Disciplinary Board No. 45 DB 84
Joshua D. Lock, Harrisburg, for respondent.
Albert M. Nichols, Chief Counsel, Edwin W. Frese, Jr., Asst. Disciplinary Counsel-in-charge, Harrisburg, for petitioner.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Mr. Justice Zappala filed a dissenting opinion in which Mr. Justice Flaherty joined.
Today we must determine the appropriate disciplinary sanctions to be imposed upon a member of the bar of this Commonwealth who has been convicted of federal drug charges.
In early 1982, Roger Simon (respondent), an attorney licensed to practice law in this Commonwealth, acted as a middle man for the sale and purchase of four ounces of cocaine. A client of respondent's, Michael Hasselhuhn, known as Big Mike, asked respondent if he could find
someone to purchase cocaine from a friend of his, who was known as "Trout." Respondent obtained a purchaser and went with Big Mike to the drug purchase armed with scales, a testing kit (known as a "hot box") and approximately $7,800-$8,000 to purchase the cocaine, which respondent would then deliver to the purchaser, one Ian Cohen. At the time of the drug purchase, one-half ounce of the cocaine was taken by Big Mike, with respondent's knowledge, to be sold on the streets and a cutting agent was substituted in its place. Respondent then delivered the cocaine to the purchaser, Ian Cohen. Respondent received no profit from the transaction.
Approximately one and one-half years later, in October, 1983, respondent was confronted by the FBI concerning the drug purchase. Respondent discussed his involvement with the FBI and with Assistant United States District Attorney David Shipman, but refused to relinquish the name of the purchaser at that time because the government did not give him any "concrete benefit" for doing so.
A two count indictment was handed-down against respondent and a not guilty plea was entered. After jury trial, respondent was found guilty, on February 14, 1984, in the United States District Court for the Middle District of Pennsylvania of unlawfully, willfully and knowingly conspiring to import, distribute and possess with intent to distribute, and unlawfully, knowingly and intentionally possessing with intent to distribute, a Schedule II controlled substance, cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively.*fn1
As to count I, respondent was sentenced to three months imprisonment and a fine of $1,000.*fn2 As to count II, respondent was sentenced to a two year term of imprisonment, suspended, and placed on probation for two years, commencing on his release from imprisonment, subject to the condition that respondent perform 200 hours of community service work. After sentencing, respondent was subpoenaed to appear before a grand jury. It was only then, when his testimony could be compelled, that he divulged the name of the purchaser.
Upon notification of the conviction, a majority of this Court, by order dated May 21, 1984, immediately suspended respondent, pursuant to Pennsylvania Rule of Disciplinary Enforcement (Pa.R.D.E.) 214(d) which provides:
Upon the filing with the Supreme Court of a certified copy of an order demonstrating that an attorney has been convicted of a crime which is punishable by imprisonment for one year or upward . . . the Court may enter an order immediately suspending the attorney whether the conviction resulted from a plea of guilty of nolo contendere or from a verdict after trial or otherwise, pending final disposition of a disciplinary proceeding to be commenced upon such conviction.
The Office of Disciplinary Counsel (petitioner) then filed a petition for discipline against respondent on June 21, 1984. Petitioner charged respondent with violating the Code of Professional Responsibility which was adopted by this Court in 1974 and provides the minimum standards to which an attorney must adhere. Specifically, petitioner charged respondent with misconduct under Disciplinary Rule (DR) 1-102. That rule provides, in pertinent part, that a lawyer shall not "engage in illegal conduct involving moral turpitude;
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; engage in conduct that is prejudicial to the administration of justice; [or] engage in conduct that adversely reflects on his fitness to practice law." DR 1-102(A)(3), (4), (5) and (6), respectively. Respondent filed an answer admitting all the factual allegations.
To implement and enforce these standards for attorneys, this Court promulgated the Rules of Disciplinary Enforcement (Pa.R.D.E.). ...