Disciplinary Proceedings Against Penn, Matter of, 95-0536-D

• Decision Date: 04 June 1996
• Docket Number: No. 95-0536-D,95-0536-D
• Citation: 548 N.W.2d 526,201 Wis.2d 405
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST David V. PENN, Attorney at Law.
• Court: Wisconsin Supreme Court

Page 526

548 N.W.2d 526

201 Wis.2d 405

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST David V.

PENN, Attorney at Law.

No. 95-0536-D.

Supreme Court of Wisconsin.

June 4, 1996.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

We review the recommendation of the referee that the license of David V. Penn to practice law in Wisconsin be suspended for two years as discipline for the following professional misconduct. While serving as Vilas county district attorney from 1987 through 1992, Attorney Penn used marijuana and cocaine, for which he was subsequently convicted, and acted as district attorney in respect to referral and prosecution of nine persons who had used an illegal drug with him or had personal knowledge of his illegal drug use. In late 1993 and early 1994, Attorney Penn's use of marijuana and cocaine resulted in a deferred prosecution arrangement. On one occasion, Attorney Penn discussed a pending criminal matter with a defendant whose felony drug charge he was prosecuting out of the presence of the defendant's attorney and without his consent.

We determine that the recommended two-year license suspension is appropriate discipline to impose for Attorney Penn's professional misconduct. The seriousness of his criminal conduct in using illegal drugs is exacerbated by the fact that it occurred in the context of his official position as district attorney, a position of public trust in the legal system to which the people of his county elected him. His repeated contravention of the criminal law, which was widely known in the community, caused significant and unjustified damage to the public's perception of the integrity of law enforcement personnel throughout the county.

Attorney Penn was admitted to practice law in Wisconsin in 1986 and practiced and served as district attorney in Eagle River. He has not previously been the subject of a disciplinary proceeding. He was suspended from membership in the State Bar in October, 1993 for failure to pay membership dues, and that suspension continues. The referee in this proceeding, Attorney Janet A. Jenkins, made findings of fact pursuant to the stipulation of the parties.

In January, 1993, on his guilty plea to five counts of possession of marijuana containing THC and an Alford plea to one count of cocaine possession, Attorney Penn was found guilty and convicted of six misdemeanors. Sentence was withheld and Attorney Penn was placed on probation for three years, with six months in the county jail with Huber privileges, and ordered to perform 200 hours of community service.

While acting as district attorney, Attorney Penn was involved in referral and prosecution in criminal proceedings of nine persons who previously had used an illegal drug with him or had personal knowledge of his illegal drug use. The referee concluded that Attorney Penn thereby represented his client, the State, when that representation might have been or was materially limited by his own interests, in violation of the conflict of interest rule, SCR 20:1.7(b). ¹

In February, 1990, while at a tavern, District Attorney Penn encountered the defendant in a pending felony drug case and discussed the case out of the presence and without the consent of the defendant's attorney. The referee concluded that his doing so violated SCR 20:4.2. ²

In February, 1994, after he had left office as district attorney, Attorney Penn's blood and urine samples taken following a traffic stop disclosed the presence of cocaine metabolite and marijuana metabolite. He then was charged with...