On Report and Recommendation of the Board on Professional Responsibility
Before Terry, Farrell and Sullivan, Associate Judges. Opinion for the court Per Curiam. Concurring opinion by Judge Farrell, with whom Terry, Associate Judge, joins. Separate statement by Judge Sullivan.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: This disciplinary matter is before the court on the report and recommendation of the Board on Professional Responsibility (the Board), to which respondent and Bar Counsel concur, that the reciprocal case against appellant should be dismissed. The factual and procedural history of this matter are set forth in the Report and Recommendation of the Board which we incorporate by reference and attach hereto as an appendix. Three members of the Board Dissented in a separate opinion which is also attached.
We review the Board's recommendation in accordance with D.C. App. R. XI, § 9 (g) (1993), which provides, in part, as follows:
the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended Disposition of the Board unless to do so would foster a tendency toward inconsistent Dispositions for comparable conduct or would otherwise be unwarranted.
Id. See also In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987). Substantially for the reasons set forth in the report, we conclude that the Board's findings are supported by substantial evidence in the record and that the Board's recommendation is appropriate. Accordingly, the disciplinary proceedings commenced against Arthur M. Reynolds, Jr. are hereby dismissed.
FARRELL, Associate Judge, with whom TERRY, Associate Judge, joins, Concurring: As this case comes to us, the only issue is whether respondent's violation of his probation is conduct prejudicial to the administration of Justice under former DR 1-102 (A)(5). Before us is no question whether respondent's admitted illegal drug use during probation (which resulted in revocation) is independent grounds for discipline. In recommending against imposition of discipline, Bar Counsel concluded:
Precedents in this jurisdiction indicate that illegal drug use, standing alone, does not constitute illegal conduct involving moral turpitude [under former DR 1-102 (A)(3) ("illegal conduct involving moral turpitude that adversely reflects on [a lawyer's] fitness to practice law")]. Thus, in order to sustain a discipline prosecution, we would have to demonstrate that [respondent's] conduct in violating probation constitutes conduct prejudicial to the administration of Justice.
Both Bar Counsel and the majority of the Board on Professional Responsibility found, and the division of this court agrees, that violation of probation in and of itself is not conduct prejudicial to the administration of Justice within the meaning of DR 1-102 (A)(5). See, e.g., In re Shorter, 570 A.2d 760, 768 (D.C. 1990). It seems apparent also that it does not violate Rule 8A (d) of the now-governing District of Columbia Rules of Professional Conduct (unethical to "engage in conduct that seriously interferes with the administration of Justice").
This case does not call upon us to decide, however, whether respondent's unlawful drug use violated new Rule 8.4 (b), making it misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." As Bar Counsel pointed out, most of respondent's drug use resulting in the probation revocation took place before the effective date of the Rules of Professional Conduct, January 1, 1991. I write only to observe that in the future a case such as this may well justify discipline. Rule 8.4 (b) purposely deletes the qualification "moral turpitude" on illegal conduct that adversely affects a lawyer's fitness to practice law and thus subjects him to discipline. The focus now, as the Comment to the rule explains, is on whether the offense "indicate lack of those characteristics relevant to law practice," and " pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation." Respondent's joint petition consenting to discipline in Maryland (in the form of a practice monitor) admitted that his "use of cocaine had interfered with his obligations to the Court on behalf of clients, including appearances before the courts in the District of Columbia." This, along with Bar Counsel's notation that the drug use in question extended over a three-month period, clearly suggests a "pattern of repeated offenses" within the ambit of Rule 8.4 (b). In future cases, such repeated illegal use of drugs affecting a lawyer's fitness to practice law may well result in discipline without regard to whether it involved "moral turpitude."
SULLIVAN, Associate Judge, separate statement: I respectfully decline to join the Concurring opinion of my colleague, Judge Farrell. Rather than attempt to prognosticate with respect to future decisions of the court, I join the PER CURIAM decision to resolve the sole issue confronting the court today.
DISTRICT OF COLUMBIA COURT OF APPEALS
BOARD ON PROFESSIONAL RESPONSIBILITY
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
The license to practice law in the District of Columbia is a continuing proclamation by . . . [the District of Columbia Court of Appeals] that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of Justice as an attorney and an officer of the court. D.C. Bar Rule XI § 2(a).
This Board as a part of the disciplinary system in this jurisdiction recommends discipline to the D.C. Court of Appeals related to the actions or inactions of attorneys under the jurisdiction of the Court. Yet, before this Board can make such a recommendation, there is a condition precedent: We must find there has been some misconduct in order for the system to impact upon the respondent's ability to practice law.
The legal profession is not immune to the ravages of drug addiction and this case clearly demonstrates that point. When faced with a potential health problem, this Board can, of course, suspend an attorney through a procedure which questions the lawyer's capacity to practice law. However, in the present case we are not talking about a determination that Respondent is physically or mentally unable to practice law. See, D.C. Bar Rule XI § 13 (Incompetent and incapacitated attorneys). Instead, this Board has before it a reciprocal discipline case premised upon an Order of the Court of Appeals of Maryland, acting on a joint petition filed by Respondent and the Maryland Bar Counsel, imposing sanctions upon Respondent. However, it is unclear to this Board which actions of Respondent constitute misconduct under a specific provision of the Code of Professional Responsibility in effect at the time of Respondent's actions. *fn1 While this Board is troubled by the actions and ...