By now most brokers and compliance departments should be aware
that a broker becomes statutorily disqualified from associating with
a FINRA member firm if convicted of a felony. They should also know
by now that it doesn't matter if that conviction has nothing to do
with moral turpitude or finances, such as a felony driving while
intoxicated conviction. But what many may not realize is that, based
upon “guidance” from the SEC, FINRA considers a mere plea of
guilty—which is not a conviction under state or federal
law—to be a conviction for purposes of statutory disqualifications.
So, for example, even if you qualify for a prosecutorial diversion
program in which you are never convicted if you satisfy
certain probating terms, FINRA is still going to conclude you were
convicted if you pled guilty in order to qualify for that program.
The genesis of what some might consider an absurdity lies in the
fact that the 1934 Exchange Act does not define the term “convicted”
in Section 3(a)(39) when setting forth those events which trigger a
disqualification. Now, most attorneys understand that each and every
word in a statute need not be defined, particularly if amenable to
common understanding. Ironically, the FINRA By-laws also use, but
fail to define, the term. So back in 1992, the SEC instructed the
NASD to look to the definition of “convicted” in the 1940
Advisor's Act (“The Lederer Letter”).
And herein lies the problem for the unwitting broker or criminal
defense attorney that thinks one is only “convicted” when one is
sentenced and a judgment of conviction is entered: The 1940 Act
includes “a plea of guilty” in the definition of “convicted.”
There are, however, situations in which it is arguably unclear as to
whether a conviction exists under even this expansive definition
because the court might refrain from making a finding of guilt
pending a probationary period. The SEC concluded that in such
situations a person is convicted until the probationary period is
completed. That's right folks—you can actually become
“un-convicted!”
The SEC addressed this critical semantic issue again in 2000 in a
letter to the NYSE (“The Germino Letter”). In that situation,
the SEC looked to California law regarding a first-time drug offender
program. In that instance, the SEC concluded that the defendant was
not convicted because, although he pled guilty, the court did
not “make a finding of guilt or accept the plea of guilty.”
Confused yet?
For the most recent review of the nuances and history at issue
here, take a look at the National Adjudicatory Council's Opinion in
SD Decision No. 04017. In that case the Council looked at the CWOF
(convicted without a finding) procedure under Massachusetts law and
concluded that the MC-400 application subject in that matter had not
in fact been convicted, so the broker should not have been
disqualified in the first place! Belated good news for her for sure.
In Puello v. Bureau of Citizenship and Immigration Services,
511 F.3d 324 (2nd. Cir. 2007), the United States Court of
Appeals for the Second Circuit evaluated the meaning of the term
“conviction” in the Immigration and Nationality Act (“INS”).
In doing so, it noted that “well-established principles of
(statutory) construction dictate that statutory analysis necessarily
begins with the 'plain meaning' of a law's text and, absent
ambiguity, will generally end there.” Id. At 327. In 1996,
Congress amended the INS to include a definition of conviction that
included, in addition to a formal judgment of guilt, “a plea of
guilty...or [admission] of sufficient facts to warrant a finding of
guilt.” Id. At 328. The court went on to explain that a
conviction occurs when the court adjudicates guilt and imposes a
sentence. Id. At 329. “The statutory definition of
“conviction” speaks of a judgment 'entered by a court' the common
understanding of which involves the entry on the docket of the
documents envisioned in Rule 32(K)(1) and not a guilty plea alone.
Id. The critical point here is that, unlike the INS, the
Exchange Act does not involve any ambiguity as to “conviction”
and it does not include a definition of conviction that includes
anything less than a formal adjudication of guilt. Moreover, the
SEC's suggestion that one looks to the 1940 Act to gain insight as to
what a different Congress intended by the term “conviction” to
mean when it passed the Exchange Act six years earlier is
simply absurd. And the Second Circuit certainly agrees with this
author's opinion on FINRA's current interpretation of “conviction”
for a statutory disqualification: “ Construing a guilty plea alone
as a 'formal judgment of guilt' makes little sense in the context of
the definition of 'conviction' as a whole.” Id. “Construing
a guilty plea alone to constitute a 'conviction' would be a
significant departure from normal criminal procedure.” Id.
At 330. And best of all: “ the statutory definition appears to
lead to the bizarre result that a withdrawn guilty plea would still
be a conviction.” Id. And there is no ambiguity in the
Exchange Act that justifies a statutory interpretation by the SEC
that directs FINRA to give a “bizarre” interpretation to what a
“conviction” is for the purposes of statutory disqualifications.
To borrow the words of Judge Katzmann: “a statute should be
interpreted in a way that avoids absurd results.” Id. In
sum, if Congress wanted a mere guilty plea to somehow be a
“conviction” for purposes of the Exchange Act, it demonstrated
its ability to do so when it so amended the INS.
The problem this author has confronted recently is that FINRA may
send your Member firm a notice requiring them to file a MC-400
application or U-5 you without fully analyzing the state law at issue
or exactly whether or not the court made the requisite finding
of guilt (as opposed to the defendant merely admitting facts
sufficient to allow the entry of a finding of guilt).
Moreover, a defendant might plead guilty to the underlying offense
without pleading guilty and the court finding
sufficient facts as to a separate statute that enhances the
misdemeanor to a disqualifying felony.
So what is the lesson here? Consult with a securities attorney
and make sure you are both aware of and have a very clear record of
the procedure before the court when pleading guilty as part of a
diversion program lest your effort to avoid a conviction and save
your career prove futile in the eyes of FINRA. Food for thought.
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