|
|
NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
|
|
|
No.
94-1770-D
STATE OF WISCONSIN : IN SUPREME COURT
|
|
|
|
In the Matter of Disciplinary Proceedings Against EUGENE S.
CALHOUN, Attorney at Law. |
FILED OCT
24, 1995 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
ATTORNEY disciplinary proceeding. Attorney's license suspended.
PER
CURIAM. Attorney Eugene S. Calhoun appealed from the
recommendation of the referee that his license to practice law be suspended for
three years as discipline for conduct that resulted in two convictions for
possession and delivery of cocaine and for numerous misrepresentations to the sentencing
court, the prosecutor and physicians concerning his use of cocaine and the type
of treatment for addiction he pursued.
We determine that the seriousness of Attorney Calhoun's misconduct
warrants the recommended license suspension and we make its commencement
retroactive to September 20, 1994, the date on which we summarily suspended
Attorney Calhoun's license, upon motion of the Board of Attorneys Professional
Responsibility (Board) when it filed the complaint in this proceeding,
following his felony conviction of two counts of delivery of cocaine. In addition, we impose on Attorney Calhoun
the conditions recommended by the referee to address his recovery from
addiction.
Attorney
Calhoun was admitted to practice law in Wisconsin in 1950 and practiced in
Madison. He has not previously been the
subject of an attorney disciplinary proceeding. In the instant proceeding, he agreed to plea no contest to the
Board's complaint in return for which the Board urged the referee to recommend
a one-year license suspension retroactive to the date of summary suspension as
discipline. Thus, the facts found by
the referee are not in dispute.
Attorney
Calhoun began using cocaine in the spring of 1984 during a social outing with
two clients and others who knew he was a lawyer. Between that time and the spring of 1987, he ingested cocaine on
most weekends. His drug use was known
by some cocaine dealers, who would call him at his law office or at his home to
arrange sales.
In
March, 1987, Attorney Calhoun was treated briefly and informally for cocaine
dependence but he declined his physician's recommendation that he enter a
formal treatment program. His weekend
use of cocaine continued and, beginning October, 1989, he was treated for two
months as an outpatient at the McBride Center for the Professional, where he
was diagnosed as having both a cocaine dependency and a dependency on percocet,
an opiate classified as a controlled substance, which had been prescribed for
pain. Treatment staff recommended that
he either enter inpatient treatment or gradually discontinue using percocet but
Attorney Calhoun refused to do so and his treatment was terminated.
Following
that treatment and continuing at least through May, 1992, Attorney Calhoun
began to inject cocaine intravenously and use the drug at his home, on some
occasions with another person. During
this time, he received medical treatment for intermittent infections in chest
wounds he told his physician were caused by a series of accidents. By December, 1986, medical staff observed
that the wounds might have been self-inflicted. In September, 1991, medical treatment uncovered parts of a needle
cap in Attorney Calhoun's infected right breast. Two months later, when he returned to the clinic with another infection,
an X-ray revealed the tip of a ballpoint pen in the same location.
The
clinic then told Attorney Calhoun it would no longer provide him medical care
because of the evidence that he had been inflicting chest wounds in order to
obtain prescriptions for percocet. The
clinic warned him of the danger of the injuries and of the possibility that his
self-infliction of wounds in order to get prescriptions for a controlled
substance might constitute a criminal violation. Notwithstanding the McBride diagnosis and the clinic's
determination, Attorney Calhoun testified under oath in September, 1994, during
the Board's investigation, "Nothing I have done with percocet is abuse and
nobody ever said that and that goes back to 1975."
Following
his arrest after a traffic stop in May, 1992, Attorney Calhoun was charged with
one misdemeanor count of cocaine possession.
While that criminal case was pending, Attorney Calhoun was interviewed
by a reporter of a national magazine who intended to publish an article about
the drug charge pending against Attorney Calhoun. The January, 1993 issue of the magazine included that article,
quoting Attorney Calhoun that the drug charge had been brought because of
"politics" and that the blood test on which it was based was
"nonsense." Attorney Calhoun
was quoted as saying, "I've never used cocaine. Never." Attorney
Calhoun acknowledged that the article quoted him correctly.
Following
his no contest plea to the possession charge, sentence was withheld and he was
placed on two years' probation. While
on probation, he continued to use cocaine, testing positive only two weeks
after he had signed probation rules requiring that he not use drugs. For that violation, he was jailed for nine
days. Upon his release, he entered a
treatment program as ordered and, after completing 89 days of the 90-day
program, he was discharged with a "poor" prognosis for long-term
recovery.
Six
months later, in mid-October, 1993, Attorney Calhoun began smoking crack
cocaine. At the same time, he sought
treatment from his physician for tenderness in his right chest and,
subsequently, with an infection in that location. He received several percocet prescriptions in the course of
treatment.
The
following month, Attorney Calhoun asked an acquaintance, who was a cocaine
addict, to inflict wounds to his chest for purposes of sexual
gratification. The woman did as
requested, expecting and receiving cocaine from him in return. While under oath during the Board's
investigation of this matter in September, 1994, Attorney Calhoun denied having
intentionally inserted any foreign matter into his chest or instructing or
asking anyone else to do so.
In
November, 1993, at the Board's request, Attorney Calhoun was seen by a
physician who was to prepare a report for the Board regarding his fitness to
practice law. Despite his positive test
for cocaine the preceding April and his use of crack cocaine in October,
Attorney Calhoun told the physician that he had stopped using cocaine in early
April, 1993 and that his frequent drug screens since then had been
negative.
Attorney
Calhoun's use of crack cocaine was detected by a drug screen on November 23,
1993, and he was jailed for four days for probation violation. Upon his release, he did not pursue treatment
but did return to his physician with another infection, for which he again
received a prescription for percocet.
On January 19, 1994, Attorney Calhoun smoked crack cocaine, possibly for
the last time, at his home. The
following day, a person who had been driving a car leased to Attorney Calhoun
was involved in an accident and a subsequent search of Attorney Calhoun's home
produced drug paraphernalia. Attorney
Calhoun was then arrested for probation violation and jailed. His probation was revoked the following
February.
In
early March, 1994, Attorney Calhoun was charged with two felony counts of
delivery of cocaine base and five misdemeanor counts of possession of drug
paraphernalia. Because of his earlier
conviction, he was charged as a repeater.
The felony counts were based on the statement of a citizen informant
that she had used cocaine base with Attorney Calhoun at his home at least twice
in November, 1993 and that on both occasions he gave her the cocaine base in
exchange for her inflicting wounds on his chest for purposes of sexual
gratification.
At
the sentencing hearing held in March, 1993 on Attorney Calhoun's earlier
misdemeanor possession conviction, the court imposed but stayed the maximum
one-year jail sentence with the condition that Attorney Calhoun enter an
inpatient treatment program. Attorney
Calhoun's lawyer had submitted a letter to the court from a friend of Attorney
Calhoun, a professor of psychiatry, offering to oversee his treatment in
California. In addition to the
treatment for addiction, Attorney Calhoun was to undergo surgery related to his
chronic infections and a letter presented to the court in the stipulation for
the stay of sentence indicated that Attorney Calhoun believed his medical
condition was related to a shrapnel injury received during the war.
At
about the same time, Attorney Calhoun pleaded no contest to the two felony
counts of delivery of cocaine base and the drug paraphernalia charges were
dismissed. The consent of the court in
which that case was pending was needed for Attorney Calhoun to go to California
for treatment and the presiding judge amended bail to include the provision
that Attorney Calhoun was permitted to go to California to participate in an
inpatient treatment program.
Notwithstanding
the court's specifications of inpatient treatment, the referee found that
Attorney Calhoun never entered an "inpatient" treatment program in
California. Rather, from April 19 to
June 2, 1994, he resided at a hotel-type guest facility on a university campus
and commuted daily to a chemical dependency center, where he participated in
its day-care program. While that center
offered an inpatient treatment program with 24-hour supervision, the specialist
treating Attorney Calhoun described him as a participant in the center's
"out-patient" program.
Attorney
Calhoun was discharged from day care treatment on May 23, 1994, and was under
no formal supervision until he moved to a sober living center 10 days
later. He returned to Wisconsin the
following month.
While
in California, Attorney Calhoun obtained several prescriptions for percocet
from the treatment specialist based on his representation that he needed the
medication for arthritis pain. The
prescribing physician believed he was Attorney Calhoun's only source of
percocet while in California, unaware that the psychiatrist who had referred
Attorney Calhoun had given him a prescription for the drug. One day after he returned to Madison,
Attorney Calhoun obtained a prescription for percocet from his physician for
pain in his chest.
Attorney
Calhoun never told the judges presiding in his two criminal cases, the
prosecutor or the sheriff's department that he had not been in an inpatient
drug treatment in California. He gave
the prosecutor a letter he had written in which he described himself as an
"inpatient trainee" at the treatment center. He also provided the prosecutor a printed
"daily schedule" on which he had written, "My schedule -- not
much open time." The schedule,
however, did not describe the daily routine of a day-care participant but
detailed the regulation of participants in the inpatient program, including
"wake up" and "lights out" times, a medication distribution
schedule, visiting hours and restrictions on telephone and television use.
During
a deposition in this disciplinary proceeding, Attorney Calhoun testified that
he was at the California treatment center "as an inpatient,"
asserting, "You never left the building except when you were taken to AA
meetings or NA meetings or CA meetings."
He also stated, "Every day that I was there I was under constant
supervision, absolutely. . . . There was still a fence around [the treatment
facility], a locked fence, very high.
You couldn't get out or anything like that." At the sentencing hearing held September 23,
1994 on his felony convictions, Attorney Calhoun made no response to testimony
and his attorney's assertion to the court that he had received inpatient
treatment in California.
Also
in connection with the sentencing hearing, letters to the court from the
referring psychiatrist and from the surgeon who evaluated Attorney Calhoun
referred to his having suffered a shrapnel injury from World War II. The sentencing judge, noting as a mitigating
factor that Attorney Calhoun had been "wounded in the service of his
country," withheld sentence on the felony conviction and placed Attorney
Calhoun on probation for three years, with six months in jail, concurrent with
his previous sentence, fined him $7520 and ordered him to perform community
service. In fact, Attorney Calhoun had
not received a shrapnel wound during the war.
On the basis of the foregoing
facts, the referee made the following conclusions. By his possession and use of cocaine and his delivery of cocaine
base, Attorney Calhoun engaged in criminal acts that reflect adversely on his
honesty, trustworthiness and fitness as a lawyer in other respects, in
violation of SCR 20:8.4(b).[1] He engaged in conduct involving dishonesty,
deceit and misrepresentation, contrary to SCR 20:8.4(c),[2]
by the following: (1) telling the
magazine reporter he had never used cocaine, knowing that statement was untrue,
(2) making material misstatements to the physician retained by the Board
regarding his drug use and drug tests, (3) breaching the stipulation, order and
bail conditions permitting him to leave Wisconsin to undergo inpatient
treatment in California and giving the prosecutor's office materials stating or
implying that he had spent time in such a treatment program and so testifying
under oath at his deposition, (4) representing to medical care providers, the
prosecutor and two circuit courts that a chest problem for which he underwent
surgery in California had been caused by a shrapnel injury, (5) denying under
oath that he ever intentionally inserted any foreign object into his chest or
requested anyone else to do so, (6) denying under oath that he had ever abused
percocet and stating that no one had ever said he had done so.
As
discipline for that misconduct, the referee recommended that the court suspend
Attorney Calhoun's license to practice law for three years, effective the date
of the court's order, and impose the following conditions on him during the
suspension: submission, as the Board
may direct, to random, periodic urine screenings for the presence of controlled
substances, including percocet to the extent it may exceed any prescribed
dosage, with reports of those tests furnished to the Board at its request;
participation in at least thrice-weekly outpatient 12-step programs, such as
Alcoholics Anonymous, Narcotics Anonymous or Cocaine Anonymous, with reports
verifying his attendance provided to the Board at its request; regular
counseling, including group counseling, by a certified alcohol and drug abuse
counselor.
In
making that disciplinary recommendation, the referee rejected the Board's
position that because of the mitigating factors of Attorney Calhoun's age, lack
of prior discipline, the criminal penalties imposed on him, and his poor
health, a one-year license suspension retroactive to the date of the summary
suspension should be recommended. In
addition to the seriousness of the misconduct, the referee considered numerous
aggravating factors, including that the felony convictions for drug-related
conduct occurred while Attorney Calhoun was on probation from a misdemeanor
possession conviction, his extensive, intense and increasingly serious drug use
for 10 years, his 20-year history of prescription drug abuse, his repeated
misrepresentations, some under oath and after his license to practice law had
been suspended, and the manner in which wounds were inflicted on him in order
for him to obtain prescription drugs.
Further,
the referee found no evidence during the course of the disciplinary proceeding
that Attorney Calhoun has acknowledged the seriousness of his misconduct or is
remorseful for it. Moreover, the
referee noted, he repeatedly rejected treatment opportunities and
recommendations, thereby establishing a pattern of failing to acknowledge the seriousness
of his drug addiction and make progress to remedy it. The referee observed that criminal convictions, jail confinement
and a summary license suspension have not been sufficient to deter him from
repeating and escalating his misconduct.
Contrary
to Attorney Calhoun's contention in this appeal, the referee gave appropriate
consideration to several mitigating factors, including his age, his poor health
and the lack of apparent harm to any of his clients. In the referee's opinion, the mitigating effect of those factors
led her to recommend a license suspension rather than revocation.
Attorney
Calhoun also argued that the misrepresentations he made concerning drug use and
the cause of his infections were nothing more than an aspect of denial of his
drug addiction and should not be considered separate misconduct. He further contended that he did not intend
to mislead by referring to his California treatment experience as inpatient
treatment. In that regard, Attorney
Calhoun appended to his brief and asked the court to consider in this appeal
facts that were not part of the record to which the parties stipulated and
which served as the basis of his no contest plea and of the referee's
report. The court has not considered
any facts or assertions made by Attorney Calhoun that are not contained in the
record in this proceeding.
None
of Attorney Calhoun's arguments has merit.
Moreover, we are unpersuaded by the arguments of the Board that the
protection of the public and the deterrence of other attorneys from engaging in
misconduct similar to Attorney Calhoun's can be achieved by a license
suspension of only one year, made retroactive to the date of his summary
suspension. The seriousness of Attorney
Calhoun's misconduct, its nature and extent, and his demonstrated need for and
difficulty in pursuing treatment and rehabilitation call for more severe
discipline -- the three-year license suspension recommended by the
referee. We make that license
suspension retroactive to the commencement of the summary suspension we ordered
at the outset of this proceeding, accepting the Board's position that
retroactivity would be appropriate in a case where, as here, the Board seeks
the summary suspension of an attorney's license following a criminal conviction
for conduct that would warrant a substantial license suspension but not
revocation.
IT
IS ORDERED that the license of Attorney Eugene S. Calhoun to practice law in
Wisconsin is suspended for a period of three years, commencing September 20,
1994.
IT
IS FURTHER ORDERED that Eugene S. Calhoun shall comply with the conditions
recommended by the referee and set forth herein.
IT
IS FURTHER ORDERED that within 60 days of the date of this order Eugene S.
Calhoun pay to the Board of Attorneys Professional Responsibility the costs of
this proceeding, provided that if the costs are not paid within the time
specified and absent a showing to this court of his inability to pay the costs
within that time, the license of Eugene S. Calhoun to practice law in Wisconsin
shall remain suspended until further order of the court.
IT
IS FURTHER ORDERED that Eugene S. Calhoun comply with the provisions of SCR
22.26 concerning the duties of a person whose license to practice law in
Wisconsin has been suspended.
SUPREME COURT OF WISCONSIN
Case No.: 94-1770-D
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
Eugene S. Calhoun,
Attorney at Law.
______________________________
DISCIPLINARY PROCEEDINGS AGAINST CALHOUN
Opinion Filed: October 24, 1995
Submitted on Briefs: September 7,
1995
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For Eugene S. Calhoun there were briefs by Jack
R. DeWitt and DeWitt, Ross & Stevens, S.C., Madison.
For the Board of Attorneys Professional
Responsibility there was a brief by Elsa P. Green, counsel, Madison.