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August 12, 1993


Before Ferren, Terry and Wagner, Associate Judges.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge : This disciplinary matter is before the court for the second time. In the prior case, we accepted the Conclusion of the Board on Professional Responsibility (the Board) that respondent, William J. Temple, had violated multiple disciplinary rules and that the appropriate sanction for his misconduct would be disbarment, unless mitigating circumstances warranted otherwise. In re Temple, 596 A.2d 585, 586-88 (D.C. 1991) (Temple I). *fn1 We also adopted the Board's determination that Temple had met his burden of showing by a preponderance of the evidence that his professional conduct was substantially affected by his addiction to prescription drugs. 596 A.2d 585 at 590. In Temple I, we held for the first time, consistent with the Board's recommendation, "that addiction to prescription drugs lawfully obtained, like alcoholism, can be treated as a mitigating factor in sanctioning an attorney for misconduct." 596 A.2d 585 at 586; see also In re Kersey, 520 A.2d 321, 327 (D.C. 1987). *fn2

In the earlier proceeding the Board recommended disbarment, concluding that respondent had not proved by clear and convincing evidence that his rehabilitation warranted mitigation. Of particular importance to the Board's Conclusion at that time, as reflected in the argument made by Bar Counsel, was that Temple "had not demonstrated a sufficiently sustained period of successful recovery." Temple I, supra, 596 A.2d 585 at 591. Respondent argued that as of the date he filed his brief, July 6, 1990, he had been drug-free for thirty months, and we observed that, assuming he had remained so during the pendency of the case, he would have been drug free for almost four years. Id. at 591. Recognizing, as we did in Kersey, that rehabilitation is a significant factor in determining discipline in cases such as this and that the status of an attorney's rehabilitation may change pending final Disposition of the case, for the protection of the public and the profession and in fairness to the respondent, we remanded the case to the Board for further proceedings to determine the status of Temple's rehabilitation since the original evidentiary hearings on his clients' complaints. Id.

The case is now before the court without a recommendation from the Board because four of its members recommended disbarment, four members recommended disbarrment with the suspension of the sanction and three years of probation, and one member recommended a remand for additional evidence of rehabilitation. The principal issue which divides the members of the Board is whether respondent proved by clear and convincing evidence significant or sufficient rehabilitation from his drug addiction to warrant suspension of disbarrment with a period of probation. The majority of the members of the hearing committee which heard the evidence addressing the issue concluded that respondent had proven that he was rehabilitated, that his disbarrment should be stayed, and that he should be placed on probation for three years with certain specified conditions. Respondent and Bar Counsel support the position taken by Board members who, adopting the recommendation of the hearing committee majority, recommended probation. We adopt the findings and recommendation of the hearing committee and the members of the Board who favor probation for the reasons set forth in this opinion.


Following remand, the Board assigned the case to a hearing committee "for further evidentiary hearings as to Respondent's rehabilitation activities." At that hearing, respondent testified in his own behalf and presented three other witnesses: his wife, his Alcoholics Anonymous/Narcotics Anonymous (AA/NA) sponsor, Steven Polin, and Susan Makepeace, Director of the Lawyer Counseling Program for the District of Columbia Bar. Respondent also submitted as exhibits medical records related to his back surgeries and seven letters from Judges and one hearing commissioner of the Superior Court of the District of Columbia. Bar Counsel introduced into evidence numerous exhibits, including the reports and transcripts of the prior proceedings. *fn3

The evidence shows that respondent has been seriously committed to recovery at least since June 1989. This is demonstrated by his abstinence from alcohol and drug use, *fn4 his regular attendance at AA/NA meetings (at least five times each week), his almost daily contact with his AA/NA sponsor, and his successful achievement of some of the steps in the twelve steps in the long-term AA/NA recovery program. Without objection, the hearing committee accepted Ms. Makepeace as an expert in the assessment and treatment of addictions. *fn5 She testified that, with the exception of the month of November 1990, when she was unavailable, respondent had seen her once each month since 1989 for one hour sessions at which they discussed matters affecting his personal and professional life. These Discussions assisted her in monitoring and assessing respondent's progress. She also testified that respondent has submitted to random drug testing for which all results proved to be negative. The test results were introduced into evidence. Ms. Makepeace described substantial, positive changes in respondent's attitude and understanding of his illness since she first saw him in 1987, and she rated his progress in recovery at the top of the scale. It was her opinion that the risk of respondent returning to addictive behavior was minimal.

Steven Polin, a volunteer with the Lawyer Counseling Program of the Bar, serves as respondent's monitor and sponsor at AA/NA. He also testified about the remarkable, positive change in respondent's behavior since 1989. Specifically, he reported that respondent had demonstrated the honesty, open-mindedness, and willingness to recover which are essential to recovery. Mr. Polin testified that in addition to maintaining sobriety over an approximately four year period, respondent has completed three of the twelve steps of the AA/NA recovery program, has started the fourth step, and is discussing other steps, *fn6 consistent with the process. According to Mr. Polin, respondent has expressed a willingness to make restitution, an element of one of the later steps in the recovery program. Respondent has volunteered his services to Oxford House, *fn7 and he has led AA/NA meetings. Mr. Polin stated that respondent had incorporated his program of recovery into all aspects of his life and that it is not likely that one could fake for two years the sincere efforts at recovery that respondent has displayed. Mr. Polin was of the opinion that even if the threat of disbarrment were removed, respondent would continue with his recovery efforts. Respondent's wife also testified about the substantial positive changes in respondent's behavior at home and in his professional life since he has been in the recovery program.

According to respondent, after an automobile accident in December 1987, he spent twenty-three to twenty-four weeks in an addiction treatment program at Arlington Hospital before becoming involved in the AA/NA and Bar Association's programs. Respondent attributes his success in overcoming drug abuse to the various components of these programs rather than to the threat of disbarment. He has been maintaining a manageable caseload without further incident and earning a steady income. He appears in court about one to five times each week. The letters he submitted from six Judges and one hearing commissioner attest to his high standards of professionalism in representing his clients.

On remand, the hearing committee found nothing to fault in respondent's performance over the past two and one-half years. The committee observed that respondent has done all he was required to do by his monitor-sponsor and by Ms. Makepeace and that he has apparently maintained high standards in his legal practice. In addressing whether respondent would continue in this manner if the threat of disbarrment were lifted, the committee relied primarily upon the opinions of Mr. Polin and Ms. Makepeace, who had worked closely with respondent as well as with many other recovering addicts. Both expressed confidence that respondent would continue with his recovery program in earnest. While the majority members of the hearing committee indicated that they would not be persuaded by respondent's testimony alone, they expressly found nothing in his testimony and demeanor which would cast doubt on the opinions of Mr. Polin and Ms. Makepeace about the sincerity of his recovery efforts and his potential for continued success. Recognizing the importance that all of the experts at the earlier hearings had placed upon the recovering addict's attendance at AA/NA meetings, the majority of the committee members found it significant that respondent had been involved completely in the recovery program for two and one-half years. Also important to their Conclusions were that respondent had been drug-free for four years, the last two and one-half years without significant setbacks, and that he appeared to desire to maintain his right to practice his profession. *fn8 On the record, as summarized here, the hearing committee reached the following Conclusion:

Although there are no guarantees in predicting whether an addict will remain in recovery or will relapse, we conclude that respondent has met his burden of demonstrating, by clear and convincing evidence, that he is sufficiently rehabilitated that allowing him to continue to practice law will not pose a significant risk to the profession or the public.

Accordingly, the hearing committee, with one member Dissenting, recommended that respondent's disbarrment be stayed and that he be placed on probation for three years with close monitoring and other conditions.

Four members of the Board adopted the hearing committee's findings, concluding that the public interest could be protected sufficiently by requiring strict conditions of probation. *fn9 The four members of the Board who recommended disbarrment were concerned with the quality of the evidence introduced at the remand hearing. Weighing significantly in their consideration was the fact that respondent and two of his three witnesses had reason to be biased in his favor because of respondent's interest in the outcome and the witnesses' relationship to him. Although not advocating that an independent medical expert be required in every case where an attorney's rehabilitation is in issue, these Board members were of the view that ...

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