Matter of Discipline of Strange

366 N.W.2d 495, 1985 S.D. LEXIS 252

• Court: South Dakota Supreme Court
• Decided: April 17, 1985
• Docket: 14637
• Status: Published

Opinions

FOSHEIM, Chief Justice.

The Disciplinary Board (Board) of the State Bar of South Dakota investigated the conduct of attorney Keith R. Strange and found that he possessed and used cocaine on numerous occasions during the years 1979 and 1982, all in violation of the criminal statutes of South Dakota and Canon I of the Code of Ethics. The Board recommended that formal disciplinary proceedings be instituted, and this Court directed the Board to file a formal accusation pursuant to SDCL 16-19-67. That accusation states Keith R. Strange was admitted as an attorney at law in the courts of South Dakota on May 16,1974, and since then has been engaged in the practice of law in this state. Respondent was charged with unprofessional conduct in that he violated the criminal statute (SDCL 22-42-5) requiring that no person shall knowingly possess a controlled drug or substance and the Code of Professional Responsibility which requires that a lawyer should maintain the integrity and competence of the legal profession, and shall not engage in illegal conduct involving moral turpitude. The accusation specifically alleged that at numerous times in 1979 and 1982, Mr. Strange possessed and used cocaine, a controlled drug and substance as defined by SDCL 34-20B-16(2), at a time when he was licensed to practice law in the State of South Dakota. By answer, Mr. Strange admitted each allegation.¹

Upon receipt of that report, this Court appointed the Honorable Robert L. Tschet-terf Circuit Judge, as referee to conduct a hearing on the matter and to submit findings .and recommendations. The findings of the referee essentially followed those of the Board. The recommendations, however, differed. The Board recommended:

... that Keith R. Strange be subjected to the sanction of a ninety (90) day suspension from the practice of law in the State of South Dakota provided, however, that the foregoing sanction shall be imposed only if Keith R. Strange fails to fulfill the following conditions:

(1) That for a period of one year from the date of said sanction Keith R. Strange refrain entirely from the illicit use of drugs.

(2) That for a period of one year from the date of said sanction Keith R. Strange not commit any act that would constitute a violation of the Code of Professional Responsibility that would constitute grounds for the imposition of a discipline pursuant to SDCL 16-19 and acts amendatory thereto.

(3) That Keith R. Strange be required to give one day of public service per month for three months at the direction of its Presiding Judge.

The referee would impose a 90 day suspension from the practice of law beyond the recommendation of the Board. Mr. Strange found the suggestions of the Board acceptable, but filed objections to the disciplines recommended by‘the referee. This Court held a hearing on the matter on December 12, 1984.

The 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. State ex rel. Rice v. Cozad, 70 S.D. 193, 16 N.W.2d 484 (1944).

In Matter of Parker, 269 N.W.2d 779 (S.D.1978) which also involved the illegal use of drugs, we said:

As officers of this court, attorneys are charged with the obedience of the laws of this state and the United States. The intentional violation of those laws by those who are specially trained and knowledgeable of them is particularly unwarranted and constitutes a breach of the attorney’s oath of office. Because of his position in society, even minor violations of law 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.

Id. at 780. This language also appears in Canon I EC 1-5 of the Code of Professional Responsibility.

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!!]” In Matter of Discipline of Theodosen, 303 N.W.2d 104, 106 (S.D.1981); see also, In the Matter of Discipline of Rensch, 333 N.W.2d 713 (S.D.1983); In Re Goodrich, 78 S.D. 8, 98 N.W.2d 125 (1959); In Re Schmidt, 70 S.D. 161, 16 N.W.2d 41 (1944). If the referee’s findings are supported by the evidence, they will not be disturbed by this Court. Theodosen, supra; Rensch, supra; Goodrich, supra; Schmidt, supra. Here the facts are not disputed. The referee’s findings are adopted. It does not necessarily follow, however, that the referee’s recommendations will also be adopted. Rensch, supra.

The purpose of a disciplinary proceeding is not to punish, but to protect the public from further wrongdoing on the part of the attorney, In Re Egan, 36 S.D. 228, 154 N.W. 521 (1915), and if necessary, to remove from the profession one who has proved himself unfit to be entrusted with the duties and responsibilities of an attorney. In Re Kunkle, 88 S.D. 269, 218 N.W.2d 521 (1974). In that light, we consider circumstances concerning the extent and frequency of the drug abuse; whether it was used during working hours; whether the accused is addicted to drugs and thus likely to do unethical acts to supply the habit; whether he sold drugs and has quit using drugs. The referee did not enter specific findings regarding these elements. They are, however, addressed in the testimony and ostensibly were considered by the referee, who observed the witnesses. All of these concerns seem to have been answered favorable to Mr. Strange. Nevertheless, we cannot conclude from the entire record that the recommendations of the referee, who observed the witnesses, were inappropriate. The referee’s recommendations are accordingly adopted.

WOLLMAN, J., and WUEST, Circuit Judge, Acting as a Supreme Court Justice, concur. HENDERSON, J., specially concurs. MORGAN, J., dissents.

1 . Each charge was revealed by the testimony of Mr. Strange to a grand jury for which he was granted immunity from criminal prosecution. If Mr. Strange had been convicted of this offense he would have been summarily suspended. SDCL 16-19-37.