Matter of Discipline of Jeffries

488 N.W.2d 674, 1992 WL 192436

• Court: South Dakota Supreme Court
• Decided: September 16, 1992
• Docket: 17435
• Status: Published

Opinions

MILLER, Chief Justice.

This is an attorney discipline proceeding relating to James L. Jeffries. Since he has generally admitted the allegations against him, we are principally dealing with the appropriate discipline to impose.

FACTS

Jeffries, age 36, was admitted to practice law in this state on December 19, 1984. Thereafter, on January 14,1985, he went to work in Rapid City, South Dakota, as a deputy state’s attorney for Pennington County. In that capacity he prosecuted a great number of criminal cases, including drug eases. On October 14, 1987, he left the state’s attorney’s office to take a higher paying job at Rapid City Regional Hospital.

As the result of a drug investigation in Rapid City, law enforcement officers contacted Jeffries on March 19, 1990, concerning his alleged drug use during the time he was a deputy state’s attorney. Jeffries admitted that he had possessed and used marijuana hundreds of times and that he had used and shared cocaine on at least 15 occasions. Jeffries ultimately entered into a plea arrangement with the Attorney General’s Office whereunder he was granted use immunity on all drug charges, except a Class II misdemeanor charge of possession of marijuana, in exchange for his cooperation.¹ He entered a guilty plea to the misdemeanor charge. Jeffries spent one day in jail and he paid a small fine.

The Disciplinary Board (Board) of the State Bar of South Dakota investigated the matter and made a recommendation to this court that formal disciplinary action was warranted and further recommended that Jeffries be suspended from the practice of law for 90 days under various conditions. Upon receiving Board’s recommendation, this court, pursuant to SDCL 16-19-67, directed it to file a formal accusation. Ultimately, Circuit Judge Eugene L. Martin was appointed referee. SDCL 16-19-68. After an evidentiary hearing, Judge Martin recommended to this court that Jeffries be disbarred.

In all proceedings before Board and Judge Martin, Jeffries admitted he was chemically dependent. He testified that he had voluntarily entered a treatment facility. As we stated above, he also admitted that he had possessed and used cocaine and marijuana on several occasions during the time he was licensed to practice law. His testimony in that regard is quite revealing. He stated that he was using marijuana weekly,² at and before December, 1984 (when he was admitted to practice), until December, 1989, approximately 50 to 100 times per year. He admitted to selling it to friends for no profit (sharing).³ As to his cocaine use, he testified that he used it as early as December, 1984, and had done so on at least 15 occasions.⁴ Therefore, by his own admission, he committed several felonies and misdemeanors.

Although convinced it did not affect his abilities as a prosecutor, he conceded that using cocaine at the same time he was prosecuting others for the same conduct “made me nervous as hell.” He indicated that he stopped his use of cocaine in October, 1987, and his use of marijuana in December, 1989. He entered drug treatment in March, 1990, which was after he was contacted by the police.

At the hearing before Judge Martin, various attorneys, including co-workers in the state’s attorney’s office, police officers and friends testified on Jeffries’ behalf. They all testified that he had been a good, aggressive prosecutor and that his former drug usage had not impaired his legal abilities. Three local circuit judges testified positively, by deposition, to his preparedness and professionalism in their courts.

DECISION

All lawyers admitted to practice in this state are subject to discipline by this court and Board. SDCL 16-19-21. However, only this court has the authority to suspend and revoke an attorney’s license to practice law in this state. SDCL 16-19-22. Under SDCL 16-19-35, various kinds of discipline are available to us, including disbarment, suspension, placement on probationary status and public censure.

The referee in this case has recommended disbarment. “It is the settled rule in this State that ‘While the findings of the referee are not conclusive, ... they are nevertheless entitled to our careful consideration[.]’ ” Matter of Discipline of Strange, 366 N.W.2d 495, 497 (S.D.1985) (quoting Matter of Discipline of Theodosen, 303 N.W.2d 104, 106 (S.D.1981)). “If the referee’s findings are supported by the evidence, they will not be disturbed by this Court.” Strange, 366 N.W.2d at 497. “It does not necessarily follow, however, that the referee’s recommendations will also be adopted.” Id.

Disciplinary proceedings have two goals: (1) to protect the public from further fraudulent, unethical or incompetent activities involving this attorney; and (2) to preserve the image and integrity of attorneys, the bar association and the legal profession. Matter of Discipline of Simpson, 467 N.W.2d 921, 921-22 (S.D.1991); Matter of Discipline of Hendrickson, 456 N.W.2d 140, 141-42 (S.D.1990). “The purpose of disciplinary proceedings is not to punish but to remove from the profession those attorneys whose conduct has proved them unfit to be entrusted with duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrong-doing.” Hendrickson, 456 N.W.2d at 141; Matter of Discipline of Stanton, 446 N.W.2d 33, 42 (S.D.1989).

It is important to stress that “[t]he right to practice law is a privilege granted upon demonstration of satisfactory moral fitness and adequate legal and general learning. To continue this privilege, a lawyer must maintain his fitness and qualifications.” Strange, 366 N.W.2d at 497.

In this light, we consider the circumstances surrounding the drug usage in this case. We first point to the fact that Jeffries’ conduct spanned the effective dates of both the Code of Professional Responsibility and the Rules of Professional Conduct. Board asserts, and we now find, that Jeffries violated all of the following portions thereof:

Canon 1 (Code of Professional Responsibility) A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession.

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Disciplinary Rule 1-102 Misconduct.

(A) A lawyer shall not:

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(3)Engage in illegal conduct involving moral turpitude.

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(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

Rule of Professional Conduct 8.4: It is professional misconduct for a lawyer to:

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(b) [Cjommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

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(d) [E]ngage in conduct that is prejudicial to the administration of justice[.]

Jeffries testified that he first tried marijuana in 1973 when he was in high school. His drug use continued throughout college and law school. After he was admitted to practice law, his use of marijuana was generally on weekends or during vacation. He also used cocaine four or five times a year during the time he was licensed to practice law, including the time he was prosecuting drug cases. He was aware that this activity constituted a felony under South Dakota law.

After being contacted by Rapid City law enforcement authorities concerning his drug use, Jeffries entered a drug rehabilitation center for his alcohol and drug abuse, arguably as part of his plea arrangement. He currently attends AA programs on a regular basis. The record does not reveal that Jeffries’ drug use ever harmed his work or clients. However, Jef-fries has tarnished the image and integrity of attorneys; and, more importantly, he has, as a prosecutor, violated the public trust by personally ignoring the very laws he had sworn to uphold.

As officers of the court, attorneys are charged with the obedience of the laws of this state and the United States. The intentional violation of those laws ... by a lawyer tend to lessen public confidence in the legal profession. Obedience of the law exemplifies respect for the law. To lawyers especially, respect for the law must be more than a platitude.

Matter of Discipline of Moeckly, 401 N.W.2d 537, 538 (S.D.1987) (quoting Matter of Discipline of Reutter, 379 N.W.2d 315, 316 (S.D.1985)); Hendrickson, 456 N.W.2d at 141-42; Matter of Discipline of Looby, 297 N.W.2d 487, 488 (S.D.1980); Matter of Discipline of Parker, 269 N.W.2d 779, 780 (S.D.1978). If a public prosecutor does not comply with the laws of this state, how can we expect the public to follow them?

We recognize that Jeffries is not the first attorney to have illegally used drugs. This court, in the past, has tried to send the message that this behavior is not acceptable and will not be tolerated. See Matter of Discipline of Husby, 426 N.W.2d 27 (S.D.1988); Moeckly, supra; Reutter, supra; Matter of Discipline of Hopp, 376 N.W.2d 816 (S.D.1985); Matter of Discipline of Willis, 371 N.W.2d 794 (S.D.1985); Matter of Discipline of Brende, 366 N.W.2d 500 (S.D.1985); Matter of Discipline of Kessler, 366 N.W.2d 499 (S.D. 1985); Strange, supra.

Jeffries told this court that he was an intern in Sioux Falls, South Dakota, at the time that attorneys Strange, Kessler and Brende were disciplined. He stated at the hearing before this court: “[T]he fact that [Strange, Kessler and Brende] were having problems had not escaped me.” Obviously, however, the message this court tried to send attorneys during the mid-1980s did escape Jeffries.

Consideration of all the evidence leads this court to believe that in this case the proper discipline is disbarment.⁵ Jef-fries’ conduct reveals that he had little respect for the privilege to practice his chosen profession. He has damaged not only his reputation, but also the image and integrity of the legal profession as a whole. Attorneys are held to a higher standard than the general public and the profession is entitled to know that there is a consequence when the standard is not met. See, Parker, 269 N.W.2d at 780. At this time, Jeffries has not demonstrated to this court that he is a fit and proper person to continue to practice law. Therefore, an order will be entered directing that Jeffries be disbarred.

SABERS, J., concurs. HENDERSON, J., concurs with writing. WUEST and AMUNDSON, JJ., dissent.

1 . The maximum penalty for a Class II misdemeanor charge at that time was thirty days’ imprisonment in a county jail or a $100 fine, or both. See SDCL 22-6-2(2).

2 . Under South Dakota law, possession of less than one-half pound of marijuana is a Class 1 misdemeanor. SDCL 22-42-6.

3 . Under South Dakota law, distribution of less than one-half ounce of marijuana without consideration is a Class 2 misdemeanor. Distribution of marijuana in larger quantities varies from a Class 1 misdemeanor to a Class 4 felony, depending upon the quantity involved. SDCL 22-42-7.

4 .Under South Dakota law, possession of cocaine constitutes a Class 5 felony punishable by five years imprisonment in the state penitentiary; a $5,000 fine may also be imposed. See SDCL 22-42-5 and 22-6-1.

5 . For reasons articulated in my special writing in Discipline of Johnson, 488 N.W.2d 682 (S.D. 1992), I personally would have preferred a three-year suspension.