Discipline of Jeffries, Matter of, 17435

• Decision Date: 19 May 1993
• Docket Number: No. 17435,17435
• Citation: 500 N.W.2d 220
• Parties: In the Matter of the DISCIPLINE OF James L. JEFFRIES, as an Attorney at Law.
• Court: South Dakota Supreme Court

Page 220

500 N.W.2d 220

In the Matter of the DISCIPLINE OF James L. JEFFRIES, as an

Attorney at Law.

No. 17435.

Supreme Court of South Dakota.

Argued on Rehearing Feb. 10, 1993.

Decided May 19, 1993.

R. James Zieser, Disciplinary Bd. of State Bar, Tyndall, for complainant Disciplinary Bd.

Charles B. Kornmann of Richardson, Groseclose, Kornmann and Wyly, Aberdeen, for respondent Jeffries.

MILLER, Chief Justice (on rehearing).

On August 12, 1992, this Court determined James L. Jeffries was not "a fit and proper person to continue to practice law" and we ordered him disbarred. In re Discipline of Jeffries, 488 N.W.2d 674, 677 (S.D.1992) (Jeffries I ). We later granted Jeffries' petition for rehearing. We now determine the judgment of disbarment of Jeffries will be vacated and Jeffries will now be suspended from the practice of law for a period of three years beginning August 12, 1992, the effective date of his disbarment.

FACTS

A more complete factual background can be found at Jeffries I, so only a brief outline will be restated here. Jeffries was admitted to the practice of law in this state in 1984. He was employed until 1987 as a Pennington County Deputy State's Attorney. He prosecuted a great number of criminal cases, including drug cases. In 1990, Jeffries was contacted by law enforcement officers concerning his alleged illegal drug use while a deputy state's attorney. He ultimately entered into a plea arrangement with the Attorney General's Office wherein he pled guilty to a Class 2 misdemeanor charge of possession of marijuana. ¹

The Disciplinary Board of the State Bar of South Dakota conducted an investigation. At a hearing before the Board, Jeffries admitted he had possessed and used marijuana hundreds of times since his admission to the Bar and had used and shared cocaine on at least fifteen occasions. The Board found such conduct to be in violation of the criminal statutes of the State of South Dakota (SDCL 22-42-5 makes possession of cocaine a Class 5 felony) and to be in violation of several of the Canons of the Code of Professional Responsibility and the Rules of Professional Conduct. The Board recommended to this Court that Jeffries be suspended from the practice of law for ninety days under various conditions. This Court directed the Board to file a formal accusation. A Referee was appointed and after an evidentiary hearing he recommended that Jeffries be disbarred.

A hearing to determine the appropriate discipline to be imposed was held before this Court on December 4, 1991. The Referee's recommendation, that Jeffries be disbarred, was adopted by a plurality of this Court. Jeffries I. Nevertheless, as Jeffries points out in his petition for rehearing, three Justices expressed in that decision a preference for suspension.

We granted rehearing and Jeffries raises four issues which we view as facets of this single issue: What is the appropriate discipline of an attorney who uses illegal drugs while licensed to practice law in this state? Due to the difficulty of this question, made more difficult by the fact that at least some of Jeffries' illegal drug use occurred while he was a public prosecutor actively prosecuting drug cases, we took the extraordinary step of again hearing oral arguments.

DISCUSSION

Many years ago this court noted that an attorney "owes a duty to his profession and to the court from which he has received his license, as well as to his client." In re Egan, 22 S.D. 355, 363, 117 N.W. 874, 878 (1908). Therefore, we "keep in mind that the real and vital issue to be determined in disbarment proceedings is whether or not the accused, from the whole evidence as submitted, is a fit and proper person to be permitted to continue in the practice of law." In re Discipline of Walker, 254 N.W.2d 452, 455 (S.D.1977) (citations omitted).

"The right to practice law is a privilege granted upon demonstration of satisfactory moral fitness and adequate legal and general learning. To continue this privilege, a lawyer must maintain his fitness and qualifications." In re Discipline of Strange, 366 N.W.2d 495, 497 (S.D.1985) (citation omitted).

As officers of this court, attorneys are charged with obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney's oath of office. Because of his position in society, even minor violations of law by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude.

In re Discipline of Parker, 269 N.W.2d 779, 780 (S.D.1978).

Disciplinary proceedings are not conducted to punish an attorney. In re Discipline of Simpson, 467 N.W.2d 921, 922 (S.D.1991); In re Discipline of Hendrickson, 456 N.W.2d 140, 141 (S.D.1990); Walker, 254 N.W.2d at 455. Rather, "[t]he purpose of a disciplinary proceeding is ... to protect the public from further wrongdoing on the part of the attorney, and if necessary, to remove from the profession one who has proved himself unfit to be entrusted with the duties and responsibilities of an attorney." Strange, 366 N.W.2d at 497 (citations omitted).

Disbarment is a heavy discipline which we do not impose lightly. In past determinations of appropriate disciplines, we have considered the age of the accused, his reputation and current status, In re Discipline of Dana, 415 N.W.2d 818, 824 (S.D.1987), "whether the conduct involved dishonesty, fraud, deceit, or misrepresentation; whether the conduct is prejudicial to the administration of justice; whether the conduct adversely reflects upon the attorney's integrity, competency or fitness to practice law," Parker, 269 N.W.2d at 780, "the seriousness of the misconduct by the attorney and the likelihood of repeated instances of similar misconduct," In re Discipline of Kirby, 336 N.W.2d 378, 380 (S.D.1983), and where drugs are at issue, the "circumstances concerning the extent and frequency of the drug abuse; whether it was used during working hours; whether the accused is addicted to drugs and thus likely to do unethical acts to supply the habit; [and] whether he sold drugs and has quit using drugs." Strange, 366 N.W.2d at 497.

We have identified several categories of attorney conduct which warrant disbarment. The first, and historically the most important, is "when it is clear that the protection of society requires such action[.]" Walker, 254 N.W.2d at 455. Little is to be gained from an exhaustive dissertation comparing facts and circumstances of behavior which have led to disbarment. Nevertheless, it is appropriate to offer some recent representative situations.

This Court has found it appropriate to disbar attorneys who received felony convictions for serious crimes, within the meaning of SDCL 16-19-36, resulting in harm to clients or others. Hendrickson, 456 N.W.2d 140 (felony conviction for theft by swindle); In re Discipline of Janusz, 439 N.W.2d 559 (S.D.1989) (felony conviction for improper selling of franchises); In re Discipline of Coacher, 438 N.W.2d 549 (S.D.1989) (felony conviction of grand theft by embezzlement); In re Reinstatement of Trygstad, 435 N.W.2d 723, aff'd, 447 N.W.2d 360 (S.D.1989), (noting his felony convictions for conspiracy to distribute cocaine); In re Discipline of Moeckly, 401 N.W.2d 537 (S.D.1987) (felony convictions for perjury, importation of cocaine and conspiracy with intent to distribute cocaine); In re Discipline of Reutter, 379 N.W.2d 315 (S.D.1985) (felony convictions for aiding and abetting the distribution of cocaine and conspiracy to distribute cocaine) (convictions reversed for retrial at Reutter v. Solem, 888 F.2d 578 (8th Cir.1989) followed by plea of guilty to possession of drug paraphernalia); In re Discipline of Looby, 297 N.W.2d 487 (S.D.1980) (felony conviction for making false statements to influence financial institution); In re Discipline of Weisensee, 296 N.W.2d 717 (S.D.1980), cert. denied, 450 U.S. 1032, 101 S.Ct. 1743, 68 L.Ed.2d 227 (1981) (felony conviction for attempting to dispose of mortgaged property); In re Discipline of Voorhees, 294 N.W.2d 646 (S.D.1980) (felony conviction for making and using false documents to obtain excessive federal payments); Parker, 269 N.W.2d 779 (felony convictions for distribution of large quantities of marijuana).

Although felony convictions for crimes involving moral turpitude are often entered against an attorney before this court disbars the attorney, it does not follow that a felony conviction leads inexorably to attorney disbarment. In 1984, this Court unanimously suspended from the practice of law for a period of three years an attorney who had pled guilty to possession of cocaine, a "serious crime" within the purview of SDCL 16-19-36. This was his only conviction. The unique procedural posture of that action prevented our consideration of other inappropriate conduct, which we were made aware of through his petition for reinstatement, conduct which included smuggling marijuana into jail, perjury and using cocaine while a practicing attorney. In granting his petition for reinstatement, we observed, however, that "[a]rguably, this court was too lenient in adopting the prior recommendation of the Disciplinary Board ... rather than a more severe sanction." In re Reinstatement of Husby, 426 N.W.2d 27, 28 (S.D.1988) (footnote omitted).

In 1991, this Court suspended from the practice of law for a period of two years an attorney who admitted failing to obtain a sales tax license or to remit any sales tax to the State from 1965 through 1988. Two Justices dissented, preferring disbarment. Every year of his failure to comply with the tax laws constituted a new offense which developed into the commission of numerous felonies. Nevertheless, he pled guilty to only a single count of engaging in a...