PANEL REJECTS DRUG DEFENSE LAWYER SOUGHT LENITY BECAUSE OF COCAINE ADDICTION

The D.C. Board on Professional Responsibility, the arm of the D.C. Court of
Appeals that handles lawyer discipline, has recommended that cocaine
addiction not be treated as a mitigating factor in ethics cases.

The BPR's recommendation came in a sharply worded 13-page brief in a case
involving a lawyer who used the proceeds of a personal injury settlement
check to buy cocaine, then concealed his actions from the client and bar
counsel. If found liable, the lawyer could be disbarred. But he is arguing
that the court should impose a lesser punishment because he stole the
client's money as a direct result of cocaine addiction.

In 1987, the court ruled that alcoholism can reduce the punishment in D.C.
disciplinary cases. That reasoning was later extended to addiction to
prescription drugs and to depression. The board urged in this case that the
appeals court not apply that reasoning to cocaine.

The board's views in the case of Matthew Marshall do not have the force of
law, but will doubtless be highly influential in the court's eventual
ruling. The nine-member BPR concluded that "from the standpoint of the
victimized client, it makes no difference whether the culpable attorney is
addicted to cocaine or not," according to its unanimous recommendation
written by member Daniel Rezneck.

Marshall's law license has been suspended pending the outcome of the
disciplinary case. His lawyer, D.C. solo practitioner Steven Polin, says
Marshall has been in addiction recovery since 1995.

In its recommendation, the BPR drew a distinction between the 1987
alcoholism case, In re Kersey, and the Marshall case, pointing out that
cocaine, unlike alcohol, is an illegal drug. If a mitigation argument is
accepted, the BPR wrote, "a lawyer who commits a criminal act by possessing
an illegal drug and steals from his client, even if only to feed his habit,
would be better off in the disciplinary system than a lawyer who
misappropriates client funds but does not commit the additional illegal act
of possessing cocaine." The board said this "paradox" should not be
countenanced.

The board expressed its views in response to the court, which apparently is
prepared to take up for the first time the issue of extending Kersey to
cocaine. A hearing is expected early next year. Acting Bar Counsel Wallace
Shipp Jr., who prosecutes disciplinary cases before the BPR and the court,
says his office will soon file a brief supporting the BPR and that Ross
Dicker, a lawyer in his office, will argue the case before the court on
behalf of the BPR.

Polin says a cocaine mitigation doctrine would be "a logical extension of
Kersey. The fact that it's cocaine should not be a reason to deny someone
mitigation." He adds that in the Americans With Disabilities Act, Congress
"provided civil rights protections" to drug addicts. "That's the public
policy of this country," Polin says. And in an amicus brief filed late last
month before the Court of Appeals, the Lawyer Counseling Committee of the
D.C. Bar wrote that limiting Kersey to alcoholism would be contrary to that
case's reasoning and "arbitrary in its practical effect." Furthermore, in
the counseling committee's view, a decision against Marshall "would likely
have a serious adverse effect on the rehabilitation of lawyers."