No Mitigation For Cocaine Addiction

The majority of the West Virginia Supreme Court of Appeals ordered that an attorney's license be annulled, with any reinstatement conditioned on restitution and satisfactory proof that his drug abuse is being treated and is under control. If so, reinstatement with be on two years of monitored probation. The former prosecutor and public defender had misappropriated funds. the contested issue before the court was the impact of cocaine addiction on professional discipline:

Based upon our review of the record and the arguments of counsel, we find that annulment of Mr. Brown's law license is the appropriate sanction in this case. Mr. Brown stole the money in his client trust account and violated other duties to his client. He clearly acted intentionally and knowingly when he violated the Rules of Professional Conduct. Moreover, as a result of his actions, Mr. Brown's client suffered immediate and actual damages because the subrogation claims against her were not paid.

            While this Court considered alcoholism as a mitigating factor in Hardison, the abuse of an illegal substance is clearly distinguishable. Alcohol is a legal substance; cocaine is not. Thus, an attorney who embarks on the use of an illegal substance in the first instance is knowingly violating the law. Courts in some jurisdictions have absolutely rejected the idea of considering addiction to an illegal substance as a mitigating factor. For example...the Supreme Court of California, disbarring an attorney for misappropriating funds and rejecting his request for mitigation based on his addiction to cocaine and alcohol, stated...

 [C]ocaine use is hardly a mitigating factor. Petitioner became addicted through voluntary use of an illicit drug. . . . Apart from petitioner's subsequent rehabilitative efforts, his use of cocaine increases the danger he presents to the public, the courts, and the reputation of the legal profession. Logically, therefore, it is a factor in aggravation.

Similarly, the District of Columbia Court of Appeals has observed,

               

 [T]o permit mitigation on grounds of illegal drug use effectively would reward the attorney for illegal conduct occurring after he assumes his professional responsibilities. Such a result would adversely affect the perception of the Bar. Simply stated, people go to jail for conduct that Respondent offers as a mitigating factor. An informed public would find it intolerable that such a lawyer be granted special grace. (citations omitted)             
            
            Although this Court does not absolutely preclude addiction to illegal drugs as a consideration and while Mr. Brown's actions may have stemmed in part from his cocaine addiction, we simply cannot condone his behavior and cannot accept the Board's recommendation. There is never a valid excuse for stealing client trust funds. “'Misappropriation of funds by an attorney involves moral turpitude; it is an act infected with deceit and dishonesty.'”  An attorney who misappropriates client trust funds not only harms his clients but also undermines the confidence of the public in the legal profession. Therefore, contrary to the Board, we do not find that compelling extenuating circumstances exist in this case which justify a departure from our general rule that “misappropriation or conversion by a lawyer of funds entrusted to his/her care warrants disbarment." (citations omitted).

 
The dissent would not reject the possibility of mitigation:

        

           Sometimes we need to mix a little mercy with justice. This lawyer misappropriated his client's funds to support his drug problem. He has since sought treatment and has straightened up his life. An indefinite suspension with the right to petition the Court for reinstatement in three years provides plenty of protection to the public.

            I respectfully feel that annulling this lawyer's license is not an appropriate sanction under the circumstances. The Hearing Panel Subcommittee of the Lawyer Disciplinary Board heard the evidence, considered the demeanor of the witnesses and of Mr. Brown, and made a careful, measured recommendation. I am not persuaded by the majority opinion's reasoning that the recommendations of the Board should be so lightly dismissed.  I therefore dissent.

(Mike Frisch)