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NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
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No. 95-0536-D
STATE OF WISCONSIN
: IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against DAVID V. PENN, Attorney at Law. |
FILED JUNE 4, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison, WI |
ATTORNEY
disciplinary proceeding. Attorney's
license suspended.
PER CURIAM. We
review the recommendation of the referee that the license of David V. Penn to
practice law in Wisconsin be suspended for two years as discipline for the
following professional misconduct.
While serving as Vilas county district attorney from 1987 through 1992,
Attorney Penn used marijuana and cocaine, for which he was subsequently
convicted, and acted as district attorney in respect to referral and
prosecution of nine persons who had used an illegal drug with him or had
personal knowledge of his illegal drug use.
In late 1993 and early 1994, Attorney Penn's use of marijuana and
cocaine resulted in a deferred prosecution arrangement. On one occasion, Attorney Penn discussed a
pending criminal matter with a defendant whose felony drug charge he was prosecuting
out of the presence of the defendant's attorney and without his consent.
We determine that the
recommended two-year license suspension is appropriate discipline to impose for
Attorney Penn's professional misconduct.
The seriousness of his criminal conduct in using illegal drugs is
exacerbated by the fact that it occurred in the context of his official
position as district attorney, a position of public trust in the legal system
to which the people of his county elected him.
His repeated contravention of the criminal law, which was widely known
in the community, caused significant and unjustified damage to the public's
perception of the integrity of law enforcement personnel throughout the
county.
Attorney Penn was admitted to
practice law in Wisconsin in 1986 and practiced and served as district attorney
in Eagle River. He has not previously
been the subject of a disciplinary proceeding.
He was suspended from membership in the State Bar in October, 1993 for
failure to pay membership dues, and that suspension continues. The referee in this proceeding, Attorney
Janet A. Jenkins, made findings of fact pursuant to the stipulation of the
parties.
In January, 1993, on his
guilty plea to five counts of possession of marijuana containing THC and an
Alford plea to one count of cocaine possession, Attorney Penn was found guilty
and convicted of six misdemeanors.
Sentence was withheld and Attorney Penn was placed on probation for
three years, with six months in the county jail with Huber privileges, and
ordered to perform 200 hours of community service.
While acting as district
attorney, Attorney Penn was involved in referral and prosecution in criminal
proceedings of nine persons who previously had used an illegal drug with him or
had personal knowledge of his illegal drug use. The referee concluded that Attorney Penn thereby represented his
client, the State, when that representation might have been or was materially
limited by his own interests, in violation of the conflict of interest rule,
SCR 20:1.7(b).[1]
In February, 1990, while at a
tavern, District Attorney Penn encountered the defendant in a pending felony
drug case and discussed the case out of the presence and without the consent of
the defendant's attorney. The referee
concluded that his doing so violated SCR 20:4.2.[2]
In February, 1994, after he
had left office as district attorney, Attorney Penn's blood and urine samples
taken following a traffic stop disclosed the presence of cocaine metabolite and
marijuana metabolite. He then was charged
with having possessed cocaine and he entered into a deferred prosecution
agreement.
In respect to the drug
possession conviction and the subsequent charge resulting in the deferred
prosecution agreement, the referee concluded that Attorney Penn committed
criminal acts reflecting adversely on his honesty, trustworthiness or fitness
as a lawyer in other respects, in violation of SCR 20:8.4(b).[3]
As discipline for Attorney
Penn's professional misconduct, the referee recommended a two-year license
suspension. The referee took into
account the aggravating factor of Attorney Penn's position of chief law
enforcement official in the county and the fact that his use of illegal drugs
frequently occurred in the company of persons subject to prosecution by his
office for non-drug criminal offenses.
The referee also acknowledged as mitigating circumstances Attorney
Penn's voluntarily having ceased practicing law in 1992 and his acceptance of
responsibility for his misconduct and genuine remorse for it.
We adopt the referee's
findings of fact and conclusions of law concerning Attorney Penn's professional
misconduct and determine that the recommended two-year license suspension is
appropriate discipline to impose for it.
We emphasize that in order to have his license to practice law
reinstated, Attorney Penn will have to establish, among other things, that his
conduct since the license suspension has been exemplary and above reproach,
that he has a proper understanding of and attitude toward the standards imposed
on lawyers and that he will act in conformity with those standards, and that he
safely can be recommended to the legal profession, the courts and the public as
a person fit to be consulted by others and to represent them and otherwise act
in matters of trust and confidence. SCR
22.28(4).
IT IS ORDERED that the
license of Attorney David V. Penn to practice law in Wisconsin is suspended for
a period of two years, commencing the date of this order.
IT IS FURTHER ORDERED that
within 60 days of the date of this order David V. Penn 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 David V. Penn to practice law in Wisconsin shall remain suspended until
further order of the court.
IT IS FURTHER ORDERED that
David V. Penn 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.: 95-0536
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
David V. Penn,
Attorney at Law.
_____________________________________
DISCIPLINARY PROCEEDINGS AGAINST PENN
Opinion Filed: June 4, 1996
Submitted on Briefs:
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS:
[1] SCR
20:1.7 provides, in pertinent part: Conflict
of interest: general rule
. . .
(b)
A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities to another client
or to a third person, or by the lawyer's own interests, unless:
(1)
the lawyer reasonably believes the representation will not be adversely
affected; and
(2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
[2] SCR
20:4.2 provides: Communication with
person represented by counsel
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.