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In the Matter of Schuler (9/20/91), 818 P 2d 138
Notice: This is subject to formal correction
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THE SUPREME COURT OF THE STATE OF ALASKA
In the Disciplinary Matter )
) Supreme Court No. S-3986
BRYAN SCHULER, ) ABA FILE No. 88.010
Respondent. ) O P I N I O N
Proceeding from the Disciplinary Board
of the Alaska Bar Association.
Appearances: Bryan Schuler, pro se.
Stephen J. Van Goor, Bar Counsel, Anchorage,
for the Alaska Bar Association.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
RABINOWITZ, Chief Justice, dissenting.
MATTHEWS, Justice, dissenting.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bryan E. Schuler, while employed as a District Attorney
for the State of Alaska in Bethel, "enter[ed] the
Alaska Commercial Company Store in Bethel, and place[d]
several cassette tapes in a day-pack [he] was carrying.
[He] did intend to leave the store without paying for
Upon perceiving that store employees were observing
him, Schuler abandoned the day-pack. He went home
after a store employee told him not to return to the
store. Later, Schuler was requested to come to the
police station. After consultation with counsel, he
declined to make a statement.
A criminal complaint was filed against Schuler. It
alleged that he did "unlawfully, knowingly, and with
intent to appropriate and deprive the owner of
merchandise, conceal about his person unpurchased
merchandise valued in excess of $50.00 . . . ,"a class
A misdemeanor under AS 11.46.220(a)(c)(2). Schuler
entered a plea of no contest and was convicted of the
On December 4, 1987, imposition of sentence was
suspended and Schuler was placed on probation until
June 4, 1989, subject to the conditions that he
maintain good behavior, that he continue with
counselling as long as necessary, that he complete 100
hours of community service, and that he commit no
violations of the law. Schuler has since successfully
completed the terms of his probation, and the criminal
case has been dismissed.
On January 13, 1988, this court entered an order of
interim suspension of Schuler from the practice of law
pursuant to Alaska Bar Rule 26(a), on the ground that
the conviction involved a serious crime under Alaska
Bar Rule 26(b). We referred the matter to Alaska Bar
Association Discipline Counsel for the initiation of a
disciplinary proceeding. Interim suspension was to
continue until final disposition of the matter.
On December 26, 1989, Discipline Counsel and Schuler
stipulated that the conviction warranted that Schuler
be suspended from the practice of law for six months,
and that he take and pass the Multistate Professional
Responsibility Exam (MPRE). The stipulation was
accepted by the Disciplinary Board, which in turn
recommended that it be accepted by this court. We
rejected the stipulation "on the grounds that
[Schuler's] act appear[ed] to be a serious crime under
the Model Standards, Standard 5.11(a), for which
disbarment is generally appropriate." In the
Disciplinary Matter Involving Bryan E. Schuler, No. S-
3263 (July 12, 1989). We remanded the matter to the
Discipline Counsel and Schuler thereafter entered a
revised stipulation for discipline by consent, which
again was accepted by the Disciplinary Board, and in
turn recommended for acceptance by this court. The
revised stipulation recommends a two-year suspension
from the practice of law, effective January 13, 1988
(the date interim suspension was imposed), and requires
that Schuler take and pass the MPRE within one year of
this court's final order in this matter.
Thereafter this court, sua sponte, requested the
parties to provide it with statements "setting out all
criminal and juvenile convictions, criminal complaints
or arrests involving Mr. Schuler. The statement shall
include appropriate dates and dispositions for each
conviction, complaint, or arrest." In the Matter
Involving Bryan E. Schuler, No. S-3986 (August 17,
1990). Responses from both Schuler and the Alaska Bar
Association disclosed that in 1973, Schuler was
convicted of petty larceny by the District Court for
the State of Alaska.
Upon receipt of this information, we again remanded the
matter to the Disciplinary Board "so that the
Disciplinary Board may reconsider its consent to the
revised stipulation in light of respondent's 1973
conviction." On November 6, 1990 the Disciplinary
Board filed its Determination on Reconsideration. In
this document the Board advised that it "considered the
1973 shoplifting conviction of respondent. Because the
1973 conviction predates respondent's admission to the
Bar and is relatively dated, the Board determined not
to modify the stipulation." We now review that
II. APPROPRIATE SANCTION
In determining the appropriate sanction to be imposed,
we are not bound to accept the Board's recommendation,
but may exercise our independent judgment. In re
Buckalew, 731 P.2d 48, 51 n.7 (Alaska 1986). In this
matter we are "guided,"but not bound, by the ABA
Standards for Imposing Lawyer Sanctions (1986). See
Burrell v. Disciplinary Bd., 777 P.2d 1140, 1143
(Alaska 1989); Buckalew, 731 P.2d at 52 ("[W]e will
refer to the ABA Standards and methodology as an
appropriate model for determining sanctions for lawyer
misconduct in this state."). In determining proper
sanctions, the ABA Standards provide for a test under
which four questions are posed:
(1) What ethical duty did the lawyer
violate? (A duty to a client, the public,
the legal system, or the profession?)
(2) What was the lawyer's mental state?
(Did the lawyer act intentionally, knowingly,
(3) What was the extent of the actual
or potential injury caused by the lawyer's
misconduct? (Was there a serious or
potentially serious injury?)
(4) Are there any aggravating or
Buckalew, 731 P.2d at 52 (citing ABA Standards, Theoretical
Framework, ABA/BNA at 01:805-06). These questions are
addressed within a three-step methodology:
The initial step requires that we answer
the first three [questions] of the ABA test
set forth above. Next, we must look to the
ABA Standards to discern what sanction is
recommended for the "type" of misconduct
found in our initial inquiry. After
determining the recommended sanction, we must
ascertain whether any aggravating or
mitigating circumstances exist which warrant
increasing or decreasing the otherwise
appropriate sanction. See, ABA Standards,
Methodology, ABA/BNA at 01:803-04.
A. Step One: The Ethical Duties Violated,
the Mental State of Schuler, and the
Injury or Potential Injury.
1. Ethical duties
Schuler entered a plea of no contest to, and was
convicted of, a charge of concealment of merchandise,
which required as one of its elements an "intent to
deprive the owner . . . or . . . intent to
appropriate." AS 11.46.220(a). Schuler admits that he
placed the tapes in his day-pack "intend[ing] to leave
the store without paying for them." Such conduct
violates both Disciplinary Rule (DR) 1-102(A)(3) and
(4): "A lawyer shall not: . . . (3) Engage in illegal
conduct involving moral turpitude [nor] (4) Engage in
conduct involving dishonesty . . . ."1
The duties violated2 by Schuler were ones owed to the
public. "The public expects the lawyer to be honest
and to abide by the law; public confidence in the
integrity of officers of the court is undermined when
lawyers engage in illegal conduct. (Citing, inter
alia, DR 1-102A(3) and (4)). ABA Standards, Violations
of Duties Owed to the Public, 5.0, ABA/BNA at 01:828-
2. Mental state
This part of the test requires a determination of
Schuler's mental state with reference to his placement
of the tapes into his day-pack. According to the ABA
Standards, Schuler's mental state can be described in
descending order of culpability as intentional, knowing
Schuler's conviction is conclusive proof of all of the
elements of the crime for which he was convicted. See
Chadwick v. State Bar, 776 P.2d 240, 245 (Cal. 1989)
("A criminal conviction, including a plea of guilty, is
conclusive proof that the attorney committed all acts
necessary to constitute the offense.").5 As noted
above, one of those elements was an "intent to deprive
the owner of . . . or . . . intent to appropriate"the
tapes. AS 11.46.220(a) (emphasis added). For purposes
of Alaska criminal law, "a person acts 'intentionally'
. . . when the person's conscious objective is to cause
[the proscribed] result." AS 11.81.900(a)(1). This
definition is in "[a]ccord"with the ABA Standards'
definition of intent. Buckalew, 731 P.2d at 53 n.18.
Therefore, Schuler's conviction is conclusive proof
that he acted with intent as defined by the ABA
3. Injury or potential injury
The ABA Standards define "injury"and "potential
"Injury" is harm to a client, the
public, the legal system, or the profession
which results from a lawyer's misconduct.
The level of injury can range from "serious"
injury to "little or no"injury; a reference
to "injury" alone indicates any level of
injury greater than "little or no"injury.
. . . .
"Potential injury"is the harm to a
client, the public, the legal system or the
profession that is reasonably foreseeable at
the time of the lawyer's misconduct, and
which, but for some intervening factor or
event, would probably have resulted from the
ABA Standards, Definitions, ABA/BNA at 01:807.
To measure the injury, the standards require
consideration of the type of duty violated. Id. at
01:806. As previously indicated, the duty here was one
owed to the public. In light of Schuler's position as
District Attorney, his commission of a crime
undoubtedly undermined confidence in the legal
profession. The public most certainly expects
obedience to the law by those with authority to
prosecute others for its violation. It
undermines the foundations of our criminal justice system to
uncover a public servant violating the very statutes he
is entrusted with enforcing. By committing a crime,
Schuler violated his oath of office as District
Attorney for the State of Alaska, and weakened the
moral authority of the state to condemn other
violations of the criminal law. We therefore conclude
that Schuler's misdemeanor theft caused "serious"
injury under the relevant ABA Standards.
B. Step Two: Initial Determination of
In our initial reference of this matter to the Bar for
disciplinary proceedings, we stated that Schuler's
misconduct "appears to be a serious crime under the
Model Standards, Standard 5.11(a), for which disbarment
is generally appropriate." In the Disciplinary Matter
Involving Bryan E. Schuler, No. S-3263 (July 12, 1989).
Bar Counsel, however, maintains that Standard 5.11(b)
controls, and contends that suspension rather than
disbarment is the appropriate sanction for misdemeanor
theft. Standard 5.11 provides as follows:
Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal
conduct a necessary element of which
includes intentional interference with
the administration of justice, false
swearing, misrepresentation, fraud,
extortion, misappropriation, or theft;
or the sale, distribution or importation
of controlled substances; or the
intentional killing of another; or an
attempt or conspiracy or solicitation of
another to commit any of these offenses;
(b) a lawyer engages in any other
intentional conduct involving
dishonesty, fraud, deceit, or
misrepresentation that seriously
adversely reflects on the lawyer's
fitness to practice.
ABA/BNA at 01:829.
It makes no difference to this case whether Schuler's
misconduct is deemed to be "serious criminal conduct a
necessary element of which includes . . .
misappropriation, or theft"under subsection (a), or
"any other intentional conduct involving dishonesty . .
. that seriously adversely reflects on [his] fitness to
practice" under subsection (b). Under either
subsection, Standard 5.11 states that "[d]isbarment is
generally appropriate." Id.
It is worthy of note that the commentary to Standard
5.11 suggests that the authors' research focused on
felony convictions. The commentary states that "most
courts impose disbarment on lawyers who are convicted
of serious felonies." ABA/BNA at 01:829. Bar Counsel
argues that disbarment is an excessive sanction for
misdemeanor theft when compared to this court's rulings
in other disciplinary cases involving criminal
convictions.7 It is also worthy of note that Schuler's
conduct did not take place in connection with his
official duties as District Attorney, or in connection
with services performed in the practice of law.
Nevertheless, on the basis of the undisputed facts, we
conclude that the sanction of disbarment is the
reference point from which we begin our analysis of
aggravating and mitigating factors. In so concluding,
we note not only Schuler's misdemeanor conviction while
a member of the Bar, but also his misdemeanor
shoplifting conviction prior to his admission to the
C. Step Three: Aggravating and
"[A]fter making the initial determination as to the
appropriate sanction, the court [should] then consider
any relevant aggravating or mitigating factors."
(Emphasis added); ABA Standards, Theoretical Framework,
ABA/BNA at 01:807.9
Bar Counsel argues that none of the aggravating factors
are present in Schuler's case. However, Bar Counsel
believes that the following mitigating factors are
present: 9.32(a) absence of prior disciplinary
record;10 (c) personal or emotional problems;11
(j) interim rehabilitation;12 (k) imposition of other penalties or
sanctions;13 and (l) remorse.14
We agree with Bar Counsel's analysis.15 Other than the
two footnoted grievances filed but found wanting,
Schuler has no prior disciplinary record. His
misconduct in regard to the present case would appear
to be the product of a self-destructive motivation,
rather than a theft for personal gain. We further note
that Schuler has successfully completed the terms of
his probation, has lost his job as District Attorney,
and has demonstrated remorse for what he did.
It is instructive to compare the facts in our most
recent disciplinary case, Disciplinary Matter Involving
West, 805 P.2d 351 (Alaska 1991), with the facts of
Schuler's conduct. West involved the discipline of an
attorney who had fraudulently notarized a signature
which purported to be that of his deceased client when
in fact the signature was forged by his deceased
client's widow. The signature was made and notarized
at the attorney's suggestion to facilitate collection
of a settlement purportedly agreed upon by the client
and the state, which had not been apprised of the
client's death. The misconduct occurred in connection
with services performed by West in the practice of law,
for which he received a contingent fee. Based on a
conclusion that West violated ABA Model Standards 5.11
and 5.12, we affirmed the Disciplinary Board's
"determination that disbarment or suspension are
generally appropriate sanctions given the nature of
West's misconduct." West, 805 P.2d at 357-58.
We then considered aggravating and mitigating factors.
West's case, unlike Schuler's, involved several
aggravating circumstances, one of which we considered
"significant." Id. at 358. It also involved
mitigating factors, including personal and emotional
problems suffered by West and testimony as to West's
good character and reputation. Notably absent from
West's case, however, was any remorse, any effort to
rectify the consequences of his misconduct, or the
imposition of any other penalties or sanctions.
Nevertheless, we rejected the recommendation of the
Board in that case that West be suspended for two years
and imposed only a ninety day suspension on West,
though not without dissent.16 Id. at 360.
When we announced in Buckalew that we would be guided
by the ABA Standards for disciplining lawyers, we noted
that in part those standards are explicitly designed to
promote "consistence in the imposition of disciplinary
sanctions for the same or similar offenses." Buckalew,
731 P.2d at 52 (quoting ABA Standards, Section 1.3,
ABA/BNA at 01:809-10). While Schuler's misconduct may
be viewed as more serious than West's, in that it did
cause serious injury as defined by the ABA Standards,
the mitigating factors present in Schuler's case are
more numerous and more significant than those present
in West's case. Based upon a consideration of all the
above factors, we conclude that a sanction of not more
than two years suspension and passage of the MPRE, as
recommended by the Board, should be imposed on Schuler.
Schuler's misdemeanor theft constitutes a violation of
disciplinary rules prohibiting illegal conduct
involving moral turpitude, and conduct involving
dishonesty. Compliance with these rules is a duty that
all attorneys owe to the public.
Schuler acted with criminal intent, the most culpable
mental state according to the ABA Standards. Because
Schuler's misconduct directly and seriously
demonstrated an unfitness to practice law, he caused
"serious" injury or potential injury to public
confidence as described in ABA definitions.
Having considered the fact that Schuler's underlying
misconduct involves his second conviction of
intentional theft, and that his conduct as a member of
the bar violated ABA Standard 5.11, we might ordinarily
find disbarment to be the proper sanction. However,
given the relevant mitigating factors in this record,
we conclude that a significant period of suspension
from the practice of law is indicated. We therefore
hold that the stipulated and recommended sanction
should be approved.17
The Revised Stipulation for Discipline is APPROVED.
RABINOWITZ, Chief Justice, dissenting.
My difference with the majority's opinion and the
Board's revised recommendation is that I would commence
Schuler's two-year suspension from the date of the
issuance of this opinion, rather than from January 13,
1988 (the date of this court's interim suspension of
Schuler from the practice of law).
Schuler's misdemeanor theft conviction constitutes a
violation of disciplinary rules which prohibit illegal
conduct involving moral turpitude and dishonesty.
Compliance with these disciplinary rules is a duty that
all attorneys owe to the public.
Here Schuler acted with criminal intent, the most
culpable mental state according to the ABA Standards.
Schuler's misconduct clearly demonstrates an unfitness
to practice law and causes serious injury to the
public's confidence in the legal profession.
Given the relevant facts in this record, I conclude
that disbarment is an inappropriate sanction.
Nevertheless, I believe that a significant suspension
from the practice of law is indicated. In view of the
fact that Schuler's underlying misconduct involves his
second conviction of intentional theft, I would hold
that the stipulated sanction should be accepted with
the exception that Schuler's two-year period of
suspension from the practice of law should run from the
publication date of this opinion.
MATTHEWS, Justice, dissenting.
Section 5.11 of the American Bar Association Standards
for Imposing Lawyer Sanctions (1986) indicates that
disbarment is generally appropriate in cases where a
lawyer commits an intentional theft. Since this is
Schuler's second intentional theft, I view his case as
somewhat aggravated. Thus, I would follow the ABA
standards and order Schuler disbarred.
1. In re Preston, 616 P.2d 1 (Alaska 1980), implies that
misdemeanor theft involves moral turpitude. In
discussing the interim suspension rule, Bar Rule 26
(then Rule 23), we stated: "Certain misdemeanors,
dependent upon the moral turpitude of the attorney, are
defined as serious crimes." Id. at 5 (emphasis added).
Included in this list of serious crimes are felonies
and lesser crimes, "a necessary element of which . . .
involves . . . misappropriation [or] theft." Id. at 3
n.3. Likewise, the Supreme Court of Oregon has held
that "a misdemeanor conviction for the crime of theft
is a conviction involving moral turpitude." In re
Carstens, 683 P.2d 992, 996 (Or. 1984). This is in
accordance with other courts which have "defined moral
turpitude as acts which evidence 'a fraudulent or
dishonest intent.'" In re Wines, 660 P.2d 454, 456 n.4
(Ariz. 1983). See also Chadwick v. State Bar, 776 P.2d
240, 245 (Cal. 1989) ("Crimes which necessarily involve
an intent to defraud, or dishonesty for personal gain .
. . may establish moral turpitude.").
2. Conduct which results in a conviction of a serious crime
pursuant to Alaska Bar Rule 26(b) is another
independent ground for discipline. Alaska Bar R.
3. Similarly, Ethical Consideration 1-5 notes:
Because of his position in society, even
minor violations of law by a lawyer may tend
to lessen public confidence in the legal
profession. Obedience to law exemplifies
respect for law. To lawyers especially,
respect for the law should be more than a
4. ABA Standards, Theoretical Framework, ABA/BNA at 01:806
reads in part:
The most culpable mental state is that
of intent, when the lawyer acts with the
conscious objective or purpose to accomplish
a particular result. The next most culpable
mental state is that of knowledge, when the
lawyer acts with conscious awareness of the
nature or attendant circumstances of his or
her conduct both without the conscious
objective or purpose to accomplish a
particular result. The least culpable mental
state is negligence, when a lawyer fails to
be aware of a substantial risk that
circumstances exist or that a result will
follow, which failure is a deviation from the
standard of care that a reasonable lawyer
would exercise in the situation.
5. To hold otherwise would allow an attorney to relitigate
his or her innocence in a disciplinary proceeding. See
In re Kirschke, 549 P.2d 548, 549 (Cal. 1976). This is
implicitly precluded by Alaska Bar Rule 26(f), which
provides that in a proceeding following interim
suspension for a serious crime "[t]he sole issue to be
determined by the Hearing Committee will be the extent
of the final discipline to be imposed." (Emphasis
6. Furthermore, by Schuler's own admission, he concealed
the tapes in his day-pack "intend[ing] to leave the
store without paying for them."
7. The following is a partial summary of pre-Buckalew cases
relied on by Bar Counsel: In re Kernan, No. S-1390
(June 9, 1986)(disbarment for sale of marijuana, a
felony); In re Pittman, Nos. S-929/1076 (December 19,
1985)(disbarment for assault in the third degree on a
police officer, a felony); In re Preston, 616 P.2d 1
(Alaska 1980) (two-year suspension for conviction of
distributing cocaine to a minor, a felony); In re Webb,
602 P.2d 408 (Alaska 1979) (disbarment for conviction
of accessory after the fact to murder, a felony); In re
Robson, 575 P.2d 771, 782 (Alaska 1978) (one-year
suspension for aiding and abetting receipt of
ammunition by a convicted felon, a felony, and for
violation of order temporarily suspending attorney from
practice); Alaska Bar Ass'n v. Benton, 431 P.2d 146
(Alaska 1967) (disbarment for conviction of grand
larceny, a felony).
8. On September 6, 1973, Schuler was charged with petty
larceny, a violation of former AS 11.20.140, the
complaint alleging that he did "unlawfully take, steal
and carry away, with intent to permanently deprive the
owner thereof, . . . one (1) Canon Camera Case, . . .
." On September 10 he pleaded no contest to the charge
and was fined $50. He was then nineteen years old.
This offense was disclosed by Schuler on his
application for admission to the Alaska Bar Association
and on his application for a superior court judgeship
that became vacant in Bethel in 1986, shortly before
the incident discussed herein took place. Schuler was
one of two applicants, out of five who applied for the
judgeship, found qualified for the position by the
Alaska Judicial Council.
9. Aggravating factors "may justify an increase in the
degree of discipline to be imposed,"and include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the
disciplinary proceeding by intentionally
failing to comply with rules or orders of the
(f) submission of false evidence,
false statements, or other deceptive
practices during the disciplinary process;
(g) refusal to acknowledge
wrongful nature or conduct;
(h) vulnerability of victim;
(i) substantial experience in the
practice of law;
(j) indifference to making restitution.
ABA Standards, 9.21-.22, ABA/BNA at 01:841-42. Mitigating
factors "may justify a reduction in the degree of
discipline to be imposed,"and include:
(a) absence of a prior
(b) absence of a dishonest or
(c) personal or emotional
(d) timely good faith effort to
make restitution or to rectify consequences
(e) full and free disclosure to
disciplinary board or cooperative attitude
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical or mental disability
(i) delay in disciplinary proceedings;
(j) interim rehabilitation;
(k) imposition of other penalties
(m) remoteness of prior offenses.
ABA Standards, 9.31-.32, ABA/BNA at 01:842.
10. The disciplinary records of the Alaska Bar Association
reflect that previously two grievances were filed
against Schuler. One was dismissed and one was not
accepted for investigation. No prior discipline has
been imposed against him.
11. In his statement to the Disciplinary Board, Mr. Schuler
says, inter alia:
2. I was accosted by one of the store
employees and directed not to return to the
store. I left and returned home, awaiting
the next inevitable step in the process.
When requested to come to the police station
I sought the advice of my attorney and
declined to make a statement to the police at
3. Soon thereafter, I was suspended by
the State in my job as a prosecutor. I went
to Anchorage where I sought treatment from a
psychiatrist, Dr. Michael Bernzott.
Treatment by Dr. Bernzott helped me to
realize not only the wrongfulness of my
conduct, of which I was already aware, but
also the sources of my motivation to such an
act which, compared to my standing and
reputation in the community, seemed so
unreasonable. I came to understand that I
was creating intolerable strain for myself in
posing as perfect while suppressing
acceptance of my own normal weakness. This
eventually manifested itself in acts, such as
this attempted theft, which can only be
understood as self-destructive. Stealing was
a way to put myself in the way of punishment
for my pose. Once I understood the roots of
this way of thinking, I was able to come to
terms with things that I had a choice to do
or not to do. One of the things I became
truly free not to do was steal.
3. [sic] Nonetheless, I had put myself
in the way of punishment, and punishment was
awarded. I entered a plea of No Contest to
the charge of Concealment of Merchandise, and
consequently was terminated by the Department
of Law, ending a budding career to which I
had totally devoted myself under trying
conditions for over five years. That was not
unexpected, but was still very painful
4. I also felt acutely the shame
associated not only with the punishment, but
also the knowledge of my colleagues of my
wrongful act. This was especially ash in my
mouth because I had recently put myself
before the Bar as a candidate for judicial
office and had attained the highest ratings
for professional integrity by my peers.
6. I acknowledge the wrongfulness of
my conduct and recognize that bitter
consequences flow from it. I know now why I
acted as I did and, armed with that
knowledge, know that I will not so act again.
I cannot make the events other than as they
are, but I also know that I can, in time,
demonstrate to the Bar and the judiciary that
the credit I was once given for integrity can
be regained, if given the chance.
12. See footnote 11.
13. On Schuler's plea of no contest to a violation of AS
11.46.220(a)(c)(2), he was found guilty. Imposition of
sentence was suspended and Schuler was placed on
probation for a period of one and one half years on
good behavior, ordered to continue counselling as long
as necessary, complete 100 hours of community service
work within one and one half years and provide proof
thereof to the court, and not violate the law. He
successfully completed the terms of his probation and
the case against him dismissed.
14. See footnote 11.
15. Arguably the remoteness of Schuler's prior offense could
be a mitigating factor under the guidelines. The Board
did not so argue. However, the Board did consider the
prior offense in determining whether to modify its
Revised Stipulation for Discipline. It declined to do
so "[b]ecause the 1973 conviction predates [Schuler's]
admission to the Bar and is relatively dated."
16. Justices Burke and Compton would have ordered West
17. The Revised Stipulation for Discipline was approved by
an order entered by the court on April 1, 1991, with "A
written opinion [to] follow." The practical effect of
our approval is that Mr. Schuler will have been
suspended in excess of three years and two months.
Were Justice Rabinowitz's position to have prevailed,
the suspension would be in excess of five years and