Berk, In re, 90-542

• Decision Date: 06 December 1991
• Docket Number: No. 90-542,90-542
• Citation: 602 A.2d 946,157 Vt. 524
• Court: Vermont Supreme Court
• Parties: In re Frank BERK.

Page 946

602 A.2d 946

157 Vt. 524

In re Frank BERK.

No. 90-542.

Supreme Court of Vermont.

Dec. 6, 1991.

Wendy S. Collins, Bar Counsel, Montpelier, for plaintiff-appellee.

P. Scott McGee of Hershenson, Carter, Scott & McGee, Norwich, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

PER CURIAM.

Attorney Frank Berk appeals from a Professional Conduct Board ("PCB") conclusion that he violated two provisions of the Code of Professional Responsibility, DR 1-102(A)(3) (engaging in conduct involving moral turpitude) and DR 1-102(A)(7) (engaging in conduct that adversely reflects on fitness to practice law) and from the board's recommendation that he be suspended from the practice of law for six months. We affirm the board's conclusions and accept its recommendation on sanctions.

At the time of the relevant events, appellant had been an attorney in this state for thirteen years and was a senior partner in a law firm. In May 1988, he was arrested in New Jersey in the process of purchasing between six and seven grams of cocaine, which he intended to share with an associate in his law firm. He was charged with attempted possession of cocaine but, after he successfully completed a pretrial diversion program, the charges were dismissed.

This incident triggered the filing of the PCB complaint. The subsequent investigation revealed that appellant had completed at least three similar drug purchases in the prior seven months. Each purchase was made from the same friend who lived in New Jersey. The locations of the drug purchases varied: sometimes the friend travelled to Vermont, sometimes appellant travelled to New Jersey. On each occasion, appellant collected money from other friends to buy the drugs and after the purchase shared the drugs with them. In the course of the May 1988 drug transaction, appellant met with his cocaine supplier, who had been arrested on drug charges and who sought his legal advice. Appellant told the dealer that he could not represent him because he was not licensed to practice law in New Jersey, but he discussed his case in general terms.

Appellant does not contest the board's findings. Rather, he argues that the facts do not support the board's conclusions that he engaged in conduct involving moral turpitude and adversely affecting his fitness to practice law.

The parties raise two preliminary issues: (1) what standard of review applies to PCB conclusions and dispositions, and (2) whether the PCB's conclusions concerning professional misconduct are limited in scope by the formal charge against him.

I. Standard of Review

PCB decisions are appealable to this Court under Rule 8(E) of the Permanent Rules Governing Establishment of Professional Conduct Board and Its Operation ("Permanent Rules"), A.O. 9. The same rule provides that the board's findings of fact "shall not be set aside unless clearly erroneous." Id. The rules do not, however, provide standards of review for the board's conclusions (mixed findings of fact and law) or its recommendations on sanctions.

Prior to the adoption of the rewritten Administrative Order 9 (effective July 1, 1989), the PCB's findings, whether purely factual or mixed legal and factual, were upheld if they were " 'clearly and reasonably supported by the evidence.' " In re Rosenfeld, 157 Vt. 537, ---, 601 A.2d 972, 975 (1991) (quoting In re Wright, 131 Vt 473, 490, 310 A.2d 1, 10 (1973)). Nothing in the current version of this order suggests that this standard no longer applies.

The PCB acts on behalf of this Court and pursuant to rules adopted by this Court. See Preamble to Permanent Rules, A.O. 9 (PCB created by this Court pursuant to its "exclusive responsibility ... for the structure and administration of the lawyer discipline and disability system"). This Court retains "inherent power ... to dispose of individual cases of lawyer discipline." Id.; see also Vt. Const. ch. II, § 30 (Supreme Court has "disciplinary authority concerning all ... attorneys at law in the State"). Consequently, this Court does not "review" PCB recommendations on sanctions; rather, it makes its own ultimate decisions on discipline. Nonetheless, PCB recommendations on sanctions will be accorded deference. See In re Harrington, 134 Vt. 549, 552, 367 A.2d 161, 163 (1976) (because PCB acts "both as an arm of the Court and as a body representative of the profession," its recommendations "carry great weight"). Courts in other jurisdictions are similarly deferential. See, e.g., In re Kushner, 101 N.J. 397, 403, 502 A.2d 32, 35 (1986); In re Gubbins, 380 N.W.2d 810, 812 (Minn.1986); Hawkins v. State Bar, 23 Cal.3d 622, 627, 591 P.2d 524, 526, 153 Cal.Rptr. 234, 236 (1979).

II. Complaint

Appellant argues that conclusions of misconduct cannot be based on uncharged behavior. He asserts, therefore, that only those findings relating to the events of May 1988, culminating in his arrest for attempting to purchase cocaine in New Jersey, can be used to support misconduct.

A PCB proceeding is neither civil or criminal; rather, it is sui generis. A.O. 9, Permanent Rules, Rule 13(A). Nevertheless, regardless of the form of the proceedings, an attorney charged with misconduct is entitled to basic procedural due process rights, including the right to fair notice of charges. In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1225-26, 20 L.Ed.2d 117 (1968). Thus, findings concerning uncharged behavior cannot be used to support a conclusion of misconduct. See In re Roberts, 442 N.E.2d 986, 988 (Ind.1983) (attorney charged with misconduct "is entitled to know in advance the extent of the charges against him"). When determining sanctions, however, the Court may consider not only the misconduct, but also "the entire course of [the attorney's] conduct ..., including any uncharged misconduct which is supported by the evidence in the record and relates to the finding of misconduct." Id.

III. Moral Turpitude

Appellant asserts that, under Vermont law, his behavior does not rise to the level of moral turpitude. Not every criminal act involves moral turpitude; only those which are by nature "base or depraved" qualify. State v. Fournier, 123 Vt. 439, 440, 193 A.2d 924, 925 (1963). The term is "amorphous at best," and no clear guidelines exist for determining when it applies. State v. LaPlante, 141 Vt. 405, 409, 449 A.2d 955, 957 (1982). Nevertheless, one relevant factor is society's view of the activity, that is, whether "sufficient opprobrium [has] attach[ed] to the crime." Fournier, 123 Vt. at 440, 193 A.2d at 925.

Contrary to appellant's assertions, we did not decide in LaPlante that, as a matter of law, possession of a controlled substance is never a crime of moral turpitude. We decided only that possession of an unspecified quantity of an unspecified "harmful" drug was not a crime of moral turpitude for the purpose of impeaching a witness's credibility. The Court reasoned that, because the drug in another context would have "redeeming social value," possessing it is not "inherently evil." LaPlante, 141 Vt. at 410, 449 A.2d at 957. We doubt that cocaine has redeeming social value. See In re Chase, 299 Or. 391, 404-05, 702 P.2d 1082, 1090-91 (1985) (Peterson, C.J., dissenting) (describing the debilitating physical effects of cocaine and the magnitude of the social problems its use has caused). Rather, we conclude that sufficient opprobrium has attached to its possession to support a finding of moral turpitude.

Moreover, more than simple possession is at issue here. Appellant initiated an illegal drug transaction, conspiring with his friend and a dealer in New Jersey to purchase the drug. He involved his associate in the deal, collecting money from him for the drug and intending to share it with him. Appellant went to New Jersey, met with the drug source to discuss his legal problems, and was prevented from completing the transaction only by the intervention of the police. These factors--soliciting and conspiring to purchase, possess, and distribute cocaine--make the transaction more than simple possession of a drug for personal use and are sufficient to characterize appellant's activity as involving moral turpitude.

Cases from other jurisdictions overwhelmingly support the view that virtually any drug-related activities involve moral turpitude. See Annotation, Narcotics Conviction as Crime of Moral Turpitude Justifying Disbarment or Other Disciplinary Action Against Attorney, 99 A.L.R.3d 288 (1980). In many of these cases, drug quantities are very small and profit is not a motive. See, e.g., Committee on Professional Ethics v. Green, 285 N.W.2d 17, 18 (Iowa 1979) (delivery of cocaine); State ex rel. Nebraska State Bar Ass'n v. Matt, 213 Neb. 123, 126, 327 N.W.2d 622, 623-24 (1982) (helping a friend buy cocaine constitutes "aiding and abetting in criminal dealings"); In re Gorman, 269 Ind. 236, 237, 379 N.E.2d 970, 971-72 (1978) (possession with intent to distribute, distribution and conspiring to distribute one gram of cocaine); Florida Bar v. Weintraub, 528 So.2d 367, 368 (Fla.1988) (possessing cocaine and delivering it to a friend); Office of Disciplinary Counsel v. Simon, 510 Pa. 312, 314, 507 A.2d 1215, 1216 (1986) (facilitating a sale of four ounces of cocaine).

Two cases cited by appellant--In re Smoot, 243 Kan. 589, 757 P.2d 327 (1988), and In re Chase, 299 Or. 391, 702 P.2d 1082 (1985)--are factually distinguishable. Both are simple possession cases. In neither case was there any evidence that an attorney had conspired with others to purchase drugs or had distributed drugs to others. In Smoot, an attorney was found to have possessed a gram of cocaine solely for personal use. 243 Kan. at 590, 757 P.2d at 328. The attorney was sanctioned, but not for moral turpitude. Id. Chase involved attempted possession of a small amount of cocaine, a misdemeanor. 299 Or. at 393, 702 P.2d at 1083. Overruling a disciplinary board vote, four to three in favor of...