People v. McPhee , 1986 Colo. LEXIS 683 ( 1986 )

VOLLACK, Justice.

In this case, we order that the respondent be suspended from the practice of law for a period of three years, and that he be assessed the costs of the disciplinary proceedings.

The respondent of this disciplinary hearing, Joe Gordon McPhee, was admitted to the bar of this court on October 1, 1971. He was licensed and registered as an attorney in the official records of the court, registration number 2802.

The respondent, by his answer to the complaint in the disciplinary proceedings, and by stipulation and testimony, admitted that on April 5, 1985, he pleaded guilty to the cultivation of marijuana, a class four felony, as charged in People v. Joe Gordon McPhee, case number 84CR21, San Miguel County District Court, and also to the unlawful possession of a controlled substance, psilocybin, a class three felony, People v. J. Gordon McPhee, case number 85CR02, San Miguel County District Court. The respondent testified that the offenses to which he pleaded guilty related to his lifestyle, and the evidence clearly established that the respondent was not trafficking or dealing in either cannabis or psilocy-bin.

The respondent testified in mitigation that he was opposed to the national policy of eradication of cannabis. He stated that he was cultivating cannabis indica, a unique afghan strain, in hopes of saving the strain. The board concluded that it appeared the respondent was more interested in cannabis from a horticultural viewpoint than from any other. The respondent’s testimony concerning the psilocybin (mushrooms) was that it had been gathered by friends and he was storing it for them to be used on halloween. Again, no evidence was presented to the board that the respondent was trafficking or obtaining profit from his possession of the psilocybin.

The respondent stipulated that his conduct violated C.R.C.P. 241.6(1), (2), (3), (5)¹; and C.R.C.P. 241.16 (attorney convicted of a crime). He also violated DR1-102(A)(1) and DR1-102(A)(6) of the Code of Professional Responsibility.² The record establishes the violation of the foregoing rules and the seriousness of the felony convictions by clear and convincing evidence. The hearing board of the Grievance Committee recommended that the respondent be suspended from practice for a nine month period.

The hearing panel of the Grievance Committee adopted the hearing board’s findings of fact and conclusions but rejected the hearing board’s recommendation for discipline. The majority of the panel, by a vote of five to three, recommended a suspension of one year and one day. The majority ruled that a lawyer convicted of a felony should not be reinstated without showing that he is rehabilitated and competent and, therefore, fit to practice law, pursuant to C.R.C.P. 241.22(b), 7A C.R.S. (1986 Supp.). When the matter was submitted to this court, we entered an order requiring the respondent to show cause why he should not be subject to more severe discipline. A response was filed in which respondent incorporated his previous arguments.

Although we consider the recommendation of the Grievance Committee and give it great weight, we reserve the right to exercise our own independent judgment in determining the disciplinary sanctions. People v. Fitzke, 716 P.2d 1065 (Colo.1986). The ABA Standards for Imposing Lawyer Sanctions provide guidance:

5.11: Disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or

(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.

5.12: Suspension is generally appropriate 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.

ABA Standards for Imposing Lawyer Sanctions, Standards 5.11 and 5.12 (1986).

The Joint Committee on Professional Sanctions comment on Standard 5.12 states in pertinent part:

Lawyers who engage in criminal conduct other than that described in above Standard 5.11 should be suspended in cases where their conduct seriously adversely reflects on their fitness to practice. As in the case of disbarment, a suspension can be imposed even though no criminal charges have been filed against the lawyer.

For the most common cases, involving lawyers who commit felonies other than those listed in Standard 5.11, such as the possession of narcotics, a three year suspension is appropriate. See In re Rabideau, 102 Wis.2d 16, 306 N.W.2d 1, appeal dismissed, 454 U.S. 1025, 102 S.Ct. 559, 70 L.Ed.2d 469 (1981). Here, the respondent pleaded guilty to one count of cultivation of marijuana, a class four felony, and to one count of unlawful possession of a controlled substance, psilocybin, a class three felony. The respondent in the proceedings stipulated to and admitted in testimony to the convictions.

Accordingly, given the severity of the ethical violations committed by the respondent, but considering the absence of previous discipline, the court orders that the respondent be suspended for three years from the date of the announcement of this opinion, and that costs in the amount of $927.81 be assessed against the respondent and paid to the Supreme Court Grievance Committee, 600 17th Street, Suite 500 South, Denver, Colorado 80202, within ninety days from the date of the announcement of this opinion.

DUBOFSKY, J., dissents.

1 . C.R.C.P. 241.6 states:

Misconduct by a lawyer, individually or in concert with others, including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship:

(1) Any act or omission which violates the provisions of the Code of Professional Responsibility:

(2) Any act or omission which violates accepted rules or standards of legal ethics;

(3) Any act or omission which violates the highest standards of honesty, justice, or morality;

(5) Any act or omission which violates the criminal laws of this state or any other state, or of the United States; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings, and provided further that acquittal in a criminal proceeding shall not necessarily bar disciplinary action;

2 . The relevant portions of the Code of Professional Responsibility read:

DR1-102 Misconduct.

(A) A lawyer shall not:

(l) Violate a Disciplinary Rule.

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