Case Number
BAA 8536/07
Date Decided
3-24-2011
Decision Type
Appellate
Document Type
Full Opinion
Abstract
Facts: The Respondent, a lawyer, was convicted of drug possession in a criminal proceeding after pleading guilty to offences of possession of dangerous drugs for personal use, and the growing of a dangerous drug, in violation of sections 7(a), the end of 7(c), and 6 of the Dangerous Drugs Ordinance [New Version], 1973. The Respondent possessed a net weight of 25.68 grams of the drug cannabis, for personal use, and also unlawfully cultivated a cannabis plant weighing 5,480, and another weighing 3,420. The Respondent also admitted that he had been using cannabis for three years. As a result of the said conviction, the Respondent received a one year suspended sentence, conditional upon his not committing an offence in violation of the Ordinance for a period of three years, and was fined NIS 10,000.
Following the conviction, the Appellant applied to the District Disciplinary Court of the Tel Aviv-Jaffa District Bar Association, requesting that the Respondent be disbarred for a period of ten years, under section 75 of the Bar Association Law, 1961, as well as for his temporary suspension under section 78(b) of the Law.
The District Court ruled that the offence for which the Respondent was convicted was one of “moral turpitude”, as the term is construed in section 75 of the Law. The members of the Court concurred that the Respondent’s membership in the Bar should be suspended for a period of four years, of which 15 months would be effective suspension from practice, and the remainder would be conditionally suspended for three years, on the condition that he not be convicted of an ethics violation under the Law, in circumstances of moral turpitude. On appeal before the National Disciplinary Court, the majority ruled in favor of the Respondent, and his sentence was reduced such that he was suspended from membership in the Bar for a period of four years, all of which would be conditionally suspended.
The District Committee of the Tel Aviv-Jaffa District Bar Association brought an appeal of the leniency of the sentence before the Supreme Court.
Held (per Justice H. Melcer): Disciplinary punishment is not intended to impose additional punishment. Its focus is upon the moral flaw in a person’s conduct that may disqualify him from the legal profession. The main purpose of disciplinary sanctions is to send a message by the legal community, condemning morally tainted criminal behavior. The disciplinary aspect of a conviction of a lawyer for drug offences should, as a general rule, be expressed in a period of actual suspension from practice. A lawyer serves as an officer of the court. He is charged with aiding the court in the “pursuit of justice”. This status obliges a lawyer to act impeccably as a private individual, as even inappropriate conduct outside the framework of his work may blemish his professional standing, as well as that of the entire profession. It is, therefore, inappropriate that a lawyer convicted of drug related offences continue in the usual course of work as a lawyer without a substantial period of suspension from practice. The legislature included cannabis together with drugs that are considered “hard” in the definition of a “dangerous drug”. Therefore, as a rule, no distinction should be drawn between one drug and another in regard to a disciplinary conviction that should result in a suspension from practice.
The disciplinary punishment of lawyers is given to the jurisdiction of the disciplinary courts of the Bar Association. The Supreme Court will intervene in the decisions of the disciplinary courts when the disciplinary courts substantially deviate from the purposes of disciplinary punishment, or from the appropriate punishment threshold required for achieving those purposes. An entirely suspended sentence is not consistent with the appropriate punishment threshold.
Considerations of rehabilitation – that are, on occasion, appropriate for criminal punishment, and that are sometimes employed in cases of convictions for the personal use of “soft” drugs – must retreat before the public interest of protecting the legal profession, as such, and its necessary image as being opposed to drug use.
Keywords
Ethics -- Professional responsibility, Criminal Law
