Preston, Matter of, 4889

• Decision Date: 29 August 1980
• Docket Number: No. 4889,4889
• Citation: 616 P.2d 1
• Parties: In the Matter of Ray C. PRESTON.
• Court: Alaska Supreme Court

Page 1

616 P.2d 1

In the Matter of Ray C. PRESTON.

No. 4889.

Supreme Court of Alaska.

Aug. 29, 1980.

Ray C. Preston, pro se, and James W. McGowan, Juneau, for respondent.

William W. Garrison, Bar Counsel, Anchorage, for Alaska Bar Association.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER ^*, BURKE and MATTHEWS, JJ.

OPINION

RABINOWITZ, Chief Justice.

This appeal involves a disciplinary matter in which we are faced with determining the nature and extent of the disciplinary action to be taken against Ray Preston. Preston was convicted of a felony, which, under Alaska Bar Rule II-23, is included in the definition of "serious crime" and thus calls for the automatic commencement of bar disciplinary proceedings. Preston was convicted on his plea of nolo contendere to the offense of distributing cocaine to another. The superior court, after hearing, suspended imposition of sentence and placed Preston on probation for two years. The Area Hearing Committee recommended that Preston be suspended for six months. Thereafter, the Disciplinary Board of the Alaska Bar Association recommended that Preston be suspended from the practice of law for two years. The case is now before us to determine whether Preston's conviction warrants discipline, and, if so, the extent to such discipline. We have determined that Preston should be suspended from the practice of law for two years.

The relevant underlying facts are as follows. After graduation from law school in 1971, Preston was employed by the Attorney General's office in Juneau. Except for a period of about six months in 1974 during which he worked as an Administrative Assistant to then-Governor Egan, Preston worked for the Attorney General's office from August 1971 until he was suspended in 1978 as a result of the criminal offense discussed herein. In May 1978, Preston was indicted by a grand jury on three counts of drug violations. Count I charged that on April 28 he had given marijuana to a thirteen-year old minor in violation of AS 17.12.010. ¹ Count II charged that on April 29 he had given this same minor cocaine in violation of AS 17.10.010. The final count, count III, charged that he had, on April 29, given to an undercover agent approximately .03 grams of cocaine in violation of AS 17.10.010. On March 19, 1979, Preston changed his plea of not guilty to nolo contendere as to count III. This was done pursuant to an agreement in which the state dismissed the remaining two counts of the indictment. As previously mentioned, at sentencing the superior court suspended imposition of sentence for two years and placed Preston on probation for that period. In addition to the usual probation conditions, Preston was ordered not to possess any controlled substances except under doctor's orders and to pay a fine of $5,000 or complete 500 hours of community service.

On April 5, 1979, we issued an order, pursuant to Bar Rule II-23(a), ² immediately suspending Preston from the practice of law for conviction of a felony, ³ "pending final disposition of a disciplinary proceeding to be commenced upon such conviction." ⁴ Since the conviction is conclusive evidence of the commission of a serious crime, ⁵ the sole purpose of the hearing was to make a recommendation as to the extent of discipline to be imposed. ⁶ After hearing testimony and reviewing all the evidence submitted, the Area Hearing Committee issued findings of fact and a recommendation of six months' suspension. ⁷

The Area Hearing Committee's findings and recommendations were then filed with the Disciplinary Board. The parties "stipulated that the Disciplinary Board could hear the matter on an expedited basis without further oral argument or briefing." The Disciplinary Board made its own findings of fact which deviated somewhat from those of the Hearing Committee. These findings formed the basis for a recommendation to this court to impose a more substantial penalty than was recommended by the Hearing Committee. The relevant findings of the Disciplinary Board are as follows:

As an officer of the court, respondent is charged with obedience to the law. When admitted to the practice of law, he swore to uphold the law.

Conviction of a serious crime is conduct that adversely affects respondent's fitness to practice law.

The Respondent's violation of the law manifests his want of fidelity to the system of lawful government.

Respondent's felonious activity engenders disrespect for the law if such activity is to go without sanction.

Respondent's '. . . criminal conduct, employing conscious dishonesty, deserves greater condemnation than if it were committed by one not obligated to adhere to high standards of honor and integrity.' Webb v. State, 580 P.2d 295, 304 (Alaska 1978).

Respondent's testimony repeatedly asserts that as a lawyer his duty to obey and uphold the law is no greater than that of any other citizen.

Respondent's testimony evidences that he regrets his violation of the law only because of the sanctions imposed for such violations.

Respondent's testimony evidences that he knowingly violated the law simply because respondent disagrees with the law.

The record evidences that respondent did not violate the law as an act of civil disobedience in order to effectuate changes in the law. He disregarded the law simply because he disagreed that the acts which he wanted to perform should be illegal.

The record evidences that respondent acquiesced to similar illegal conduct by a minor age 13.

The record evidences that Respondent's violation of the law unaccompanied by the purpose of effectuating a change in the law raises substantial doubt that he can exercise competent judgment in giving legal advice to members of the public who may seek his services as a licensed attorney.

By reasons of the foregoing, the Disciplinary Board unanimously finds that the recommendation of the Hearing Committee is inadequate . . . .

As a result, they recommended that this court suspend Preston from the practice of law for two years.

Before this court Preston has made the initial contention that no discipline should be imposed against him since the offense for which he was convicted does not reflect adversely on his fitness to practice law. He also argues that the offense is not one that involves moral turpitude. In the record before the Board were numerous letters from Preston's friends and associates suggesting that his professional skill and ability to represent clients was not affected by his use and distribution of cocaine. Preston also adverts to the observations made in State v. Erickson, 574 P.2d 1, 7-10 (Alaska 1978), that the present state of scientific knowledge does not suggest that cocaine is more dangerous than alcohol. In light of the foregoing, Preston concluded that the criminal sanction imposed on him is sufficient and that he should not be subjected to further sanctions by way of professional discipline.

Lawyers in Alaska are held to a high standard of professional conduct. Alaska Bar Rule II-9 provides, in part:

The license to practice law in Alaska is, among other things, a continuing proclamation by the Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and counselor, and as an officer of the courts. It is the duty of every member of the bar of this State to act at all times in conformity with standards imposed upon members of the Bar as conditions for the privilege to practice law. These standards include, but are not limited to, the code of professional responsibility, and the code of judicial conduct, that have been, and any that may be from time to time hereafter, adopted or recognized by the Supreme Court of Alaska.

Any attorney admitted to practice law in Alaska or any other attorney who appears, participates, or otherwise engages in the practice of law in this State is subject to the supervision of the Supreme Court of Alaska (hereinafter called 'the Court') and the Disciplinary Board hereinafter established.

As part of this supervision, the Supreme Court of Alaska and the Alaska Bar Association perform self-policing functions to assure that these high standards are maintained. As the Hawaii Supreme Court recently noted in Disciplinary Board of Hawaii v. Bergan, 592 P.2d 814, 818 (Hawaii 1979):

It is the solemn duty of this court to regulate the practice of law in this state and to see that the integrity of the profession is maintained by disciplining attorneys who indulge in practices inconsistent with the high ethical standards demanded of all members of the bar. Disciplinary Board of the Hawaii Supreme Court v. Kim, 59 Haw. 449, 583 P.2d 333 (1978); People ex rel. MacFarlane v. Harthun, Colo., 581 P.2d 716 (1978). In carrying out this duty, we will not hesitate to impose substantial sanctions upon an attorney for any act-whether committed in a professional capacity or not-which evidences want of personal honesty and integrity or renders such attorney unworthy of public confidence.

We reject Preston's contentions that because his conduct was unrelated to his professional skill and ability to practice law that he should receive no discipline. Preston relies upon California cases suggesting that unless the crime involves moral turpitude no discipline should be imposed. In re Fahey, 8 Cal.3d 842, 106 Cal.Rptr. 313, 505 P.2d 1369 (1973). ⁸ As bar counsel notes, the latest California Supreme Court pronouncement has rejected this position. In re Rohan, 21 Cal.3d 195, 145 Cal.Rptr. 855, 578 P.2d 102 (1978). ⁹

We are not persuaded that the underlying crime must be one involving moral turpitude as a prerequisite to the imposition of disciplinary sanctions. ¹⁰ An attorney acts in a position of public trust and is an officer of the court. He has a duty to the profession and the administration of justice, especially to uphold the laws of the state in which he practices. The ABA Code of Professional...