September 4, 2007
Impairment as Aggravation
We are accustomed to reading bar discipline cases where the attorney's mental or physical health is considered as a mitigating factor in determining sanction. A recent hearing board report from Illinois concludes that the attorney engaged in misconduct in a series of matters that would merit a one-year suspension. The lawyer was evaluated by a doctor and a neuropsychologist retained by the Illinois ARDC. The neuropsychologist administered a variety of tests and found impairment of problem-solving and strategizing skills. The attorney had "organizational difficulties" that were reflected in the testing and "took telephone calls during the interview relating to a real estate closing" which did not impress the testing doctor.
While the hearing board concluded that the misconduct was not the product of a mental condition or impairment, it found that the attorney's "diagnosed mental condition is....a concern which warrants a suspension until further order of court" and states that "we would not feel comfortable returning [the attorney] to the practice of law without a convincing demonstration that his conditions have been successfully treated and his mental acuity is such that he can adhere to the rules of professional conduct." Thus, it is recommended that the suspension continue until a court-ordered reinstatement.
Is it fair to impose a greater suspension for a mental condition that did not cause the misconduct? It's a valid question, and one I struggled with in a bar discipline case (In re Stone) that took over a decade to reach an entirely unsatisfying result. (Mike Frisch)
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