Friday, June 20, 2008

Drug Use Unethical?

The District of Columbia Board on Professional Responsibility rejected a recommendation of Bar Counsel to impose a 30 day suspension in a reciprocal discipline matter where New Jersey had imposed public censure. The offense? Possession of cocaine and drug paraphernalia. New Jersey has, in the past, imposed suspension for like misconduct, but here enumerated a list of reasons in favor of a non-suspensory disposition. In particular, the attorney had made significant strides in recovery and had helped others with their rehabilitation from drug addiction. The board felt that D.C. should "support the New Jersey Court's recognition of [his] commendable effort to overcome the ill effects of his misconduct."

An interesting concurring opinion suggests that personal cocaine use is no violation of Rule 8.4(b): "There have been several periods in our recent cultural history when recreational drug use was common. Prominent individuals with illustrious careers in public service have acknowledged their occasional use of controlled substances. Without endorsing such conduct, the Court can surely recognize that many highly competent, trustworthy members of the Bar may have used controlled substances." The concurring opinion urges the Court to "not hold[] that personal use of cocaine by an attorney constitutes a disciplinary offense."

My view is that Bar Counsel had no business seeking a suspension here. As I have previously opined, the Bar Counsel that lives by the upward departure in reciprocal cases dies by the downward departure. In order to sustain Bar Counsel's position here, the board and court must conclude that every case involving simple possession of cocaine would result in suspension. This is a tough sell in a jurisdiction that has never sanctioned such conduct in an original case.

Because the attorney had asked for reciprocal discipline, the majority and concurring opinions correctly suggest that the court need not reach the question raised as to whether personal drug use violates the rules of the District of Columbia. In sum, much ado and effort to very little benefit. (Mike Frisch)

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