In re Berk

Annotate this Case

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 90-542

In re Frank Berk Supreme Court

Original Jurisdiction

September Term, 1991

Wendy S. Collins, Bar Counsel, Montpelier, for plaintiff-appellee

P. Scott McGee of Hershenson, Carter, Scott & McGee, Norwich, for
defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

PER CURIAM. Attorney Frank Berk appeals from a Professional Conduct
Board ("PCB") conclusion that he violated two provisions of the Code of
Professional Responsibility, DR 1-102(A)(3) (engaging in conduct involving
moral turpitude) and DR 1-102(A)(7) (engaging in conduct that adversely
reflects on fitness to practice law) and from the board's recommendation
that he be suspended from the practice of law for six months. We affirm the
board's conclusions and accept its recommendation on sanctions.
At the time of the relevant events, appellant had been an attorney in
this state for thirteen years and was a senior partner in a law firm. In
May 1988, he was arrested in New Jersey in the process of purchasing between
six and seven grams of cocaine, which he intended to share with an associate
in his law firm. He was charged with attempted possession of cocaine but,
after he successfully completed a pretrial diversion program, the charges
were dismissed.
This incident triggered the filing of the PCB complaint. The subse-
quent investigation revealed that appellant had completed at least three
similar drug purchases in the prior seven months. Each purchase was made
from the same friend who lived in New Jersey. The locations of the drug
purchases varied: sometimes the friend travelled to Vermont, sometimes
appellant travelled to New Jersey. On each occasion, appellant collected
money from other friends to buy the drugs and after the purchase shared the
drugs with them. In the course of the May 1988 drug transaction, appellant
met with his cocaine supplier, who had been arrested on drug charges and
who sought his legal advice. Appellant told the dealer that he could not
represent him because he was not licensed to practice law in New Jersey, but
he discussed his case in general terms.
Appellant does not contest the board's findings. Rather, he argues
that the facts do not support the board's conclusions that he engaged in
conduct involving moral turpitude and adversely affecting his fitness to
practice law.
The parties raise two preliminary issues: (1) what standard of review
applies to PCB conclusions and dispositions, and (2) whether the PCB's
conclusions concerning professional misconduct are limited in scope by the
formal charge against him.
I. Standard of Review
PCB decisions are appealable to this Court under Rule 8(E) of the
Permanent Rules Governing Establishment of Professional Conduct Board and
Its Operation ("Permanent Rules"), A.O. 9. The same rule provides that the
board's findings of fact "shall not be set aside unless clearly erroneous."
Id. The rules do not, however, provide standards of review for the board's
conclusions (mixed findings of fact and law) or its recommendations on
sanctions.
Prior to the adoption of the rewritten Administrative Order 9
(effective July 1, 1991), the PCB's findings, whether purely factual or
mixed legal and factual, were upheld if they were "'clearly and reasonably
supported by the evidence.'" In re Rosenfeld, No. 89-513 (Vt. Nov. 1,
1991), slip op. at 6 (quoting In re Wright, 131 Vt. 473, 490, 310 A.2d 1, 10
(1973)). Nothing in the current version of this order suggests that this
standard no longer applies.
The PCB acts on behalf of this Court and pursuant to rules adopted by
this Court. See Preamble to Permanent Rules, A.O. 9 (PCB created by this
Court pursuant to its "exclusive responsibility . . . for the structure and
administration of the lawyer discipline and disability system"). This Court
retains "inherent power . . . to dispose of individual cases of lawyer
discipline." Id.; see also Vt. Const. ch. II, { 30 (Supreme Court has
"disciplinary authority concerning all . . . attorneys at law in the
State"). Consequently, this Court does not "review" PCB recommendations on
sanctions; rather, it makes its own ultimate decisions on discipline.
Nonetheless, PCB recommendations on sanctions will be accorded deference.
See In re Harrington, 134 Vt. 549, 552, 367 A.2d 161, 163 (1976) (because
PCB acts "both as an arm of the Court and as a body representative of the
profession," its recommendations "carry great weight"). Courts in other
jurisdictions are similarly deferential. See, e.g., Matter of Kushner, 101
N.J. 397, 403, 502 A.2d 32, 35 (1986); Matter of Discipline of Gubbins, 380 N.W.2d 810, 812 (Minn. 1986); Hawkins v. State Bar, 23 Cal. 3d 622, 627,
591 P.2d 524, 526, 153 Cal. Rptr. 234, 236 (1979).
II. Complaint
Appellant argues that conclusions of misconduct cannot be based on
uncharged behavior. He asserts, therefore, that only those findings
relating to the events of May 1988, culminating in his arrest for attempting
to purchase cocaine in New Jersey, can be used to support misconduct.
A PCB proceeding is neither civil or criminal; rather, it is sui
generis. A.O. 9, Permanent Rules, Rule 13(A). Nevertheless, regardless of
the form of the proceedings, an attorney charged with misconduct is entitled
to basic procedural due process rights, including the right to fair notice
of charges. In re Ruffalo, 390 U.S. 544, 550 (1968). Thus, findings
concerning uncharged behavior cannot be used to support a conclusion of
misconduct. See Matter of Roberts, 442 N.E.2d 986, 988 (Ind. 1983)
(attorney charged with misconduct "is entitled to know in advance the extent
of the charges against him"). When determining sanctions, however, the
Court may consider not only the misconduct, but also "the entire course of
[the attorney's] conduct . . . including any uncharged misconduct which is
supported by the evidence in the record and relates to the finding of
misconduct." Id.
III. Moral Turpitude
Appellant asserts that, under Vermont law, his behavior does not rise
to the level of moral turpitude. Not every criminal act involves moral
turpitude; only those which are by nature "base or depraved" qualify. State
v. Fournier, 123 Vt. 439, 440, 193 A.2d 924, 925 (1963). The term is
"amorphous at best," and no clear guidelines exist for determining when it
applies. State v. LaPlante, 141 Vt. 405, 409, 449 A.2d 955, 957 (1982).
Nevertheless, one relevant factor is society's view of the activity, that
is, whether "sufficient opprobrium [has] attach[ed] to the crime."
Fournier, 123 Vt. at 440, 193 A.2d at 925.
Contrary to appellant's assertions, we did not decide in LaPlante that,
as a matter of law, possession of a controlled substance is never a crime
of moral turpitude. We decided only that possession of an unspecified
quantity of an unspecified "harmful" drug was not a crime of moral
turpitude for the purpose of impeaching a witness's credibility. The Court
reasoned that, because the drug in another context would have "redeeming
social value," possessing it is not "inherently evil." LaPlante, 141 Vt. at
410, 449 A.2d at 957. We doubt that cocaine has redeeming social value.
See In re Chase, 299 Or. 391, 404-05, 702 P.2d 1082, 1090-91 (1985)
(Peterson, C.J., dissenting) (describing the debilitating physical effects
of cocaine and the magnitude of the social problems its use has caused).
Rather, we conclude that sufficient opprobrium has attached to its
possession to support a finding of moral turpitude.
Moreover, more than simple possession is at issue here. Appellant
initiated an illegal drug transaction, conspiring with his friend and a
dealer in New Jersey to purchase the drug. He involved his associate in the
deal, collecting money from him for the drug and intending to share it with
him. Appellant went to New Jersey, met with the drug source to discuss his
legal problems, and was prevented from completing the transaction only by
the intervention of the police. These factors -- soliciting and conspiring
to purchase, possess, and distribute cocaine -- make the transaction more
than simple possession of a drug for personal use and are sufficient to
characterize appellant's activity as involving moral turpitude.
Cases from other jurisdictions overwhelmingly support the view that
virtually any drug-related activities involve moral turpitude. See
Annotation, Narcotics Conviction as Crime of Moral Turpitude Justifying
Disbarment or Other Disciplinary Action Against Attorney, 99 A.L.R. 3d 288
(1980). In many of these cases, drug quantities are very small and profit
is not a motive. See, e.g., Committee on Professional Ethics v. Green, 285 N.W.2d 17, 18 (Iowa 1979) (delivery of cocaine); State v. Matt, 213 Neb.
123, 126, 327 N.W.2d 622, 623-24 (1982) (helping a friend buy cocaine
constitutes "aiding and abetting in criminal dealings"); Matter of Gorman,
269 Ind. 236, 237, 379 N.E.2d 970, 971-72 (1978) (possession with intent to
distribute, distribution and conspiring to distribute one gram of cocaine);
Florida Bar v. Weintraub, 528 So. 2d 367, 368 (1988) (possessing cocaine and
delivering it to a friend); Office of Disciplinary Counsel v. Simon, 510 Pa.
312, 314, 507 A.2d 1215, 1216 (1986) (facilitating a sale of four ounces of
cocaine).
Two cases cited by appellant -- Matter of Smoot, 243 Kan. 589, 757 P.2d 327 (1988), and In re Chase, 299 Or. 391, 702 P.2d 1082 (1985) -- are
factually distinguishable. Both are simple possession cases. In neither
case was there any evidence that an attorney had conspired with others to
purchase drugs or had distributed drugs to others. In Smoot, an attorney
was found to have possessed a gram of cocaine solely for personal use. 243
Kan. at 590, 757 P.2d at 328. The attorney was sanctioned, but not for
moral turpitude. Id. Chase involved attempted possession of a small amount
of cocaine, a misdemeanor. 299 Or. at 393, 702 P.2d at 1083. Overruling a
disciplinary board vote, four to three in favor of finding that such
conduct involved moral turpitude, a divided court distinguished between
possession for personal use and trafficking or sale. Id. at 403, 702 P.2d
at 1090.
That appellant was prevented from completing the transaction is
irrelevant. With respect to moral turpitude, there is no distinction
"between the commission of a substantive crime and an attempt to commit it."
Id. at 402, 702 P.2d at 1089.
IV. Fitness
Appellant argues that his actions in attempting to purchase and
distribute cocaine did not directly implicate his professional conduct or
adversely affect his capacity to practice law. We disagree.
An attorney is subject to misconduct even for actions committed outside
the professional capacity. Committee on Professional Ethics v. Shuminsky,
359 N.W.2d 442, 445 (Iowa 1984) ("lawyers do not shed their professional
responsibility in their personal lives"); see also Disciplinary Board of
Hawaii v. Bergan, 60 Haw. 546, 554, 592 P.2d 814, 818 (1979).
The Alaska Supreme Court rejected a similar argument in Matter of
Preston, 616 P.2d 1, 5 (1980):
An attorney acts in a position of public trust and is an
officer of the court. He has a duty to the profession
and the administration of justice, especially to uphold
the laws of the state in which he practices.

See also Matter of McLaughlin, 105 N.J. 457, 462, 522 A.2d 999, 1002 (1987)
(possession of drugs for personal use reflected adversely on attorney's
fitness to practice law); Simon, 510 Pa. at 321, 507 A.2d at 1220
(attorney's involvement in drug transaction reflected on his ability to
practice law because he "knowingly and intentionally shirked his responsi-
bility as an officer of the court and exemplified disrespect for the laws
which govern our society"); Gorman, 269 Ind. at 239, 379 N.E.2d at 972
(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").
Appellant knew his behavior was illegal. He had been an attorney for
thirteen years and even discussed criminal charges with the New Jersey
drug dealer. His actions reflect negatively on his professional judgment
and detract from public confidence in the legal profession.
Also relevant is Ethical Consideration 1-5 of the Code of Professional
Responsibility:

A lawyer should maintain high standards of professional
conduct and should encourage fellow lawyers to do
likewise. . . . Because of his position in society,
even minor violations of law by a lawyer may tend to
lessen public confidence in the legal profession.
Obedience to law exemplifies respect for law. To
lawyers especially, respect for the law should be more
than a platitude.

In this regard, appellant's behavior is even more reprehensible because he
encouraged and facilitated his associate's participation in a criminal act.
V. Administration of Justice

Bar counsel asserts that the PCB erred in dismissing a third charge
against appellant, violation of Code of Professional Conduct, DR 1-102(A)(5)
(engaging in conduct prejudicial to the administration of justice). Upon
failure to file an appeal, "dismissal [of a charge] shall become effective."
A.O. 9, Permanent Rules, Rule 8(E). Bar counsel did not appeal the
dismissal and consequently cannot raise the issue now.

VI. Sanctions
Appellant argues that the sanction recommended by the PCB is too severe
in light of the facts of the case, mitigating circumstances, and lack of any
injury to clients. We disagree.
The purpose of sanctions is not punishment. Rather, they are intended
to protect the public from persons unfit to serve as attorneys and to
maintain public confidence in the bar. In re Calhoun, 127 Vt. 220, 222, 245 A.2d 560, 561 (1968). Sanctions also serve the goal of deterring others
from similar conduct. Shuminsky, 359 N.W.2d at 444-45; Florida Bar v. Lord,
433 So. 2d 983, 986 (Fla. 1983); Matter of Carroll, 124 Ariz. 80, 86, 602 P.2d 461, 467 (1979).
The PCB evaluated sanctions under the American Bar Association
Standards for Imposing Lawyer Sanctions. We have found these standards
helpful and have used them in arriving at attorney sanctions. In re
Rosenfeld, No. 89-513, slip op. at 10-11 (Vt. Nov. 1, 1991). Under Standard
3.0, factors relevant to deciding sanctions include: (a) the duty involved;
(b) the lawyer's mental state; (c) the actual or potential injury; and (d)
any aggravating or mitigating factors.
Using this scheme, the PCB analyzed appellant's actions under Standard
5.0 as a violation of a duty owed to the public. See Introduction to
Standard 5.0 ("The public expects the lawyer to be honest and to abide by
the law; public confidence in the integrity of officers of the court is
undermined when lawyers engage in illegal conduct."). The board then looked
at sanctions recommended for this violation. Under Standard 5.11,
disbarment is an appropriate sanction when a lawyer engages in "serious
criminal conduct, a necessary element of which includes . . . the sale,
distribution or importation of controlled substances." The PCB rejected
disbarment because it found no "evidence to indicate that [appellant] was
engaged in commercial drug trafficking." Instead, it recommended
suspension, the appropriate sanction "when a lawyer knowingly engages in
criminal conduct which does not contain the elements listed in Standard 5.11
and that seriously adversely reflects on the lawyer's fitness to practice."
Standard 5.12. Possession of narcotics is one of the crimes most commonly
warranting suspension under this standard. Commentary to Standard 5.12.
Having determined that suspension was the appropriate sanction, the PCB
looked at mitigating factors, including character evidence in the form of
numerous supporting letters, see Standards 9.3, 9.32(g), and recommended a
six-month suspension, the shortest time provided by the standards. See
Standard 2.3 and Commentary (suspension should be no less than six months,
no more than three years; at least six months necessary to protect public
and adequately show rehabilitation).
In light of all the circumstances -- including the seriousness of the
attempted crime, appellant's involvement of his associate in criminal
activities, the pattern of behavior, the need to deter others from similar
behavior and restore public confidence in the legal profession, and the
extensive support from appellant's peers and acquaintances attesting to his
good character and professional competence -- we find that the board's
recommendation of six months suspension is appropriate.
The provisions of Administrative Order 9, as amended effective July 1,
1989, apply in this case. At the end of six months, appellant will not be
automatically reinstated; rather he must comply with Rule 20(B) and (D).
Specifically, he must show as a condition of reinstatement that he has "the
moral qualifications . . . for admission to practice law in the state, and
that resumption of the practice of law will be neither detrimental to the
integrity and standing of the bar or to the administration of justice nor
subversive of the public interest and that [he] has been rehabilitated."
Judgment that Frank Berk is suspended from the office of attorney and
counselor at law for a period of six months, beginning January 6, 1992 and
ending July 6, 1992, and thereafter until he demonstrates compliance with
reinstatement conditions contained in this opinion.
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

------------------------------------------------------------------------------
Concurring

No. 90-542

In re Frank Berk Supreme Court

Original Jurisdiction

September Term, 1991

Wendy S. Collins, Bar Counsel, Montpelier, for plaintiff-appellee

P. Scott McGee of Hershenson, Carter, Scott & McGee, Norwich, for
defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

Johnson, J., concurring. I do not agree that appellant's actions
involved moral turpitude and therefore do not join section III of the
Court's opinion.
Our case law defines a crime of moral turpitude as "one based on
conduct not only socially undesirable, but, by its very nature, base or
depraved." State v. LaPlante, 141 Vt. 405, 408, 449 A.2d 955, 956 (1982);
State v. Fournier, 123 Vt. 439, 440, 193 A.2d 924, 925 (1963). This
definition originated in the traditional distinction between crimes mala in
se and those mala prohibita. Id. See 1 W. LaFave & A. Scott, Substantive
Criminal Law { 1.6(b), at 45 (1986) (crimes mala in se are "wrong in
themselves; inherently evil"; those mala prohibita are "not inherently evil;
wrong only because prohibited by legislation"). Crimes of moral turpitude
are mala in se, that is, acts that, even without the added stigma of being
criminalized, are, in themselves, morally repugnant. See Black's Law
Dictionary 865 (5th ed. 1979) (crime malum in se is "immoral in its nature
and injurious in its consequences, without any regard to the fact of its
being noticed or punished by the law of the state").
Although courts have had difficulty classifying which crimes involve
moral turpitude or are "bad in themselves," crimes so classified are
generally characterized by an attempt to achieve personal gain or
satisfaction by exploiting or injuring others. See LaFave & Scott, supra,
at 45-48. Thus, murder, Black's at 865, and crimes "dangerous to life or
limb," LaFave & Scott, supra, at 45-46, are included, as are theft crimes,
crimes of dishonesty, fraud and deceit, commercialized vice crimes, bigamy,
and rape. See generally, Note, Crimes Involving Moral Turpitude, 43 Harv.
L. Rev. 117 (1930). I have difficulty putting possession of cocaine in the
same category as these other crimes or labeling it "immoral in its nature."
Society's attitudes toward drugs and drug use are, at best, equivocal.
Our lives are filled with a plethora of wonder drugs. Many, such as
tranquilizers and stimulants, are mind-altering, and yet they are used by
millions of Americans every day. Alcohol and tobacco, though highly
addictive and physically debilitating, are tolerated despite their huge
social costs. They support multi-billion-dollar industries, and acceptance
of their use is deeply ingrained in our collective life style. Street drugs
-- marijuana and cocaine -- may be black sheep, but they are members of the
same family.
Recognizing cocaine's potential to harm both the user, and indirectly,
others, society may take all reasonable steps to eliminate its use,
including making it illegal. But, identifying drug abuse as a social
problem does not render possession of cocaine immoral, any more than
alcoholism renders any and all drinking immoral.
I do not agree with the majority that more than possession is at issue
here. Appellant attempted to purchase approximately six grams of cocaine.
He collected half the money for the buy from his colleague and intended to
share the drug with him. This transaction did not involve trafficking:
appellant had no profit motive. Moreover, appellant should not indirectly
be held responsible for the actions of his associate nor should the
associate be seen as a victim. There is no evidence that the associate was
anything other than a willing participant in the drug transaction. He is
also a lawyer, capable of knowing the consequences of his actions and
deciding for himself whether to become involved. The key indicia of moral
turpitude -- dishonesty, injurious consequences, personal gain -- are
absent. See In re Chase, 299 Or. 391, 403, 702 P.2d 1082, 1089-90 (1985)
(distinguishing between sale and trafficking offenses, which involve moral
turpitude, and possessory offenses, which do not).

Associate Justice

------------------------------------------------------------------------------
Concurring

No. 90-542

In re Frank Berk Supreme Court

Original Jurisdiction

September Term, 1991

Wendy S. Collins, Bar Counsel, Montpelier, for plaintiff-appellee

P. Scott McGee of Hershenson, Carter, Scott & McGee, Norwich, for
defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

Morse, J., concurring. Because I believe that "moral turpitude" is so
vague that it invites arbitrary interpretation and application and
inadequately warns what crimes are sanctionable as professional misconduct,
I do not join section III of the Court's opinion. I concur with the
remainder of the opinion.
The term is rooted in common law and was developed at a time when
concepts of religion and law were more closely interwoven and sin and crime
were virtually synonymous. Jordan v. DeGeorge, 341 U.S. 223, 237 (1951)
(Jackson, J., dissenting). Consequently, the term "assumes the presence of
[a] common conscience . . . of the community," Bradway, Moral Turpitude as
the Criterion of Offenses that Justify Disbarment, 24 Cal. L. Rev. 9, 21
(1936), based on fixed legal and moral concepts. But, as society has
increasingly become both more secular and pluralistic, there is less
consensus about what is immoral, especially in areas of "vice" -- sexual
relations, gambling, and drug and alcohol use. Without social consensus on
what is "moral," the term conveys little guidance to fathom what we mean by
it.
Today, moral turpitude is a compass with the directional needle
removed. We are left only the temptation to label behavior we find
personally repugnant "immoral," or, as in this case, simply to follow
without analysis the popularly held opinion vilifying drug use. See id.
(judge "may unconsciously mistake his own bias for an intuitive perception
of the common conscience"). The resulting decisions on moral turpitude are
unprincipled and contradictory, and exacerbate rather than cure the
vagueness of the term. See Jordan, 341 U.S. at 239 (examining fifty lower
court opinions applying "moral turpitude" and finding the "chief impression
from the cases is the caprice of the judgments"; "[i]rrationality is
inherent in the task of translating the religious and ethical connotations
of the phrase into legal decisions"). Crimes involving moral turpitude
might as well be all serious crimes committed by a lawyer.
Recognizing problems in defining moral turpitude, we have already
eliminated its primary use as the gauge for determining which crimes may be
used to attack a witness's credibility. See Reporter's Notes to the 1989
Amendment to V.R.E. 609(a) (labeling "moral turpitude" as "troublesome" and
"vague" and replacing it with "more precise and relevant standards for
determining the admissibility of prior convictions for impeachment"); see
also Reporter's Notes to now superceded V.R.E. 609(a) (questioning the
utility of categorizing crimes as mala in se and mala prohibita and
describing the apparently inconsistent case law on Rule 609 moral
turpitude). In our pre-1989 cases, we attempted to mitigate the vagueness
problem by tying moral turpitude to "testimonial reliability -- whether the
convicted person would regard lightly the obligation to tell the truth."
Id.
DR 1-102(A)(3) provides no such functional saving grace. Appellant
should not be sanctioned for departing from such an arcane and ill-defined
standard, although his conduct is sanctionable as conduct adversely
reflecting on his fitness to practice law and should be treated as such.
See ABA Model Rule of Professional Conduct 8.4(b) (eliminating moral
turpitude standard and defining misconduct as "a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects") and ABA Annotated Model Rules of Professional Conduct 353-
54 (1984) (moral turpitude standard was rejected because it had proved
"manifestly ambiguous [as] evidenced by the wide ranging interpretations
given it by the courts" and had been criticized by commentators "as inviting
subjective judgments of diverse lifestyles instead of focusing on the
lawyer's ability and fitness to practice law").
Criminal conduct "adversely reflecting on fitness to practice law" is
also vague, but the phrase invites less value-laden interpretation. I
appreciate the gravity of a lawyer's conduct when he travels out-of-state,
where he is less likely to be recognized, to purchase cocaine to satisfy his
and a colleague's appetite. A lawyer -- sworn to uphold the law and
expected to be a good example to society -- who does such a thing demeans
the practice of law and causes others to disrespect the law. On the other
hand, I have difficulty contemplating that the act of purchasing drugs for a
lawyer's use is so depraved that it rises to the level of moral turpitude.

Associate Justice

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