Opinion
No. 1533 Disciplinary Docket No. 3, No. 149 DB 2009.
October 3, 2011.
Attorney Registration No. 34322 (Allegheny County).
ORDER
AND NOW, this 3rd day of October, 2011, upon consideration of the Report and Recommendations of the Disciplinary Board dated April 15, 2011, it is hereby
ORDERED that William Floyd Conway is suspended from the Bar of this Commonwealth for a period of three years retroactive to February 3, 2010, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.
It is further ORDERED that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.
Mr. Justice McCaffery files a dissenting statement.
DISSENTING STATEMENT
I believe the circumstances of Respondent's delivery of narcotics, his history of aberrant behavior, and the lack of any mitigation, calls for a five-year period of suspension. Because a majority of the Court holds that a three-year suspension is sufficient, I respectfully dissent.
See Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989) (holding that an attorney's psychiatric disorder is an appropriate consideration as a mitigating factor in a disciplinary proceeding where the evidence supports a finding that the disorder was a causal factor in producing the professional misconduct.)
In this matter, Respondent was convicted of drug offenses after he delivered marijuana to a prisoner in an attorney-client meeting room in the Allegheny County Jail. Clearly, Respondent misused his professional status to ensure that the illegal delivery took place in an area of the prison that offers a greater level of privacy than an ordinary meeting room. There was no evidence presented before the Disciplinary Board that Respondent was under the influence of drugs when he committed his offenses, and the Board determined that there is no Braun mitigation because Respondent was not addicted to drugs or afflicted with any other psychiatric disorder that caused the professional misconduct.
In the case of Office of Disciplinary Counsel v. Perry Perrino, 18 Pa. D. C. 4th 490 (1993), Mr. Perrino was convicted of possession with intent to distribute cocaine. Like the Respondent in this case, Mr. Perrino delivered the controlled substance to another person, his wife's cousin, for personal reasons; he had no profit motive. Despite the existence ofBraun mitigation, Mr. Perrino was suspended by the Court for a period of five years, retroactive to the date of his temporary suspension. An apparently significant aggravating factor was that at the time Mr. Perrino committed the offense, he was waiting to assume a new position as an assistant district attorney, a position in which he would have had the duty to prosecute individuals for drug offenses similar to those he himself had committed.
Instantly, there is no Braun mitigation, and I view the level of professional misconduct here to be equivalent to that which Mr. Perrino committed. In both cases, the level of individual hypocrisy and reprehensible character is outrageous. Indeed, a colorable argument can be made that the hubris exhibited by Respondent here eclipses that exhibited by Mr. Perrino, who did not use his position as an officer of the court to facilitate his illegal distribution of narcotics.
Moreover, Respondent's instant infraction is only part of a larger pattern of aberrant behavior. In 2004, Respondent was arrested and charged with possession of crack cocaine and careless driving. Those charges were amended and Respondent ultimately pled guilty to disorderly conduct, which is not a "serious crime" as defined by the Disciplinary Rules. It also bears mentioning that in approximately 1976, while still a law student, Respondent entered a guilty plea to attempted sodomy and received a three-month sentence of incarceration in West Virginia. Although the sodomy statute at issue was repealed shortly after Respondent's conviction, in October 1977, Respondent was again arrested and convicted of soliciting a juvenile to perform an unlawful sexual act. Respondent's history bespeaks dubious and reckless character traits that are not easily subject to reform, particularly given that Respondent is 63 years of age. Accordingly, I believe a five-year suspension is warranted.