f/k/a archives . . . real opinions & real haiku

February 29, 2004

Mitigate This?

Filed under: pre-06-2006 — David Giacalone @ 9:59 pm

The lawyer disciplinary review board in New Jersey has had a running dispute with the State’s Supreme Court over the importance of addiction and the pressures of practice in the fashioning of sanctions for lawyer misconduct.  The board has consistently been more lenient than the Court believes is warranted.   

 

dice

 

As reported in the New Jersey Law Journal, on remand, the NJ DRB increased the ethics sanction imposed on attorney Edward Bowman, giving him a three-month suspension.  (Sorry, Addiction and Work Pressures Don’t Lead to Light Ethics Sentence, 02-16-04; free reg. req’d),   According to the article:


“Edward Bowman admitted that he neglected six clients. He also said he was an alcoholic burdened by depression, family problems and pressure at Vineland’s Gruccio, Pepper, DeSanto & Ruth to work harder. The partner lived in fear of missing billing goals that would cost him pay, but he was afraid to say no to more work, compounding his inertia.”


“He did not file required complaints or motions opposing summary judgment, resulting in irrevocable judgments against some clients. He did not inform two clients of settlements. In one case, he signed a client’s name to a release without consent.”

The “compassionate” Disciplinary Review Board originally recommended a reprimand and a rehabilitation program he had established under a therapist’s care.  But, the Supreme Court disagreed in 2001.  In an opinion dated Feb. 2, 2004, the repentant Board saw the light, concluding that the gravity of the misconduct was greater than the mitigating factors. 

exit  NJLJ adds that members of the DRB have also “made public pleas in recent years for relaxation of the automatic-disbarment-for-misappropriation rule for lawyers recovering from addiction and psychological woes.”  The Supreme Court has stuck to its guns, and I agree that lawyer-dominated discipline boards are often far too ready to sympathize with their colleagues and give light sanctions.  



  • Bowman’s lawyer disagrees, saying that “the system as a whole seems to lack a full appreciation of the level of pressure on solo and small-firm lawyers in an age of increasing complexity.”  

To my mind, the District of Columbia’s approach to factoring disabilities into the determination of an appropriate disciplinary sanction seems about right. (as described, with case citations, in this article, by Bar Counsel Joyce E. Peters)  The D.C. Court of Appeals has stated that “issues of disability and incapacity . . . can significantly affect the choice of an appropriate disciplinary sanction.”   For example, in the Kersey case, the Court showed that evidence of alcoholism could be considered, not in defense, but as a mitigating factor in a case involving serious ethical misconduct, and that evidence of rehabilitation was very important in determining the appropriate sanction. 

However, if the lawyer fails to establish that the disability is substantially related to the misconduct, the lack of a “but for” nexus to the misconduct makes the disability irrelevant   In re Lopes [770 A.2d 561 (D.C. 2001)], which included allegations of dishonesty and neglect in violation of a dozen rules, presents a prime example.  The attorney presented evidence of serious health problems, including depression and severe side effects from prescription medicine.”  


“vampire”  As Peters explains in her article, the hearing committee found that “Lopes’ various infirmities substantially caused all of his misconduct, including not only his neglect of his clients’ matters, but also his acts of dishonesty and forgery,” and recommended mitigating the sanction to a 60-day suspension stayed in favor of probation for one year with certain conditions (restitution and completion of a continuing legal education course).  However, the disciplinary board concluded (and the appeals court affirmed) that “the sanction should be mitigated, but only with regard to the neglect charges and related violations.” — it found no causal realtionship between the disabilities and the conduct involving dishonesty, saying:



“Dishonesty cuts away at the heart of the legal profession. We are not inclined to diminish the seriousness of that misconduct by relying on too tenuous a link between dishonesty and physical or psychological impairments. The physical and psychological impairments under which [the attorney] labored undeniably were extremely difficult. We agree with the Hearing Committee that the picture [the attorney] painted of what he felt and experienced for a number of years was credible and sympathetic. There is no evidence, however, that the physical and psychological impairments, separately or in combination, either rendered [the attorney] unable to understand that he was being dishonest or unable to behave otherwise. Absent such evidence, we cannot conclude that the ailments were “sufficiently determinative of his conduct” to support a Kersey defense.” (emphasis added) 

The court accepted the board’s conclusion that Lopes had presented sufficient evidence of rehabilitation and ordered Lopes suspended for six months, coupled with two years of probation, requirements for restitution, and compliance with other conditions prior to reinstatement.   That’s much fairer to the public than the original recommendation of a stayed 60-day suspension.



  • I also agree with the ABA Commission on Impaired Attorneys, that disciplinary agencies that take disability and rehabilitation into account to mitigate sanctions must establish monitoring programs to assure follow-through by the attorneys (Guiding Principle 6).  
  • See the GPSolo magazine “Bumps in the Road” issue (July/August 2001), for useful information on alcoholism, substance abuse, gambling, Internet addiction, adult attention deficit disorder, and other problem areas in the lives of lawyers.

P.S.  The Comments to the ABA’s Model Rule for Lawyer Disciplinary Enforcement, Rule 10, lists the following mitigating factors for imposing discipline.



“Mitigating factors include: absence of prior disciplinary record, absence of dishonest or selfish motive; personal or emotional problems; timely good faith effort to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and remoteness of prior offenses.”

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