (6th Cir.2003)
(“We find that the district court acted contrary to the manifest
weight of the evidence in holding that Rorrer used no special skill. It is
apparent that lawyering is a special skill, and Rorrer used that skill in
accomplishing this transaction when he brought the parties together,
recommended that they launder the money via a false construction contract,
drew up that contract, and recommended to Hawkins that she deposit the
money in small amounts to conceal the transaction from the IRS.”).
4. Id.
at 272 (“The court’s conclusion appears to lack a foundation, however,
given that Rorrer, far from being less culpable in the money laundering
than the other participants, was in fact the central figure in the
operation: he instigated the transaction by connecting Hawkins and
Caporale; he facilitated it by writing a phony contract; and he offered his
own office space to complete the transaction. All that Caporale had to do
was to walk in with the money, and sign on the dotted line. We conclude
that the district court clearly erred in granting a two-level decrease for
being a minimal participant.”).
5.
Apparently, the Office of Bar Counsel appealed “for the purpose of
permitting the Board [of Bar Governors] to review the entire case, inasmuch
as it [the Office of Bar Counsel] agreed with the Trial Commissioner’s
ruling.”
6. See
United States v. Rorrer,
161 Fed.Appx. 518 (6th Cir.2005) (relying upon
United States v. Booker, 543 U.S. 220
, 125
S.Ct. 738
, 160
L.Ed.2d 621 (2005)
).
7.
SCR 3.130(8.3)(b).
8. Cf.
Marsh
v. Kentucky Bar Ass’n,

28 S.W.3d 859, 860 (Ky.2000)
(“The Kentucky Bar Association does
not object to the Movant’s motion to resign, but does object to the terms
of the disbarment. The Kentucky Bar Association requests that the order
accepting the resignation state that the Movant committed the unethical and
unprofessional acts as charged by the Inquiry Tribunal. Marsh, however,
does not acknowledge his guilt, as he asserts in his motion that he `has no
knowledge or memory of the criminal action.’ Nonetheless, Marsh was
convicted beyond a reasonable doubt by a jury. Such a standard of proof is
much higher than that of the civil standard, preponderance of the evidence.
As such, his criminal conviction is conclusive proof of his guilt for the
purposes of our proceedings.
“) (emphasis added).
9.
Kentucky State Bar Ass’n v. Lester, 437 S.W.2d 958, 959 (Ky.1968)
.
See also Kentucky
Bar Ass’n v. Horn,

4 S.W.3d 135, 137 (Ky.1999)
.
10.
SCR 3.130(8.3)(c).
11.
See Robertson, 67 Fed.Appx. at 272-73 (“Rorrer, far from being
less culpable in the money laundering than the other participants, was in
fact the central figure in the operation: he instigated the transaction by
connecting Hawkins and Caporale; he facilitated it by writing a phony
contract; and he offered his own office space to complete the
transaction…. It is apparent that lawyering is a special skill, and
Rorrer used that skill in accomplishing this transaction when he brought
the parties together, recommended that they launder the money via a false
construction contract, drew up that contract, and recommended to Hawkins
that she deposit the money in small amounts to conceal the transaction from
the IRS.”).
12.
See SCR 3.130(8.1)(b).
13.
See also Kentucky Const. § 11 (“In all criminal prosecutions
the accused … cannot be compelled to give evidence against
himself[.]“).
14.
See generally 81 Am.Jur.2d Witnesses § 112 (2007).
15.
See, e.g., State
v. Fuller,

276 Mont. 155
, 915 P.2d 809, 812 (1996) (“There is an exception,
however, to the general rule that a defendant must affirmatively invoke the
privilege in order to enjoy its protections. Failure to invoke the
privilege does not preclude the benefit if the defendant is placed in a
situation where he is not free to admit, deny, or refuse to answer.”)
(citing Minnesota
v. Murphy,

465 U.S. 420, 429
, 104
S.Ct. 1136
, 79
L.Ed.2d 409 (1984)
) (internal quotation marks omitted).
16.
Minnesota, 465 U.S. at 435, 104
S.Ct. 1136
.
17.
Such a conclusion is in accordance with the trial commissioner’s report, in
which the commissioner found that Rorrer did violate SCR 3.130(8.1)(b), but
did not “sanction Mr. Rorrer for failing to testify in a way which
might be contrary to his right against self-incrimination while the
sentencing portion of his case is still pending. (However, it should be
noted that at no time at the hearing did Mr. Rorrer attempt to invoke his
right against self-incrimination.)”
18.
See, e.g., Kentucky
Bar Ass’n v. Tanner,

152 S.W.3d 875 (Ky.2005)
(permanent disbarment for attorney convicted
of embezzlement);
Kentucky Bar Ass’n v. Layton, 97 S.W.3d 452 (Ky.2003)
(permanent
disbarment for attorney convicted of theft by failure to make required
disposition involving wrongful conversion of funds from attorney’s Master
Commissioner’s account);
Caudill v. Kentucky Bar Ass’n, 155 S.W.3d 725 (Ky. 2005)
(accepting
attorney’s resignation under terms of permanent disbarment when attorney
pleaded guilty to embezzlement and theft by failure to make required
disposition);
Kentucky Bar Ass’n v. Steiner, 157 S.W.3d 209 (Ky.2005)

(disbarring attorney who misappropriated client funds for his own use,
despite attorney’s lack of previous disciplinary history and claim of
mental illness);
Dickey v. Kentucky Bar Ass’n, 98 S.W.3d 864 (Ky.2003)
(approving
attorney’s motion to withdraw under terms of permanent disbarment when
attorney had pleaded guilty to conspiracy to commit securities fraud);
Kentucky Bar Ass’n v. Matthews, 131 S.W.3d 744 (Ky.2004)

(permanently disbarring attorney convicted of, inter alia,
conspiracy to defraud a financial institution).
19.
See Kentucky State Bar Ass’n v. Vincent, 537 S.W.2d 171, 173
(Ky.1976)
(“It is beyond cavil that an attorney who is
convicted of an offense involving moral turpitude, or who is convicted of
an intentional and serious misdemeanor, or who is convicted of a felony,
is guilty of such conduct as is calculated to bring the bench and bar into
disrepute.
Respondent was permitted, without limitation, to fully
indulge himself in the introduction of evidence to support his position in
his effort to build up and make realistic his claim of extenuating
circumstances. He is an officer of the court [ (Kentucky
State Bar Association v. Taylor,

482 S.W.2d 574 (Ky.1972)
)], and it is his duty—yes, even more so, it is
his responsibility—to conduct his personal and professional life in a
manner as to be above reproach. Is this too much to ask of any attorney? We
think not. Other than one’s own confidante, no person occupies such close
relationship to the general public as do the members of the legal
profession. It is the attorney to whom the intimacies of family relations
are confided; it is the attorney who is entrusted with advising as to the
management and disposition of the family estate; it is the attorney who is
entrusted with the protection of our constitutional and statutory rights.
Such a burden resting upon the members of the legal profession must not be
taken lightly.”) (Emphasis added.).
20.
Rorrer contends that in the event of disbarment, he is entitled to avail
himself of the provisions of former SCR 3.520, which governed reinstatement
in case of disbarment. Rorrer contends that SCR 3.520, which was deleted in
October 1998, applies to him because his alleged misconduct occurred in
September 1998, prior to the rule’s deletion. However, the indictment
charges that Rorrer’s misconduct occurred from September 1998 through July
1999; and Rorrer has pointed to nothing in the record to conclusively show
that all of his misconduct occurred prior to SCR 3.520′s deletion.
Furthermore, the rule was deleted over one year prior to Rorrer’s
indictment, nearly two years prior to Rorrer’s conviction, nearly five
years prior to the issuance of the Sixth Circuit’s opinion affirming
Rorrer’s conviction, approximately six years prior to the issuance of the
charge against Rorrer by the Inquiry Commission, and over eight years prior
to the issuance of this opinion and order. Thus, we strongly question
whether Rorrer is eligible for reinstatement pursuant to the long-deleted
SCR 3.520. However, we express no definitive answer on this subject as we
will not offer a hypothetical ruling on an as-yet unfilled hypothetical
motion.

 

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