*1 CAVEAT In the Matter of the DISCIPLINE The Bell Tolls1
For Whom JEFFRIES, James L. OF prisoners change, public If want we at Law. prisoners ex-pris- attitude toward No. 17435. have some change. must We oners lines in community along those efforts of South Dakota. Supreme Court exceptions country few but with orga- and scattered and not well is thin 4, Argued 1991. Dec. participants nized and few of the 12, Aug. Decided 1992. trained. well Rehearing Sept. Granted 1992. 318. Delivery Justice at Collectively, moral bur- we take on a put person we behind walls
den when him or her give that burden is to change.
a chance
Delivery Justice at 322. WAREHOUSES, OR FACTO
MORE FENCES?2
RIES WITH permeate punishments
Rewards they people lives of all free prison inmates. not be denied to
should system is to the American
Central good performance is reward-
idea that poor performance not.
ed
Delivery Justice at 342. performance prison
Willie Williams’
good. good He deserves his time credits. that Justice
I am authorized to state II, joins on Issue this dissent
AMUNDSON law,
pertaining post to the ex facto point.
that he would reverse on
Nebraska,
book,
JUSTICE,
Lincoln,
University
Lecture at
1.
DELIVERY OF
2.
From
Nebraska,
Burger,
E.
Chief Justice of
United
Chief
Warren
December
Justice
States,
College William
Burger.
Warren E.
1969—
Co.,
Paul,
Publishing
Mary
Minnesota,
and West
St.
Press
City
at Association of the Bar
City, February
of New York
*2
Zieser,
Complain-
Tyndall,
(Board)
R.
for
The Disciplinary
James
Board
Disciplinary Bd.
ant
Bar of
investigated
State
South Dakota
matter and made a recommendation to this
Richardson,
Charles B. Kommann of
that
disciplinary
court
formal
action was
Groseclose,
Aberdeen,
Wyly,
Kornmann &
warranted and further recommended that
respondent
Jeffries.
suspended
be
Jeffries
days
law for 90
under various conditions.
MILLER, Chief Justice.
Upon receiving
recommendation,
Board’s
attorney discipline proceeding
court, pursuant
16-19-67,
to SDCL
di-
relating to James L. Jeffries. Since he has
rected it to file a formal accusation. Ulti-
generally
allegations against
admitted the
mately,
Judge Eugene
Circuit
L. Martin
him,
dealing
are principally
we
with the
appointed
was
referee. SDCL 16-19-68.
appropriate discipline
impose.
an evidentiary hearing,
After
Judge Martin
recommended to this court that Jeffries be
FACTS
disbarred.
Jeffries,
age
was admitted
In all proceedings before Board and
law in this state on December
1984.
Judge Martin, Jeffries admitted he was
Thereafter,
14,1985,
January
he went to
chemically dependent. He testified that he
Rapid
Dakota,
City,
work in
South
as a
voluntarily
had
a
entered
treatment facili-
deputy
attorney
Pennington
state’s
above,
ty. As we stated
he also admitted
County.
prosecuted
In that capacity he
a
he
possessed
that
had
and used cocaine and
great
cases, including
number of criminal
marijuana on
during
several occasions
14, 1987,
On
eases.
October
he left
time he was licensed to
law. His
attorney’s
high-
to take
state’s
office
a
testimony in
regard
quite
revealing.
job
paying
Rapid City Regional Hospi-
er
stated
using
that he
marijuana
was
tal.
weekly,2
December,
at and before
drug investigation
As the result of a
in (when
practice),
he was
admitted
until
City,
Rapid
officers
enforcement
con- December, 1989, approximately 50 to 100
19, 1990,
Jeffries on
tacted
March
concern-
per year.
selling
times
He admitted to
it to
alleged
ing
during
use
the time he
profit
friends for
(sharing).3
no
As to his
deputy
attorney.
was a
state’s
Jeffries
use,
cocaine
that he
testified
used it as
possessed
admitted that he had
and used
early December,
and had done so
marijuana hundreds of times and that he
Therefore,
aton
least 15
occasions.4
and shared
cocaine
at least 15
admission,
own
he committed several felo-
ultimately
occasions. Jeffries
entered into
nies
misdemeanors.
arrangement
plea
with the
Gen-
Although convinced it did not
granted
eral’s Office
was
affect his
whereunder he
immunity
as a
drug charges, except
use
on all
abilities
conceded
using
II
cocaine at
charge
possession
Class misdemeanor
the same time he was
marijuana,
prosecuting
exchange
coopera-
for his
others for
same conduct
tion.1 He entered a
me
guilty plea to the mis-
“made
nervous as hell.” He indicated
charge.
spent
stopped
demeanor
one
that he
use
cocaine in Octo-
ber,
paid
and he
jail
fine.
marijuana
small
and his use of
in De-
penalty
marijuana
larger quantities
1. The maximum
for Class II misde-
tion of
varies
charge
thirty days’
meanor
at that
was
time
felony,
from a Class 1
to a
misdemeanor
Class 4
fine,
imprisonment
county jail
$100
in a
or a
depending upon
quantity
involved. SDCL
22-6-2(2).
See SDCL
both.
22-42-7.
law, possession
South
Under
Dakota
of less
2.
law, possession
South
4.Under
Dakota
of co-
pound marijuana
than one-half
is a Class 1
felony punishable by
caine constitutes a Class 5
misdemeanor. SDCL 22-42-6.
years imprisonment
penitentia-
five
in the state
law,
3. Under
distribution of less
$5,000
ry;
may
imposed.
fine
be
also
See
than one-half ounce of
without con-
SDCL 22-42-5 and 22-6-1.
sideration
a Class 2 misdemeanor. Distribu-
proved them
cember,
attorneys
conduct has
He entered
treatment
whose
March, 1990,
re
with duties and
which was after
unfit to be entrusted
police.
sponsibilities belonging
contacted
to the office of
public may
protect
so
Martin,
Judge
hearing
vari-
At the
before
*3
wrong-doing.”
ed
further
Hendrick
from
attorneys, including
ous
co-workers
the
son,
141;
Disci
456 N.W.2d at
Matter
office,
of
attorney’s
police officers and
state’s
(S.D.
Stanton, 446
42
pline
N.W.2d
They
friends testified on Jeffries’ behalf.
of
1989).
good, ag-
all
testified that
had been a
prosecutor
former
gressive
and that his
right
important
It
to stress that
“[t]he
usage
impaired
not
abili-
granted upon
privilege
law a
judges
Three
testified
ties.
local circuit
satisfactory moral fitness
demonstration of
positively, by deposition,
prepar-
to his
general learning.
and
adequate legal
and
professionalism
in their courts.
edness
lawyer
privilege, must
To continue this
qualifications.”
maintain
fitness
DECISION
366 N.W.2d
Strange,
lawyers
All
this
admitted
light,
cir
this
we consider the
discipline
are
this court
subject
state
surrounding
drug usage in
cumstances
the
However,
and Board.
16-19-21.
SDCL
point
first
to the
that
this case. We
fact
only
authority
suspend
has the
court
spanned the
Jeffries’ conduct
effective
attorney’s
license to
revoke an
dates of both the Code of Professional Re
law in this
16-19-22. Under
state. SDCL
sponsibility
the
of
Rules
Professional
16-19-35,
discipline
various kinds of
SDCL
asserts,
find,
Conduct. Board
and we now
us, including disbarment,
are
available
following
that
violated all of the
placement
suspension,
probationary
on
sta-
portions thereof:
public
tus and
censure.
(Code
Responsi-
1
Canon
of Professional
recom
referee
has
bility) A Lawyer Should Assist in Main-
disbarment. “It is the settled rule
mended
taining
Integrity
Competence
of
findings
of
this State that ‘While
Legal
Profession.
conclusive,
they
referee are not
...
are
careful consid
nevertheless entitled to our
”
Discipline
Matter
eration[.]’
of
of
(S.D.1985)
497
Strange,
N.W.2d
Disciplinary Rule 1-102 Misconduct.
(quoting
Discipline
Theodo
Matter
(A)
lawyer
A
shall not:
of
of
sen,
(S.D.1981)). “If
303 N.W.2d
findings
supported by
referee’s
evidence,
they will
be disturbed
(3)Engage in illegal conduct involv-
preserve image of attor Rule Professional Conduct 8.4: neys, legal pro the bar association and professional It is misconduct for a law- Discipline Simpson, fession. Matter of yer to: (S.D.1991); 467 N.W.2d 921-22 Matter Hendrickson, purpose 141-42 “The proceedings (b) [Cjommit disciplinary punish is not to act re- criminal profession adversely lawyer’s but from to remove those flects hones- ty, comply state, trustworthiness or fitness as a law- with the laws of this how can yer in respects; expect we to follow them?
We recognize that Jeffries
is not
first
attorney to
illegally
drugs.
have
court, in
past,
has tried to send the
(d) [E]ngage
preju-
conduct that
message that this behavior
accept-
is not
justice[.]
dicial to
the administration
able and will not be tolerated.
Matter
See
tried
Jeffries testified that he first
mari-
Husby,
HENDERSON, Jeffries’s (concurring). doubt Justice (1962). Jaquith, 79 S.D. hun plea bargain disposed A of several Captain Rapid on the A detective offenses committed Jef- dred criminal testified that Jeffries City force both Police grant of resulted from the “use fries. This prosecutor.” Considering vigorous “awas immunity,” by the drugs, duplicity personal use of office, drug involvement on all General’s in his favor. Jeffries was hardly militates charge II except a misdemeanor Class “Equal Justice Under the applying These offenses possession marijuana. Law.” presence of Pen committed in the were prosecutors. nington County Jeffries was judge, appellate far removed When an prosecutor. of 1984 also a From December personali- scenario and the from factual fall of Jeffries used co late involved, debacle, reviews ethical ties separate occasions. admits caine preva- which objectivity surfaces December, using marijuana between perspec- A different in the trial arena. lent December, During witnesses, Testimony of attends. who tive period, year between friends, opinions of his at- fellow investiga per year.* drugA to 100 times life, torneys, shared his will not who Attorney General’s office tion *5 in a be enshrined law book a wall. Penning in prosecutors other flushed out join It and case will be. will those cold using coop County drugs and Jeffries ton Supreme lifeless the bound volumes criminality. exposing their Jef- erated state, jurisdic- library of this Court (he extensively fries entered alcohol tions, throughout and this law offices land. also) alcohol, drug treatment cen and There, on, years as the roll it shall be Hazeldon, Minneapolis, Minne
ter at
near
review,
judged
a vacuum of sterile
8, 1990,
April
and remained there
sota
by the
of the
heat
moment.
days.
July
August
In
and
Yankton,
at
had treatment
South
mitigate
our sanction due
We should
It strikes this writer that said
Dakota.
plea bargain.
plea bargain
to the
Jeffries’
had,
the
counseling, for
habits Jeffries
was
permitted to
should not be
distort
these
Jeffries, per
period of
this
a short
time.
law,
disciplinary proceedings.
point
In
record,
drug
sought
for his
assistance
Responsibility
Code of Professional
the
Rapid
Hospital
problems
City
at
abuse
the
does not mandate a conviction for a crimi-
argued
1990. This case was
in March of
act;
nay,
requires only
nal
the commis-
4, 1991.
this Court on December
before
sion of such
act.
drug usage,
Notwithstanding
above
the
performance,
prosecut-
Jeffries’
Was
during
prose
time
Jeffries was
and
a
cases,
ing drug
by
heavy
affected
his
re-
cases,
cuting drug
a host of witnesses
drugs?
liance
Some witnesses below
that his conduct
express
came forward
However,
suggest not.
in his
would
advo-
“appropriate,” “pro
in the trial court was
cacy to
he
establish that
is now “recov-
prepared.”
he was “well
fessional” and
ered,” he
Disciplinary
advised the
Board
testimony
re
suspected,
one
so
No
Court,
appointed by
this
Referee
flects,
prosecuting
he was
cases
that while
“thinking
clearly
he is
more
now than
trials,
jury
as an exam
(approximately
” Therefore, one’s deductive con-
using drugs or alcohol. But
ple), was
before.
is:
clusion
He must have been
Jeffries, himself,
influenced
shows:
the record
impaired,
degree, by
some
the ex-
heavy
pros
use and while
admits
usage
tent
of controlled substances.
literally
drug
A
hundreds
cases.
ecuted
mind
testimony
you,
And
these words come from his
preponderance estab
clear
Alcohol, marijuana,
own mouth.
and co-
very severe violations of several Can
lishes
Goodrich,
simply
In
caine
had to take some kind of a toll
re
78 S.D.
ons
Ethics.
nutshell,
(1959).
processes.
no
In
simply
There is
of mental
*
non-prose-
supplicates
mercy.
this Court for
al-
All of these criminal activities were
has
Answer,
concluding
ready
"mercy.”
Amended
received
cuted.
system
thereof,
ability
participate
justice
usage
and sale
we Americans live
was,
best,
drug
under a tremendous cloud.
corrupts
youth
culture.
It
our
suffer,
Assuming arguendo,
spawns
he did not
crime.
It attacks the weak
physical,
impairment
brings
strong.
or mental
destroys
down the
It
—what
responsibility
prac-
to the court that he
way
fabric
our American
of life. It
public?
pro-
ugly,
venomous,
ticed
As he
feeding
before—and
mean and
like a
general public
viper upon
ceeded
hold the
accounta-
the bodies of children and hu
drug usage,
beings
ble for
what of his own ac- man
who become victims of its
countability
public?
Conceptually,
lords,
dreaded forces.
It
creates
enters,
duplicity
making
millionaires,
this is where the
them
abounds
money
poisons
sys-
then
justice
spills
the criminal
into evil forces to commit further
wrongs upon
tem.
people. Jeffries,
innocent
using drugs as a
state
appears
great emphasis,
There
purchasing
others,
marijuana for
and then
herein,
advocacy
upon
the best inter-
distributing
friends,
them to
aided the
lawyer.
ests
Should we not more
culture. His role was to eradicate
properly address the consideration of the
exception
culture. With the
of a case
more,
public?
best interests
And
wherein an attorney aided in distributing
particularly,
the South Dakota Rules of
conspired
cocaine and
to distribute cocaine
Professional Conduct? It strikes me that
(sell cocaine),
Reut
of the State Bar of South
ter,
Matter of
image
legal profes-
Dakota and the
(S.D.1987) (con
Moeckly,
his first specific these Discipli- experts in the field who treat that he testified before noted Also, record shows “girlfriend” types of illnesses. nary he had a son and a Board illness, notwithstanding He testified was not married. further competent attorney “in at the working very was house” trial that he was Attorney’s Regional Hospital; was 35 Of- Rapid City Pennington County State’s age (The entered attorney when the Referee and three cir- years of fice. state’s Findings compe- and Conclusions of Law to Fact judges cuit court testified enough practice to young herein. none observed tence as a during his life- again in having law suspected that Jeffries legal profes- gain grace time and within or controlled sub- problem with alcohol stances.) course, saying sion. goes without Of approve did not of or that these witnesses apply to read- right for Jeffries has conduct, has condone Jeffries’ which re- years. after 5 He would be mission court, agreed brought him before this but pass examination anew and quired to a bar to if pose he did not a threat It could pass an Ethics examination. also in the law. allowed continue is, again, fit determined if he once then be an officer of the Supreme In a recent decision courts. Vermont, Berk, In re 602 A.2d Court (Vt.1991), admitted hav- Day of us can face a crisis. Most ing possessed on a number occa- cocaine living living day-to-day It is wears us out. involving an associate in the firm sions prevents Jeffries has or averts crisis. found in the use of cocaine. The court through, day-to-day living go some appropriate discipline under warranted family commitment. prove circumstances was a from these proves to himself to have the When period. six-month of law up character stand under tribula- regard The court held in this as follows: day, tions of each then both and this then past, can review his examine his Court Conduct PCB [Professional Board] circumstances, and have an educat- present American evaluated sanctions under the yet come. viewpoint of what is ed Imposing Association Bar Standards Lawyer Sanctions. We have found these *7 WUEST, (dissenting). Justice helpful and them in standards have used tice Miller asserts Amundson I agree with join in his the same. Chief Jus- writing majority opinion of Justice Rosenfeld, arriving [972] at 977-78. Under Standard at — attorney Vt. [ — sanctions. ] —, 601 A.2d In 3.0, re deciding sanctions in- factors relevant three-year agree suspension. to a would (a) involved; (b) duty clude: law- Although prefer disposition proposed I state; (c) yer’s po- mental the actual or Amundson, join I by Justice would Chief (d) injury; any aggravating tential three-year suspension Miller in a Justice mitigating or factors. avoid disbarment. scheme, Using analyzed the PCB
AMUNDSON,
(dissenting).
Justice
appellant’s actions under Standard 5.0 as
duty
justifies
public.
violation of a
to the
This is not a case which
owed
(“The
In this
See Introduction to Standard 5.0
maximum sanction of disbarment.
public expects
lawyer
age,
only
Dakota is
be honest
law; public
jurisdiction
encounter members
its
abide
confi-
have succumbed to
dence in the
of officers
profession who
lawyers
is undermined
en-
illness of addiction
controlled sub-
court
when
conduct.”).
illegal
in
clearly
gage
in this case
The board
stances. The record
drugs
then
at sanctions recommended
exposes that
was addicted to
looked
5.11,
Standard
for a considerable
violation. Under
and alcohol and
been
appropriate
It
such
disbarment
sanction
period of time.
is also evident that
lawyer engages
dependency.
when a
in “serious crimi- chemical
It is obvious that
conduct,
nal
a necessary element of
the bar
receives
benefit
whenever
sale,
which includes ...
distribution
individual
prob-
who has dealt with
such
importation
of controlled substances.”
lem chooses to
experiences
share his/her
in
The
rejected
PCB
disbarment because it
attempting
conquer
these insidious ill-
found
[ap-
no “evidence to indicate that
This, my opinion,
proof
nesses.
shows
pellant]
engaged
commercial
exceptional
of rehabilitation which is an
Instead,
trafficking.”
it recommended
compelling
mitigating factor which
suspension,
the appropriate
sanction
needs to be
considered
Other
case.
lawyer knowingly engages
“when a
in mitigating
are:
factors
obvious
Jeffries’
criminal conduct which does not con-
remorse, cooperation
disciplinary
with the
tain the elements listed in Standard
enforcement,
board and law
and the volu-
seriously adversely
5.11 and that
re- minous
professional
evidence of his
compe-
lawyer’s
prac-
on the
flects
fitness
tency.
tice.” Standard 5.12. Possession of nar-
recognized
court
rehabilitation as an
cotics is one of the crimes most common-
important factor to consider in disciplinary
ly warranting suspension under
Walker,
cases Matter
years, with In the Matter of DISCIPLINE following JOHNSON, year, on the condi- one sion after K. Gustav OF tions: Law. his chemical continue
1. James Jeffries No. 17424. program and dependency aftercare upon seek- compliance proof submit Dakota. Supreme Court of South ing reinstatement. one perform 2. James Jeffries Argued Dec. 1991. per during the month public service period at the direction suspension Reassigned May 1992. judicial cir- judge of the presiding Aug. Decided 1992. he resides. cuit where all in- reimburse costs Sept. 3. James Jeffries Rehearing Granted proceeding by the Disci- curred in this
plinary Board. case, sidelight to which needs
One mentioned, is the fact that one of hearing testified that at the
witnesses nurtured, used, and shared grown, This and others. with Jeffries
attorney candidly admitted this conduct pri- Disciplinary Board and received individual also reprimand. This
vate contesting judgment by not good
showed It is that the reha- discipline. obvious thirty-day depend- chemical of a
bilitation mitigation of á
ency program was more than it is in eyes in the the board
factor
this court. court, sepa found five * appropriate disci
rate decisions possession use of
pline involving cases
cocaine was law. Those cases and this case do enter showing facts a commercial
embrace If, fact, dealing
prise drugs. show, did disbarment would be so previ
singular option. Since this court has itself the standards men
ously aligned above, certainly I see no
tioned reason rule our of disci
deviate from established usage cases
pline controlled substance attorneys.
involving
*9
*
Kessler,
(S.D.1985);
Discipline
Discipline
Hopp, 376