In re Anonymous No. 3 D.B. 89

CONCURRING AND DISSENTING OPINION

SCHILLER, Member,

June 11, 1991 — I concur with the board in its conclusion of law. However, I disagree with the board’s recommendation of a five-year suspension. I believe respondent should be disbarred retroactive to January 9, 1989, the date on which the Supreme Court of Pennsylvania placed respondent on interim suspension pursuant to Rule 214(d), Pa.R.D.E.

DISCUSSION

This is another case of a public prosecutor or, in this case, a respondent about to be a public prosecutor, who was guilty of possession of cocaine with intent to deliver.

Respondent had a long and alarming history of drug and alcohol abuse predating his admission to the bar. One must wonder how such individuals could be screened in the future. Nevertheless, the respondent knew for years of his problems.

CONCLUSION

I direct the attention of the board to the opinion of the Supreme Court in Office of Disciplinary Counsel v. Simon, 510 Pa. 312, 323, 507 A.2d 1215, 1221 (1986):

“The Code of Professional Responsibility embodies the standards for attorneys practicing law in this Commonwealth so that the public is protected and the integrity of the bar preserved. Respondent has flaunted those stand*499ards and violated the Code of Professional Responsibility. There is no excuse, justification or mitigation that can overcome the seriousness of the crime committed by respondent.”

The above-cited case dealt with an attorney involved in the sale of cocaine. Likewise, I believe this language applies to the respondent in the instant matter. Respondent has flaunted the standards embodied in the Code of Professional Responsibility. At the time respondent engaged in the illegal sale of drugs, respondent was a month away from his starting day as an assistant district attorney. The Supreme Court in Simon also did not believe that the pressures of life faced by an attorney justifies the attorney’s conduct of using or engaging in the sale of cocaine. The opinion specifically suggests that attorneys in those situations should attempt to deal with life’s pressures by utilizing socially acceptable means, such as “Alcoholics Anonymous, individual psychotherapy, group therapy and reliance upon family and friends for additional support.” Id. The respondent in this matter refused to participate in any of these activities at the time he engaged in his illegal conduct.

The dissent in Simon suggests that a per se rule of disbarment should not be adhered to. However, in view of the respondent’s failure to get help over several years, the nature of the crime and respondent’s impending work as a public prosecutor, disbarment is appropriate. It is indeed unfortunate that the board missed another opportunity to give a clear and convincing message to the bar that the use of illegal drugs, their sale, or involvement by attorneys in drug activities is a very serious matter. The integrity of the bar in the public’s eye cannot continually be tarnished by drug use or involvement with illegal drugs by attorneys. The practice of law is a privilege in the Commonwealth of Pennsylvania and with it *500goes awesome responsibilities. Members of the bar in general and future or present public prosecutors, in particular, must not be allowed to debase the integrity of the legal profession and erode public confidence.

Based on the foregoing, I respectfully dissent and recommend that the respondent be disbarred retroactive to January 9, 1989, the date on which the Supreme Court of Pennsylvania placed respondent on interim suspension pursuant to Rule 214(d), Pa.R.D.E.

Board Members Gilbert and Paris join in this concurring and dissenting opinion.

ORDER

February 19, 1993 — Rule to show cause entered by this court on February 20, 1992, is discharged. It is ordered that respondent be and he is suspended from the bar of this Commonwealth for a period of five years, retroactive to January 9, 1989, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is farther ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Messrs. Justice Larsen and Zappala did not participate in the consideration or decision of this matter.

Mr. Justice Papadakos files a dissenting statement.