In re Kersey

• Citation: 520 A.2d 321
• Decision Date: 28 January 1987
• Docket Number: No. 84-739.,84-739.
• Parties: In re B. Franklin KERSEY IV, Respondent.
• Court: Court of Appeals of Columbia District

520 A.2d 321

In re B. Franklin KERSEY IV, Respondent.

No. 84-739.

District of Columbia Court of Appeals.

Argued March 27, 1986.

Decided January 28, 1987.

Michael S. Frisch, Asst. Bar Counsel, with whom Thomas H. Henderson, Jr., Bar Counsel, Washington, D.C., was on the brief, for petitioner Bd. on Professional Responsibility.

James T. Wright, with whom Wesley Williams, Sr., Washington, D.C., was on the brief, for respondent.

Thomas E. Acey, Jr., with whom Steven C. Tabackman, Washington, D.C., was on the brief, for intervenor, Apal, Inc.

Before NEBEKER, NEWMAN and BELSON, Associate Judges.

NEWMAN, Associate Judge:

In this case of first impression, we must decide what effect Franklin Kersey's alcoholism should have upon the disciplinary sanctions imposed by this court for Kersey's twenty-four separate violations of the Code of Professional Responsibility. Kersey's misconduct, which includes three instances of misappropriation of client funds, is severe. Yet, we cannot ignore the reality that his alcoholic condition, which is currently under control, has been, to an extent, a causal factor in this misconduct. While no jurisdiction has ever held that alcoholism is a defense to charges of professional misconduct, many jurisdictions have considered it a mitigating factor when imposing discipline.¹ Indeed, there is a growing awareness in the disciplinary process of the phenomenon of alcoholism, its effect on the legal system and its implications in the disciplinary process.²

I. Procedural History

This matter was originally heard by Hearing Committee Number Six on November 10, 1982. The Committee considered evidence on thirty-eight alleged Code violations and found that Kersey had committed thirty-four of these. It recommended that Kersey be suspended from the practice of law for two years, with his reinstatement conditioned on proof of successful treatment for alcoholism. On review, the Board on Professional Responsibility found twenty-four Code violations by Kersey, rejecting two of the Committee's findings of misconduct and not reaching eight others. The Board viewed the evidence of Kersey's alleged alcoholism as vague, and concluded that he had failed to establish a connection between his alcoholism and his misconduct. In the Board's opinion, the record demonstrated "a pattern of dishonesty and deceit on the part of [Kersey] so pervasive that disbarment was the only appropriate sanction."

The case was referred to this court for final action. Before action was taken, however, Kersey filed a motion for a remand to determine the impact of his alcoholism on his professional misconduct. After this court granted the motion, Hearing Committee Six held additional hearings to examine the issue of Kersey's alcoholism and its relationship to his Code violations.

Following three days of hearings and extensive briefing, the Committee filed its Report and Recommendation with the Board. The Committee concluded that Kersey is an alcoholic and is currently in recovery. The Committee also found that Kersey's alcoholism led to "delusions and extraordinary lapses of judgment," that his misconduct would not have occurred but for his alcoholism, and that it was unlikely that his misconduct would recur so long as he continued structured rehabilitation. The Committee suggested that Kersey be suspended from the practice of law for five years plus a concurrent indefinite period under D.C. Bar R. XI § 3(2) (1986). It also recommended that Kersey be allowed to apply immediately for a stay of the suspension and to be put on probation.

The Board accepted the Committee's conclusions as to Kersey's alcoholic condition and the role it had played in his misconduct. Nonetheless, the Board rejected the Committee's disciplinary proposals. It was the Board's view that some period of actual suspension was needed to deter similar conduct by other attorneys and to motivate other alcoholic attorneys to recover.³ Hence, the Board recommended that Kersey be suspended from the practice of law for four years with a three-year stay of execution starting after one year of actual suspension. Throughout the four years, Kersey would be on probation.⁴

Intervenor, APAL, Inc.,⁵ a non-profit corporation established by the D.C. Bar Special Committee on Alcohol Abuse, recommends that Kersey be suspended from the practice of law for five years and placed on probation during this time. APAL suggests that this suspension be immediately and indefinitely stayed so long as Kersey complies with probation conditions. Kersey agrees with this proposal. APAL argues that a year of actual suspension would not deter other alcoholic attorneys since alcoholics deny their alcoholism, rarely see their acts of misconduct as wrong, and fail to see the connections between their drinking, bizarre behavior and poor performance.

It is . . . [the] conspiracy of silence, coupled with the alcoholic's denial of his alcoholism—not the use of probation as a sanction—that encourages alcoholic lawyers to slide along.

Ultimately, it must be recognized that a mind warped by alcoholism does not perceive reality as it is, or act on it. A drinking alcoholic will not be deterred by a suspension in this or any other case because, even if he becomes aware of the suspension, he will not make a connection between the discipline and the implications for his own circumstances.

APAL's Brief at 19-20.

II. Kersey's History

Franklin Kersey's problems with alcohol began almost as soon as he took his first drink. In high school, he repeatedly got drunk on weekends, becoming belligerent and combative. In college, Kersey missed classes and was eventually suspended because of excessive drinking.

In spite of his problem, Kersey was able to graduate from law school and become a very competent member of the D.C. Bar. In 1973, professors at Howard University told students to watch Kersey litigate and to analyze his trial technique. In the words of one observer, "He was good. Very good."

Even during this period in the early 1970's, Kersey drank often, and whenever he drank, he drank to excess. By the late 1970's, Kersey's condition had degenerated to the point where he frequently drank more than a fifth of rum in a single day. By 1984, Kersey's law practice was in complete disarray. He frequently missed court appearances or arrived late. He was unshaven, ill-dressed, and disheveled. His eyes were bloodshot and his breath smelled of alcohol or peppermint. When he was late for a court date, others would call Kersey at home to wake him or cover for his absence. When he did appear in court, often he was confused, unprepared, and could not identify his clients. Kersey had no financial record-keeping system, failed to file Criminal Justice Act vouchers, and began to commingle client funds and to use them for his own purposes. Kersey was reprimanded and censured by the D.C. Bar for Code violations. In 1982, he was twice arrested for drunk driving and was involved in another alcohol-related accident. By 1984, alcohol completely dominated Franklin Kersey's life. He had experienced over 100 blackouts. Family, friends and colleagues tried to confront Kersey with his alcoholism, but their efforts were futile.

It was during the period 1980-82 that Kersey committed the twenty-four violations of the Code that we deal with today. Kersey committed four separate violations of DR 1-102(A)(4) (conduct involving dishonesty); five violations of DR 1-102(A)(5) (conduct prejudicial to the administration of justice by failure to respond to Bar Counsel's written investigative inquiries); one violation of DR 2-110(A)(2) (improper withdrawal without taking steps to avoid prejudice to the client); two violations of DR 6-101(A)(3) (neglect); one violation of DR 7-101(A)(1) (intentional failure to pursue the lawful objectives of client); one violation of DR 7-101(A)(3) (intentionally prejudicing client); three violations of DR 9-103(A) (commingling, two involving misappropriation of client funds); four violations of DR 9-103(B)(3) (failure to maintain complete records of client funds); and three violations of DR 9-103(B)(4) (failure to pay over client funds promptly). As the Board on Professional Responsibility noted, "[i]t is difficult to call to mind very many respondents who, in recent years, have been proven to have engaged [in] such a widespread and persistent pattern of violations of the ethics of our profession."⁶

Finally, faced with the Board on Professional Responsibility's recommendation that he be disbarred, and confronted and supported by members of APAL, Kersey reluctantly entered a 28-day detoxification program at Pilot House in August 1984. Since then, Kersey has achieved and remained in a state of recovery. Both Dr. Charles Whitfield, a physician specializing in the treatment of professionals with drug or alcohol problems, and Richard Vincent, Executive Director of the Lawyers Counselling Program in Maryland, agree that Kersey now has the mental capacity to perform at his previous high professional level.

III. The Effect of Kersey's Alcoholism on his Professional Misconduct

That Franklin Kersey is an alcoholic is beyond question. No individual or organization that has participated in these proceedings has claimed otherwise. Kersey's alcoholism has been amply documented by his own testimony, the testimony of friends and colleagues, and the expert opinions of professionals in the field.

The nature of alcoholism, and the level of culpability to which an alcoholic attorney should be held for his condition and resulting professional behavior, are questions of vital importance to the legal system. If Kersey had been insane at the time of his misconduct, he likely would not be facing charges of Code violations since he would not be responsible for his conduct. If Kersey's misconduct had been purely voluntary, he would surely be disbarred. But alcoholic behavior, unlike insanity on the one hand or ordinary conscious...