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In re Marshall11/22/2000
curiam). In Marcus, for example, in lieu of disbarrment, the Florida Supreme Court imposed a three year suspension, followed by three years of probation with drug testing, as a sanction for an attorney's misappropriation of client funds causally linked to his narcotic addiction. 616 So. 2d at 978. The court considered in mitigation that Marcus period of addiction was of short duration; that he had remained drug free for almost six years; that he recognized the need for treatment and promptly obtained it; that he took a role in helping other addicts; and that he made restitution. Id. The court further explained that:
he misappropriation of a client's funds is one of the most serious offenses that a lawyer can commit and, absent sufficient mitigating factors, compels the extreme sanction of disbarrment. . . . In this case we find that the mitigating factors of cocaine addiction, successful rehabilitation, the lengthy delay in resolving the matter, and the previous consent judgment warrant the imposition of less than the presumed discipline of disbarrment. Id. (internal citation omitted) .
Similar considerations guided the determinations in each of the cases cited above, resulting in less severe sanctions than might be otherwise indicated, with strict treatment and monitoring conditions, as briefly summarized in the margin. Nevertheless, in imposing sanctions, these courts have still addressed the goals of the disciplinary system of protecting the public, deterring other attorneys from similar misconduct, and protecting public and private rights. See In re Appler, 669 A.2d 731, 738 (D.C. 1995). The hard and fast rule which the majority adopts would eliminate consideration of the type of factors identified in Marcus, supra, which might support the imposition of a sanction of suspension instead of disbarrment followed by a lengthy probationary period with conditions established to assure rehabilitation. In my opinion, the courts of Arizona, Colorado, Florida, Kansas and New York have the more enlightened approach to addressing this complex issue, while protecting the goals of the disciplinary system. For these reasons, I respectfully dissent from the opinion of the court, and I would remand to the BPR for additional evidence and a determination of whether Marshall can show that he is substantially rehabilitated. See In re Stanback, 681 A.2d 1109 (D.C. 1996); In re Kersey, 520 A.2d 321 (D.C. 1987).
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