Matter of Discipline of Jeffries

AMUNDSON, Justice

(dissenting).

This is not a case which justifies the maximum sanction of disbarment. In this day and age, South Dakota is not the only jurisdiction to encounter members of its legal profession who have succumbed to the illness of addiction to controlled substances. The record in this case clearly exposes that Jeffries was addicted to drugs and alcohol and had been for a considerable period of time. It is also evident that such an addiction is considered an illness by experts in the field who treat these specific types of illnesses. Also, this record shows that notwithstanding his illness, Jeffries was a very competent trial attorney in the Pennington County State’s Attorney’s Office. (The state’s attorney and three circuit court judges testified as to his competence as a prosecutor, and none observed or suspected that Jeffries was having a problem with alcohol or controlled substances.) Of course, it goes without saying that these witnesses did not approve of or condone Jeffries’ conduct, which has brought him before this court, but agreed that he did not pose a threat to the public if allowed to continue in the practice of law.

In a recent decision from the Supreme Court of Vermont, In re Berk, 602 A.2d 946 (Vt.1991), an attorney admitted to having possessed cocaine on a number of occasions and involving an associate in the firm in the use of cocaine. The court found the appropriate discipline warranted under these circumstances was a suspension from the practice of law for a six-month period. The court held in this regard as follows:

The PCB [Professional Conduct Board] evaluated sanctions under the American Bar Association Standards for Imposing Lawyer Sanctions. We have found these standards helpful and have used them in arriving at attorney sanctions. In re Rosenfeld, — Vt. [ — ] at —, 601 A.2d [972] at 977-78. Under Standard 3.0, factors relevant to deciding sanctions include: (a) the duty involved; (b) the lawyer’s mental state; (c) the actual or potential injury; and (d) any aggravating or mitigating factors.
Using this scheme, the PCB analyzed appellant’s actions under Standard 5.0 as a violation of a duty owed to the public. See Introduction to Standard 5.0 (“The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct.”). The board then looked at sanctions recommended for this violation. Under Standard 5.11, disbarment is an appropriate sanction *681when a lawyer engages in “serious criminal conduct, a necessary element of which includes ... the sale, distribution or importation of controlled substances.” The PCB rejected disbarment because it found no “evidence to indicate that [appellant] was engaged in commercial drug trafficking.” Instead, it recommended suspension, the appropriate sanction “when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.” Standard 5.12. Possession of narcotics is one of the crimes most commonly warranting suspension under this standard. Commentary to Standard 5.12.

602 A.2d at 950-51.

The Wisconsin Supreme Court also had the opportunity to deal with an attorney discipline case involving possession of cocaine in Disciplinary Proceedings Against Watson, 165 Wis.2d 493, 477 N.W.2d 844 (1991). In that case, the attorney, an assistant district attorney, possessed and used cocaine in the judge’s chambers while judge was absent, and directed his secretary to falsify a driver’s license receipt for a friend. The court found the use and possession of cocaine to be of a serious nature, aggravated by his official position and the use of this position to benefit a friend. This misconduct was found to warrant a one-year suspension from the practice of law. See also Matter of Smoot, 243 Kan. 589, 757 P.2d 327 (1988) (attorney convicted of one count of possession of one gram of cocaine was given a public censure with 100 hours of pro bono legal service); State ex rel. Neb. State Bar Ass’n v. Matt, 213 Neb. 123, 327 N.W.2d 622 (1982) (discipline of one-year suspension given to attorney who had aided and abetted criminal dealing in controlled substances).

Jeffries has completed a thirty-day chemical dependency treatment program and continued on with this after-care program. Further, Jeffries is an active member of the Lawyers Concerned for Lawyers Committee, which assists members of the bar with their problems involving alcohol or chemical dependency. It is obvious that the bar receives a benefit whenever an individual who has dealt with such a problem chooses to share his/her experiences in attempting to conquer these insidious illnesses. This, in my opinion, shows proof of rehabilitation which is an exceptional and compelling mitigating factor which needs to be considered in this case. Other mitigating factors are: Jeffries’ obvious remorse, cooperation with the disciplinary board and law enforcement, and the voluminous evidence of his professional competency.

This court recognized rehabilitation as an important factor to consider in disciplinary cases in Matter of Walker, 254 N.W.2d 452 (S.D.1977), where misconduct of the attorney warranted a suspension from the practice of law but for his exemplary efforts at rehabilitating from his illness — alcoholism. In Walker, we held that alcoholism is not a defense to misconduct; but, in that case of first impression, the court considered counsel’s rehabilitation efforts as sincere and fruitful so that a period of probation would serve as an incentive for counsel to continue his day-by-day efforts to overcome his illness. On numerous occasions, Walker has been recognized ■ as authority in other jurisdictions for its appropriate guideline in dealing with attorney disciplines. There is no question that one can argue that alcohol is legal, and controlled substances are illegal. One can also argue that addiction to one or the other is an illness and other factors must be considered when meting out discipline in a case involving either substance. Disbarring Jeffries certainly does not provide any rehabilitation incentive for him or any other member of the bar. In fáct, it appears that rehabilitation is no longer an appropriate factor to consider under the majority holding in Jeffries’ case. The result in this case is to quash a promising career and undermine Jeffries’ initiative to continue on his road to recovery. This tragic episode, unmarked by greed or venality, does not warrant the maximum punishment of disbarment.

In conclusion, I would find that the appropriate discipline in this case to be sus*682pension from the practice of law for three years, with the right to apply for readmission after one year, on the following conditions:

1. James Jeffries continue his chemical dependency aftercare program and submit proof of compliance upon seeking reinstatement.
2. James Jeffries perform one day of public service per month during the suspension period at the direction of the presiding judge of the judicial circuit where he resides.
3. James Jeffries reimburse all costs incurred in this proceeding by the Disciplinary Board.

One sidelight to this case, which needs to be mentioned, is the fact that one of the witnesses at the hearing testified that he had used, grown, nurtured, and shared marijuana with Jeffries and others. This attorney candidly admitted this conduct to the Disciplinary Board and received a private reprimand. This individual also showed good judgment by not contesting his discipline. It is obvious that the rehabilitation of a thirty-day chemical dependency program was more of á mitigation factor in the eyes of the board than it is in this court.

This court, in 1985, found in five separate decisions * that the appropriate discipline in cases involving possession or use of cocaine was a suspension from the practice of law. Those cases and this case do not embrace facts showing a commercial enterprise for dealing drugs. If, in fact, this case did so show, disbarment would be the singular option. Since this court has previously aligned itself to the standards mentioned above, I certainly see no reason to deviate from our established rule of discipline in controlled substance usage cases involving attorneys.

Matter of Discipline of Hopp, 376 N.W.2d 816 (S.D.1985); Matter of Discipline of Willis, 371 N.W.2d 794 (S.D.1985); Matter of Discipline of Brende, 366 N.W.2d 500 (S.D.1985); Matter of Discipline of Kessler, 366 N.W.2d 499 (S.D.1985); Matter of Discipline of Strange, 366 N.W.2d 495 (S.D.1985).