Office of Disciplinary Counsel v. Simon

ZAPPALA, Justice,

dissenting.

I dissent. It is apparent to me that the majority, by its actions today, is adopting a per se rule of disbarment based not upon an attorney’s fitness to practice law, but more upon those acts which one might personally abhor. I must question the propriety of a procedure whereby we focus solely upon the act and in so doing disregard the insight and recommendations of that body to which we have assigned the duty of investigating and recommending the proper action in a given disciplinary situation.

After a thorough review by the hearing committee and the Disciplinary Board, it was recommended that the Respondent be disciplined by a two-year suspension. The majority, however, chooses to disregard the findings and recommendations of that board and reaches a result contrary to the Board’s without offering any explanation as to why that body’s recommendation is inadequate. While I certainly do not challenge this Court’s right to proceed de novo in a disciplinary proceeding, which by law we are mandated to do, I do question the propriety of reaching a contrary result where there is no indication by this Court as *324 to the reasoning for the deviation from findings enunciated by the Board. Where we fail to express some reason for differing from the findings and recommendations of the Board, I question the continued vitality of the Board since we have effectively ignored all its work and have given no weight whatsoever to its recommendations. This is not only illogical, but flies in the face of the powers we have given to that body. See, Pa.R.D.E. 205, 208. This Court has reposed in the Board an area of expertise not unlike that of an administrative board. Its recommendations ostensibly are seasoned with the insights and experience gleaned from many prior disciplinary actions. In spite of that expertise, this Court, in arbitrarily choosing to deviate from the Board’s recommendations without setting forth its underlying logic, does a disservice to the members of our bar who look to this Court for some stable measure of guidance in conforming their conduct to the rules we have promulgated. Discipline arbitrarily imposed is not discipline at all and indeed fails not only its definition, but its very purpose as well.

In my review of this case, I have focused on the distinction between disbarment and suspension set forth in Office of Disciplinary Counsel v. John J. Keller, 509 Pa. 573 , 506 A.2d 872 , (1986) and have come to the conclusion that disbarment is not warranted in the instant case. Instead, I would suspend Respondent for the period recommended by the Board and allow him to resume his practice upon a demonstration by him of his fitness to continue the practice. I would do so for several reasons, the primary of which is that I choose to look at this case in the “totality of the circumstances” manner that this Court so readily applies to other areas of the law. In so doing,. I note that the Respondent’s actions neither concerned the use of his position as an attorney, nor were motivated by the chance of profiting upon the situation. Indeed, given the Respondent’s sorry state at the time the incidents took place, it is remarkable that he did not seize upon this opportunity and *325 parlay his connections and the availability of drugs into a profitable endeavor. These facts, combined with the exemplary work the Respondent had done in the past to help those people who could not afford legal help, indicates to me that this Respondent suffered a momentary lapse of character and does not possess an inherent flaw in his character which, if present, would make me prone to concur with my brethren and disbar this attorney. When this Court, as supervisor of the Bar of this Commonwealth, fails to perceive the difference between a momentary lapse of character, and a flaw which will affect not only the lawyer but the general public through its contact with him, we do a disservice to those we are duty bound to supervise and protect. While I certainly do not wish to minimize the seriousness of the criminal acts in which the Respondent was involved, I do not separate them from the character of the Respondent as it is reported in the record. Where there is a past history of competent and beneficial service to the profession, and the misconduct does not evidence a misuse of his profession or his clients, nor show an inherent flaw in his character, it should be this Court’s obligation to pursue rehabilitation for that attorney. In suspending the Respondent, we show the Respondent that we do not look with favor upon his indiscretion, but at the same time do not ignore his prior achievements. By allowing him to continue to remain in the fraternity of lawyers during the period of his suspension, we show that attorney that we have faith in his rehabilitation, and that we have not abandoned him because of his indiscretion. This should provide incentive for that attorney to reflect upon his deeds during the course of his suspension knowing that those who have placed their faith in his recovery will be watching his progress, ever vigilant of a breach of that trust.

For the reasons above stated, I would sustain the findings and recommendations of the Board.

FLAHERTY, J., joins in this dissenting opinion.