In re Doherty
Annotate this Case
ENTRY_ORDER.94-379; 162 Vt. 631; 650 A.2d 522
[Filed 07-Oct-1994]
ENTRY ORDER
SUPREME COURT DOCKET NO. 94-379
OCTOBER TERM, 1994
In re John R. Doherty, Esq. } APPEALED FROM:
}
}
} From Professional Conduct
} Board
}
} DOCKET NO. 92.439
In the above entitled cause the Clerk will enter:
No appeal having been filed from the report of the Professional Conduct
Board, the recommendation of the dissenting opinion therein is approved.
It is hereby ordered that John R. Doherty, Esq., be suspended for two
months. The opinions of the Board are attached for publication as part of
the order of this Court. A.O. 9, Rule 8E.
The period of suspension shall begin on November 1, 1994 and end on
December 1, 1994.
BY THE COURT:
_______________________________________
Frederic W. Allen, Chief Justice
_______________________________________
Ernest W. Gibson III, Associate Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
[x] Publish
[ ] Do Not Publish
-------------------------------------------------------------------------------
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: PCB File No. 92.43
John R. Doherty, Esq.--Respondent
NOTICE OF DECISION
DECISION NO. 71
This matter was presented to us by joint stipulation of the
parties. The parties also appeared before us at a Rule 8(D)
hearing on April 1, 1994, to urge the recommended sanction of
public reprimand.
We accept the parties stipulation of facts and conclude that
Respondent violated DR 1-102(A)(7) (engaging in conduct adversely
reflecting upon fitness to practice law) by engaging in the use
and cultivation of marijuana.
FACTS
Respondent, John R. Doherty, became a member of the California
bar in 1979. In December of 1990, he joined the Vermont bar. He
is presently a member of the firm of Medor, McCamley & Doherty,
P.C., in Rutland.
In September of 1992, pursuant to a search warrant, State and
local police searched Respondent's home and seized marijuana, three
marijuana plants, and drug paraphernalia. The police found no
evidence of the purchase, sale or distribution of marijuana at Mr.
Doherty's home. Respondent informed the Board that the marijuana
was f or his personal use, and we accept that statement as true.
Respondent was charged with a felony, the knowing and unlawful
possession of marijuana in an amount consisting of more than two
ounces. He pled guilty to one charge of cultivation of marijuana
in violation of 18 V.S.A. { 4230 (a) (1), a misdemeanor. Respondent
was given a one year deferred sentence with the requirements that
he participate in substance abuse screening, counselling and
treatment as directed-by his probation officer and contribute $500
to the Manchester D.A.R.E. program (Drug Abuse Resistance
Education).
CONCLUSIONS
We agree with the stipulation proposed by the parties that an
attorney is expected to conform to the legal requirements of the
legal system in which he practices. Engaging in the cultivation
and use of illegal drugs is a serious violation of the laws of
Vermont.
Although Respondent possessed a sufficient amount of marijuana
to constitute a felony under the laws of this state, he was
convicted of a misdemeanor. By engaging in such conduct and being
convicted of a criminal offense, Respondent violated DR 1-
102(A)(7).
We do not agree, however, with the parties proposed mitigating
factors. The only mitigating factors which we conclude are present
here are an absence of a prior disciplinary record and a co-
operative attitude toward the disciplinary proceedings.
We reject the parties, recommendations that three other
mitigating factors are also present. First, because Respondent
received only a deferred sentence, we do not find that there has
been the imposition of other penalties of such significance to
amount to a mitigating factor. Second, based upon Respondent's
statements to the Board and his general demeanor, we cannot find
that Respondent appreciates the seriousness of his conduct Or is
remorseful for engaging in a serious violation of the criminal
laws. Third, the rendering of legal services pro bono is not a
mitigating factor under the ABA Standards and will not be
considered one here.
In aggravation, we find that Respondent has substantial
experience in the practice of law.
In recommending an appropriate sanction to the Supreme Court,
we are guided by the Court's decision in In re Berk , 157 VT 524
(1991) and with our previous experience in that case as well as the
companion case of In re mayer, 159 Vt 617(1992)(mem). In Berk,
Respondent was suspended for six months after his arrest in New
Jersey for attempting to purchase between six and seven grams of
cocaine. Criminal charges were dismissed after Mr. Berk
successfully completed a pretrial diversion program. Prior to his
arrest in New Jersey, Mr. Berk had purchased cocaine on at least
three other occasions, each time collecting money from friends and
sharing the cocaine purchased with them. At the time of the New
Jersey arrest, Mr. Berk met with the cocaine supplier who sought
his legal advice on a pending drug charge. Although Mr. Berk
declined to represent the supplier, he did discuss his case with
him in general terms.
Although certainly serious, we consider the crime here of
cultivation of three plants in Respondent's own vegetable garden
to be materially different from the conduct in Berk for a number
of reasons: First, Respondent here was not, as in Berk or Mayer,
involved with the more dangerous drug of cocaine. In both state
and federal courts nationwide, cocaine possession, manufacturing,
and/or sale is uniformally treated far more harshly than similar
activity involving marijuana. Second, Respondent here did not, as
in Berk, engage in a criminal conspiracy with others who knew him
to be a lawyer and who had sought his legal advice. Third, and,
most importantly, Respondent here was not, as in Berk, involved in
soliciting others to purchase illegal drugs or in distributing
illegal drugs to others.
While we are mindful of the dissenting opinion's concern that
the amount of marijuana cultivated classified Respondent's acts
here as felonious, we are also mindful that the legislative intent
in that classification was to punish those in the business of
distributing marijuana to others. The evidence here supports our
belief that Respondent was using the marijuana for purely personal
consumption. The number of plants and the absence of any of the
typical indicia of drug trafficking (e.g., scales, lists of
suppliers and/or customers, etc.) confirms such a finding.
Other jurisdictions have taken a variety of approaches in this
matter. We note that sanctions of public reprimand have been
imposed in several cases involving misdemeanor convictions for
possession of marijuana. See Matter of Roache, 540 N.E.2d 36
(Ind.1989); Matter of Turner, 463 N.E.2d 477 (Ind. 1984), Matter
of Higgins, 480 N.Y.S.2d 257 (N.Y. App.Div. 1984); Matter of
Echevarria, 574 A.2d 991 (N.J. 1990). See also Matter of Anonymous
Member of the South Carolina Bar, 360 S.E.2d 322 (S.C.
1987) (private admonition) and Grievance Committee for the Tenth
Judicial District v. Director, 442 N.Y.S.2d 553 (N.Y. App.Div.
1981)(public censure for misdemeanor sale of marijuana). While
similar conduct has also resulted in suspension in some
jurisdictions, see, e.g., Oklahoma Bar Ass'n v. Denton, 598 P.2d 663 (Okla. 1979) and Oklahoma Bar Ass'n v. Thompson, 781 P.2d 824
(Okla. 1989). and The Florida Bar v. Schram, 355 So. 2d 788 (Fla.
1978), we find, under the circumstances presented here, that public
reprimand reflects a more measured and appropriate response.
Given the results reached in Mayer and Berk, which involved
more serious criminal activity than engaged in here, we feel that
it would be appropriate for the Supreme Court to publicly reprimand
Respondent with the added condition that Respondent be placed on
probation with the condition that he successfully complete his
court imposed conditions of probation.
Dated at Montpelier, Vermont this 17th day of May, 1994.
Joseph F. Cahill J. Garvan Murtha
Donald Marsh Edward Zuccaro
Robert Keiner
Rosalyn L. Hunneman
Anne K. Batten
------------------------------------------------------------------------------
Dissenting
While we have great respect for our colleagues views, we feel
that precedent as well as public policy require that Respondent be
suspended from the practice of law for two months.
Section 5.12 of the ABA Standards for Imposing Lawyer
Discipline states that, absent aggravating or mitigating factors,
experience at the bar and because it was the first time the New
Jersey court was presented with such misconduct. The McLaughlin
court held that, henceforth, a lawyer's drug-related activities
would ordinarily call for suspension.
The other cases relied upon in Berk best characterize our
feeling about Respondent's conduct here. See Office of
Disciplinary Counsel v. Simon, 510 Pa. 312 , 321, 507 A.2d 1215,
1220 (1986)(attorney's involvement in drug transaction reflected
on his ability to practice law because he "knowingly and
intentionally shirked his responsibility as an officer of the court
and exemplified disrespect for the laws which govern our society");
In re Gorman, 269 Ind. 236, 239, 379 N.E.2d 970, 972
(1978)(attorney's drug conviction implicated his fitness to
practice law because he "has attempted to place himself above the
law and superior to societal judgments").
Respondent here cultivated three marijuana plants which were
approximately four feet high when they were seized. This means
that Respondent, who had been a lawyer for at least 13 years,
knowingly engaged in this criminal activity over a considerable
period of time and without regard to his ethical obligation to obey
the law. It is activity which the people of Vermont, through their
State Legislature, have deemed to be a felony, regardless of the
fact that Respondent eventually pled guilty to a lesser crime.
Under the Code of Professional Responsibility, a felony is a
serious" crime. Definitions (5) (amended 1988).
We cannot conceive how knowing, intentional, and prolonged
criminal activity by an experienced lawyer can be considered
anything but conduct which seriously adversely reflects upon his
fitness to practice law, mandating suspension under the ABA
guidelines. Such blatant disregard for the law casts serious doubt
upon Respondent's commitment to the ethical standards of this
profession.
We are disturbed by the majority's reliance upon the decision
in Berk as a high water mark against which all other criminal acts
involving illegal drugs will be compared. The imposition of
sanctions in each case, despite the ABA guidelines and our
experience in reviewing many, many cases, is unique to that
particular case. The kinds of sanctions imposed in previous cases
are always helpful to re-examine; they do not, however, dictate
what sanction must be imposed here.
It is worth recalling that in Berk, the appropriate sanction
under the ABA guidelines was disbarment. Id. at 532. This Board
rejected that standard as too draconian in light of the absence of
evidence of commercial drug trafficking and in light of many
mitigating factors that were present in the Berk case but which
are not present here. The majority here has further diluted the
ABA guidelines by construing the Berk sanctions as the general rule
to be imposed in illegal drug cases.
Finally, we are most disappointed by the majority's
recommendation because it reflects a departure from all other
reported cases handled by this Board where criminal conduct has
been involved. In all other cases, some period of suspension has
been imposed, even where the convictions were f or misdemeanors.
See In re Massucco, 159 Vt 617(1992)(four month suspension from
the practice of law following a conviction for failure to file
income tax returns); In re Taft, 159 Vt. 617(1992)(four month
suspension following conviction for failure to file income tax
returns); and In re Free, 159 VT 617 (six month suspension
following conviction for failure to file income tax returns).
In summary, we urge the Supreme Court to reject the majority's
recommendation as far too lenient and to impose a period of
suspension of at least two months.
Dated at Montpelier, Vermont this 17th day of May 1994.
Jane Woodruff Nancy Foster
Karen Miller
Deborah S. Banse
Ruth Stokes
ADDENDUM: The following Board members were absent when the Board
considered this matter on April 1 and, therefore, did not take part
in this decision: Nancy Corsones, Robert O'Neill, and Paul Ferber.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
