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         [ ] Do Not Publish

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                                    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

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                               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.