Tuesday, January 29, 2008

Depression Did Not Cause Misconduct

An attorney admitted to practice in 1964 and who had never been previously disciplined was suspended for eighteen months by the Wisconsin Supreme Court. The misconduct involved the mishandling of three probate estates. In one matter, he had failed to file fiduciary income tax returns for more than 6 1/2 years, filed a false final accounting, failed to appear at hearings and made false statements to a court. Another matter involved similar issues where the estate was open for 9 1/2 years as a result of the attorney's inaction. The third case also involved a lack of diligence and failure to timely deposit estate checks.

As to sanction, the court stated:

" The referee considered a number of factors, including Attorney Losby's testimony demonstrating sincere remorse.  Although Attorney Losby testified as to his past medical condition of depression, the referee found that the medical evidence failed to indicate any connection between Attorney Losby's medical condition and his misconduct.  Also, while the absence of prior discipline may be regarded as a mitigating factor, the referee considered that Attorney Losby's misconduct caused harm to the heirs of the estates.  We agree that the seriousness of Attorney Losby's misconduct warrants license suspension and the recommended 18-month license suspension is necessary to protect the public and deter similar misconduct."

The finding that dishonest behavior is not caused by depression is worth noting, as some courts tend to find that such a condition explains, if not justifies, all the ethical lapses. The court also ordered restitution as part of the sanction. (Mike Frisch)

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