Tuesday, May 18, 2010
A majority of the Maryland Court of Appeals has concluded that a 60-day suspension is the appropriate sanction for an attorney's unlawfully exchanging prescription drugs for sex. The misconduct did not take place in connection with the representation of a client and was volunteered to protect the interests of his client. The court found that the attorney's lawful possession of the drug at issue and the fact that only one pill changed hands to be mitigating factors.
The exchange involved a person who had accused the attorney's client of forcible rape. The accuser was the client's employee. The attorney knew the accuser on an intimate basis and withdrew from the case as a result. The rape charge was not pursued but the pill-for-sex information that was provided to the police was reported to Bar Counsel.
The court majority rejected the call for disbarment from the Attorney Grievance Commission:
...we must look at [respondent's] crime in context. On a spectrum of controlled dangerous substance distribution offenses, [his] crime is relatively minor. This lawyer possessed a legitimate prescription for Vicodin...He gave one pill to [the putitive rape victim] in return for oral sex. At some time within the past five years, he also gave Vicodin to Denise, a woman he knew. These actions violated [the law]. But they are of a fundamentally different character than if he did it regularly or was peddling his prescription pills to the public.
Perhaps more importantly, [his] misconduct likely would never have come to light had he not volunteered the information that led to the complaint against him. He did so, by all accounts, in order to help an individual who was his client until a short time before [his] disclosure to the police. The evidence shows the [he] believed his client had been wrongfully charged with rape...[his] effort to help his client was out of the ordinary, in that he willingly placed his own self-interest in jeopardy in order to serve his client's interests...Many others in his place may have lacked the fortitude to make this disclosure, given the potential risks to themselves.
The court also rejected a number of claims made by the attorney.
A dissent, joined by two other justices, expresses the view that the "sanction, for all that appears from the absence of such an analysis, was plucked randomly from thin air...judging from the conduct at issue in the present disciplinary proceeding and his inappropriate conduct in [a] prior disciplinary proceeding, it cannot be stated with any degree of confidence that [he] will not repeat these types of libido-driven actions..." The dissenters would impose an indefinite suspension of not less than six months. (Mike Frisch)