In Re Kelley

PANELLI, J.

I respectfully dissent.

I agree with Justice Mosk that before we impose discipline for an attorney’s misconduct, a nexus must exist between the attorney’s misconduct and the attorney’s fitness to practice law. I further agree with Justice Mosk that this court must refine the imprecise phrase, “other misconduct warranting discipline.” The majority opinion fails to provide a standard for imposing discipline under this phrase and declines to resolve the conflict in prior attempts to define the phrase.

I believe that the standard should be limited to attorney misconduct which impairs the attorney’s performance of his or her duties. In the present case, a nexus between petitioner’s misconduct and her performance of her duties is absent. Therefore, I would reverse the discipline imposed by the review department, and like the hearing panel, dismiss the proceeding.

The majority imposes discipline on petitioner for her law violations and “the indications of a problem of alcohol abuse” (maj. opn., ante, p. 495, italics added) which, as the majority admits, has not affected her practice of law. In imposing discipline for conduct which may affect petitioner’s future performance of her duties, although it has not yet affected her performance, the majority embarks on a dangerous journey.

Petitioner’s violations of our drinking and driving laws are obviously serious matters which pose threats to public safety. However, the Constitution vests both the duty and the power to protect society against threats to public safety in the Legislature, which enacts criminal laws of this state, and in the executive branch, which enforces those laws—not in the judicial branch or its administrative arm, the State Bar.

*501I share the majority’s unstated but obvious concern for the toll taken by drunken driving on our highways. However, that is a matter for the criminal law. In the present case, the criminal law has run its course and punished this petitioner. We simply have no right to declare ourselves higher guardians of the “public safety” and increase the criminal law’s punishment for the sole reason that this particular driver happens to be a member of the bar.

As indicated, the majority finds support for imposing discipline on the “indications of a problem of alcohol abuse.” To my knowledge, this is the first time we have imposed discipline, as a prophylactic measure, for potential problems with alcohol which have not affected the attorney’s practice of law. Here, we do not see the usual misconduct associated with alcohol abuse. In fact, the hearing panel specifically found that petitioner’s use of alcohol “has not interfered with [her] practice of law,” and that she is “a competent attorney with good relationships with clients, other attorneys, and judges in her community.” The review department made no finding to the contrary, and specifically found that “[petitioner’s] violation . . . did not involve the practice of law.”

To discipline this attorney for conduct that may in the future impair her practice of law, without disciplining all attorneys for the same reason, presents insurmountable problems of consistency and fairness. Because petitioner’s conduct thus neither involved moral turpitude nor in any way impaired her performance as an attorney, it should not be the subject of professional discipline by this court.

I would therefore dismiss this proceeding.