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In a decision that will fundamentally change the way the State Bar of Texas punishes some lawyers, the Texas Supreme Court has ruled that a lawyer’s conviction for possession of a controlled substance is no longer grounds for an automatic license suspension or disbarment. The opinion also questioned whether such an offense is a “crime of moral turpitude.” The June 21 opinion in In the matter of Paula Ann Lock, written by Justice Deborah Hankinson, found that a lawyer convicted in a possession case will no longer be subject to compulsory discipline by the state Bar’s Board of Disciplinary Appeals (BODA). Instead, such cases will be sent to local grievance panels, where the facts of each offense will be considered and lesser punishments could be assessed. In the 6-2 opinion, Hankinson was joined by Chief Justice Thomas Phillips and Justices Craig Enoch, James Baker, Harriet O’Neill and Wallace Jefferson. Paula Ann Lock, who, according to her attorneys, was a board-certified family lawyer who practiced in Denton County, Texas, was convicted of possession of a controlled substance, a third-degree felony, and received an automatic license suspension from the Bar, according to the opinion. According to the State Bar of Texas, her license was suspended in 1999. “We recognize that possession of a controlled substance may adversely affect a lawyer’s ability to practice honestly and effectively,” Hankinson wrote. “However, keeping in mind … the fact that we determine if a crime is one of moral turpitude by looking solely to the elements of the offense, we cannot say that the elements of Lock’s offense mandate the legal conclusion that every attorney guilty of that offense is categorically unfit to practice law.” Lock represents a departure from the high court’s attitude toward lawyers convicted of possessing illegal drugs. A few lawyers involved in the rehabilitation of addicted attorneys praise the decision. The Bar estimates that anywhere from 10,000 to 15,000 of the 65,000 lawyers in the state have alcohol or drug addictions or mental illnesses that impair their performances. But Lock provoked a sharp dissent among the court’s most conservative justices, who believed the majority opinion bends the Bar’s rules and ignores the court’s precedents. “Apparently, the court now deems the disciplinary rules too harsh. But the rules must be applied as they are currently written,” wrote Justice Priscilla Owen in a lengthy dissent joined by Justice Nathan Hecht. “The consequences of today’s decision are significant for the public,” Owen wrote. “After today, a lawyer who is convicted of a felony for possession of cocaine may be allowed to continue to practice law with a private reprimand as the only consequence to his or her professional status.” Owen pointed out that the court upheld the compulsory discipline of a lawyer convicted of felony cocaine possession in 1993′s Santos v. Board of Disciplinary Appeals. “It will be possible for a lawyer to represent clients without telling them that he or she is currently serving a sentence for felony possession of a controlled substance,” Owen wrote. VICTORY OVER ADDICTION Stephen Marsh and Mark Perdue, two attorneys with Dallas’ Zisman Law Firm who represented Lock in her appeal, say the high court’s ruling couldn’t have happened to a nicer or more deserving person. Lock, who declines to comment for this article, was in recovery and had quit the practice of law to take care of her dying mother when police found a small amount of cocaine during a search of her home, Marsh and Perdue say. Lock pleaded guilty to possession of a controlled substance, the opinion noted, and she received deferred adjudication for six years. Marsh says Lock believed she would not lose her license. Instead, the Bar automatically suspended her license for six years, the length of her deferred adjudication. According to Texas Bar disciplinary rule 1.06 (U), a “serious crime” conviction that requires compulsory discipline includes “barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement, or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy, or solicitation of another to commit any of the foregoing crimes.” Lawyers convicted of such crimes automatically are referred to BODA where the only options the board has — after confirming a “serious crime” occurred — are to suspend the lawyer’s license or disbar the lawyer. Marsh and Perdue say they argued to the Supreme Court that there’s a big difference between a lawyer who steals and a lawyer who possesses cocaine. There’s nothing morally wrong in and of itself about owning or using cocaine, they say. “The point is, you can’t extrapolate from dabbling with cocaine that the person is a wretch,” Perdue says. “If the opinion had gone the other way, you would have seen a hideous mess,” Marsh says. “If it’s morally wrong to use a controlled substance … then it doesn’t matter if a doctor prescribed it or you got it on your own. And now it doesn’t matter” because of the opinion. For Bar disciplinary lawyers, the opinion may create some confusion over what a crime of moral turpitude is. “It might take fleshing out of future cases,” says Stephen Moyik, an assistant disciplinary counsel for the Bar. Consider this: A third DWI conviction is a felony; possession of cocaine is a felony. However, before Lock, cocaine possession would result in compulsory discipline; felony DWI would not. “Just personally, and I’m not speaking on behalf of the Bar, but I’ve always thought the distinction that’s made is one of intent,” Moyik says. “People don’t set out to get drunk and drive drunk. Whereas possession of a controlled substance is something you set out to do.” Moyik says he does not have any recent statistics on the number of lawyers who’ve had their licenses suspended for possession of controlled substances, but it has happened numerous times. Yet Marsh believes few lawyers will face Bar discipline with a set of facts that matches Lock’s. Often cocaine use leads to other misdeeds — such as stealing from a client’s trust fund — that require serious discipline, several disciplinary experts say. “It’s extremely rare for an attorney who’s using drugs and quit the practice of law and not hurt anybody,” Marsh says. Lock works as a paralegal in Dallas and hopes to get her license back soon, Marsh says. OTHER IMPLICATIONS Lock may also have implications on employment law, especially when employees challenge their dismissals for drug possession, one employment lawyer says. “I think this case is going to help lawyers who are dealing with poorly drafted employment contracts, where moral turpitude is not defined,” says Michael Maslanka, a Dallas employment lawyer. “There are a lot of badly drafted employment contracts out there. This case will be a boon to them.” The decision may also reopen the debate among Bar leaders about what to do with addicted lawyers — punish them or treat them, according to one former Bar president. “Should they be given the public trust to act as an officer of the court when they themselves are felons?” asks Frank Newton, dean of Texas Tech University School of Law, who served as Texas Bar president from 1997 to 1998. “It’s about public confidence in the system, and that issue will be hotly debated.” Debate or not, Newton concedes it’s unlikely the Bar would alter the disciplinary rules through a referendum, because it is difficult to muster the required 51 percent participation of members to change the rules. “Even though members of the Bar [may] think this decision is wrong, it’s unlikely that they will be able to do anything about it,” Newton says. Bar President Broadus Spivey doubts the Bar will change the disciplinary rules. “I don’t see anything that would require a change right now,” says Spivey, a partner in Austin’s Spivey & Ainsworth. “But it’s something the Commission [on Lawyer Discipline] is going to review to see if a change is in order.” Jeff Forrest Smith, a recovering cocaine addict who is active in Lawyers Concerned for Lawyers, a group that helps addicted lawyers get treatment, rejoices over the ruling. Smith, who says his license was suspended by the Bar in 1988 for six years after he stole $20,500 from a client to buy drugs, turned his life around through treatment. The Dallas personal-injury attorney later became a member of the Dallas grievance committee. Smith says he deserved harsh punishment for his actions while Lock did not. “I just think the rule didn’t fit the occasion here, and the rule wasn’t interpreted the right way,” says Smith. The disciplinary rules do not distinguish between felony drug offenses, Smith says. For example, the rules treat a cocaine possession conviction the same as a conviction for intent to distribute cocaine, he says. Smith advocates changing the rules so the punishment fits the offense. “But we got the next best thing,” Smith says. “A Supreme Court decision.”

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