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In re Marshall11/22/2000
with respect to an employee on account of egregious or criminal conduct, regardless of whether the employee is disabled . . . . We believe that it strains logic to conclude that [an employee's wrongdoing] could be protected under [the ADA] merely because the actor has been diagnosed as an alcoholic and claims that [his misconduct] was caused by his disability."). Marshall committed disciplinary offenses which also constitute criminal conduct, and the reasoning of the courts in Despears and Maddox applies with full force to this case.
III. CONCLUSION
" he purposes of attorney discipline are to protect the public and to preserve confidence in the legal system." In re Rentel, supra, 729 P.2d at 618 (referring to ABA Standards for Imposing Lawyer Sanctions at 23 (1986)); see also In re Reback, supra, 513 A.2d at 231; In re Steele, 630 A.2d 196, 200 (D.C. 1993). "This court has a constitutional duty in overseeing the Bar to insure that its members are fit to practice." People v. Reynolds, supra note 13, 933 P.2d at 1305 (quoting Busch, supra, 919 P.2d at 1119). Marshall does not meet this standard. We agree with Bar Counsel that "abuse of illegal drugs as a basis for leniency after a proven ethical violation [requiring disbarrment] is intolerable." Accordingly, Matthew J. Marshall, Jr. is hereby disbarred.
So ordered.
Wagner, Chief Judge, dissenting: The court holds that where an attorney=s misconduct would warrant disbarrment, addiction to cocaine attributable to the intentional use of that drug can not be used as a mitigating factor in determining sanction. This rule has some appeal because it is somewhat simple to apply and strongly condemns the criminal conduct in which an addict necessarily engages in order to obtain controlled substances to feed his addiction. However, as the Board on Professional Responsibility (BPR) points out, A t is not necessary or desirable for this Court to close the door in every case to consideration of the subject. In spite of the majority's effort to reserve the possibility of considering in mitigation of sanction a lawyer's Aefforts to rehabilitate himself from addiction to unlawful drugs, and conceivably even the addiction itself, the rationale underlying the court=s rejection of mitigation in this case applies in every case of addiction to illegal drugs, and therefore would seem to foreclose that possibility. In virtually all, if not all, instances a person addicted to controlled substances necessarily engages in illegal conduct to acquire the drugs while a member of the profession. In addition, drawing the line at Aintentional use, as the court does here, also nets virtually every case, accepting the rationale relied upon by the majority that, A at some point in time, while the choice still his, [an addict chooses] the path which ultimately [leads] to his cocaine addiction. See In re Rentel, 729 P.2d 615, 621 (Wash. 1986).
The issue raised by the BPR and the Lawyers Counseling Committee of the District of Columbia Bar (LCC) is not whether sanctions should be eliminated where a lawyer's misconduct is caused by his or her addiction to illegal substances, but whether the presumed sanction should be, and can be, tempered under the circumstances while maintaining the integrity of the profession and protecting the public from unethical or incompetent lawyers. Using a more flexible approach in addressing this complex issue, other jurisdictions seem to manage to do so. See, e.g., In re Phillips, 925 P.2d 435 (Kan. 1996); The Florida Bar v. Marcus, 616 So. 2d 975 (Fla. 1993); In re Rivkind, 791 P.2d 1037 (Ariz. 1990); People v. Geller, 753 P. 2d 235 (Colo. 1988); In re Winston, 528 N.Y.S.2d 843 (App. Div. 1st Dept 1988) (per
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