Discipline of Johnson, Matter of, 17424

• Decision Date: 16 September 1992
• Docket Number: No. 17424,17424
• Citation: 488 N.W.2d 682
• Parties: In the Matter of the DISCIPLINE OF Gustav K. JOHNSON, as an Attorney at Law. . Original Proceeding
• Court: South Dakota Supreme Court

Page 682

488 N.W.2d 682

In the Matter of the DISCIPLINE OF Gustav K. JOHNSON, as an Attorney at Law.

No. 17424.

Supreme Court of South Dakota.

Original Proceeding

Argued Dec. 4, 1991.

Reassigned May 26, 1992.

Decided Aug. 12, 1992.

Rehearing Granted Sept. 16, 1992.

R. James Zieser, Tyndall, for complainant Disciplinary Bd.

Donald R. Shultz of Lynn, Jackson, Shultz & Lebrun, Rapid City, for respondent Johnson.

SABERS, Justice (On reassignment).

The sole issue in this original proceeding is the appropriate discipline to be imposed.

FACTS

Gustav K. Johnson (Johnson) graduated from the University of South Dakota School of Law and was admitted to the South Dakota State Bar Association in 1984. After graduation, Johnson began work for the South Dakota Division of Banking and Finance as legal counsel. After leaving this position, Johnson was engaged in the private practice of law in Pierre, South Dakota, until he was appointed as deputy state's attorney in Pennington County. Johnson remained in that position until forced to resign in April of 1990. Johnson was primarily involved in advising and representing Pennington County in civil matters, but was involved in some criminal prosecutions.

During the course of a drug investigation by the Attorney General's Office and the Division of Criminal Investigation, Johnson's drug usage surfaced. Johnson was confronted in regards to this problem in the spring of 1990. He later entered a guilty plea to a misdemeanor charge of possession of marijuana and received one year probation. The proceeding generated extensive press coverage in Pennington County and western South Dakota and Johnson was forced to resign his position with the Pennington County State's Attorney's Office.

After Johnson's plea and sentence, the Disciplinary Board initiated its investigation of his conduct. This investigation resulted in a formal accusation being filed with this Court alleging violations of Canon 1 of the Code of Professional Responsibility; Disciplinary Rule 1-102(A)(3),(5), and (6); and Rule 8.4 of the South Dakota Rules of Professional Conduct. ¹ Johnson's answer to the formal accusations admitted the possession and use of controlled substances.

This Court appointed the Honorable Eugene E. Dobberpuhl as referee in this matter. The hearing was conducted by the referee in Rapid City, South Dakota on August 15, 1991. Johnson testified that he purchased, used, possessed, and shared marijuana with other acquaintances at least one hundred times since his admission to the bar. This was referred to as "recreational" use of illicit drugs. Johnson further admitted to using cocaine on one occasion although there was testimony from a fellow deputy state's attorney that Johnson had snorted cocaine at least twice in a "recreational" setting. Johnson admitted that he was aware that the use and possession of illicit drugs was a violation of the laws which he had taken an oath to uphold. In regards to the cocaine incident, he testified that:

I had done something to commit a felony in South Dakota and it was just--as--as an attorney, as a deputy state's attorney, it was an insane thing for me to be going out and doing that.

Notwithstanding his fairly long history of drug use, Johnson further testified that he was not addicted to drugs, never sold drugs, and stopped all use of any type of illicit drugs since this problem came to light.

Several witnesses appeared in behalf of Johnson. All these witnesses stated that in a professional capacity Johnson had performed well, his clients had not been damaged by his illicit drug use, and he never appeared at work or in court appearing to be under the influence of drugs. The referee found that Johnson violated the criminal statutes of the State of South Dakota and the Code of Professional Responsibility and submitted the following recommendation to this court:

That Gustav K. Johnson be suspended for a period of ninety days from the practice of law in all of the Courts of the State of South Dakota and that said suspension be deemed satisfied and given credit for a lengthy time of de facto suspension imposed by the circumstances of this case. Further, that he comply with the following conditions:

1. That Gustav K. Johnson for a period of one year and hopefully forever, refrain entirely from the illegal use of drugs.

2. That for a period of one year not commit any act that would constitute a violation of the code of professional responsibility or that would constitute grounds for an imposition of a discipline pursuant to SDCL ch. 16-19 and acts amendatory thereto.

3. That Gustav K. Johnson perform 50 hours of community service.

4. That if it is practical and possible, that Gustav K. Johnson relate his history and his pain suffered to the law students at USD or in the alternative, if possible, at least to the ethics class at said school.

5. That Gustav K. Johnson be required to reimburse all units of government and the Disciplinary Board for its costs.

In disciplinary proceedings, this court strives to protect the public from fraudulent, unethical, or incompetent practices by attorneys and preserve the image and integrity of the legal profession as a whole. Matter of Discipline of Simpson, 467 N.W.2d 921 (S.D.1991); Matter of Pier, 472 N.W.2d 916 (S.D.1991). Although the public does not appear to need protection from Johnson as far as his work is concerned, an attorney can not shirk his professional responsibility in his personal life. Comm. on Professional Ethics v. Shuminsky, 359 N.W.2d 442 (Iowa 1984). Obedience to the law and compliance with the Code of Professional Responsibility is important by every attorney admitted to practice this honorable profession. An attorney must be held to a higher standard of conduct, particularly with respect to upholding and complying with the precepts of the law and the legal profession. If an attorney knowingly and repeatedly violates the law, he places his license to practice in jeopardy and his actions result in a loss of respect for the profession from the public.

In Matter of Parker, 269 N.W.2d 779 (S.D.1978), a case involving use of drugs, this Court stated:

As officers of this court, attorneys are charged with the 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.

Id. at 780. This Court has attempted, through a series of cases, to convey a message to the practicing bar that if you get involved in the use of drugs and are caught--expect to be disciplined. Matter of Discipline of Hopp, 376 N.W.2d 816 (S.D.1985); Matter of Discipline of Willis, 371 N.W.2d 794 (S.D.1985); Matter of Discipline of Strange, 366 N.W.2d 495 (S.D.1985); Matter of Discipline of Kessler, 366 N.W.2d 499 (S.D.1985); Matter of Discipline of Brende, 366 N.W.2d 500 (S.D.1985).

It is apparent that this message did not deter Johnson from his recreational pursuits. Johnson was a deputy state's attorney during much of the time he committed the actions complained of and his position required of him a higher standard of conduct to preserve the public trust in our system of justice. His thirst for personal pleasure caused him to violate this trust and brought into question his fitness and qualifications to practice law.

We also consider that:

(1) Johnson admitted to the commission of 100 misdemeanors (possession and use of marijuana) and one felony (use of cocaine) even though his only conviction was for possession of marijuana--a misdemeanor.

(2) The conviction of a serious crime under SDCL 16-19-36 ² resulted in disbarment in: Matter of Discipline of Hendrickson, 456 N.W.2d 140, 141 (S.D.1990); Matter of Discipline of Janusz, 439 N.W.2d 559, 561 (S.D.1989); Matter of Discipline of Coacher, 438 N.W.2d 549, 550 (S.D.1989); Matter of Discipline of Moeckly, 401 N.W.2d 537, 538 (S.D.1987); Matter of Discipline of Reutter, 379 N.W.2d 315, 316 (S.D.1985); Matter of Looby, 297 N.W.2d 487, 488 (S.D.1980); and Matter of Voorhees, 294 N.W.2d 646, 646 (S.D.1980).

(3) Commission of 1 felony and 100 misdemeanors is at least as serious as the conviction of a serious crime under SDCL 16-19-36.

(4) "The commission of 'serious crimes' implicates the need to protect the public and the profession." Hendrickson, 456 N.W.2d at 141 (emphasis added).

The ultimate decision on the discipline imposed rests with this Court. Recommendations from the Disciplinary Board and the referee are given careful consideration but are not binding. The right to practice law must not only be earned, but preserved. Johnson's conduct clearly indicates that he placed too little value on his right to practice law. "[T]he image and integrity of the legal profession is damaged every time a court permits an attorney guilty of such serious misconduct to practice law again." Simpson, 467 N.W.2d at 925 (Sabers, J., dissenting). For these reasons, Johnson is disbarred ³ from the practice of law.

HENDERSON, J., concurs with a writing.

MILLER, C.J., concurs specially.

WUEST and AMUNDSON, JJ., dissent.

HENDERSON, Justice (concurring).

As a deputy state's attorney of Pennington County, Johnson used marijuana on at least 100 occasions and cocaine at least once and probably twice.

He was an Officer of the Court and appeared at criminal arraignments and sentencings. Contrary to some assertions herein, he was not just a civil litigator.

Per arguments before this Court, Johnson has never had counseling for his drug habit nor is he contemplating any treatment and/or counseling.

Under questioning by this writer at the Supreme Court...