Tuesday, February 5, 2008

Stressful Circumstances Insufficient To Establish Mitigation

It is difficult not to have some sympathy for a lawyer who was indefinitely suspended in Massachusetts based on "the report of a special hearing officer, who recommended that [the attorney] be indefinitely suspended for the serial, intentional misuse of the funds of three clients." According to a memorandum of the Board of Bar Overseers, the attorney had had a successful private practice,taught a variety of law school courses, and had a significant record of service to the bar. The attorney had offered evidence that the misconduct was committed while in a "fugue" state as a result of the following circumstances:

"The following is a chronological list of the personal difficulties and stressors the respondent experienced during the relevant time: (1) on June 17, 2003, while boarding a gambling boat, the respondent fell, shattering her tibia and severely injuring her knee, requiring extensive surgery; she returned home about a month later, requiring a home health aide for assistance; she had to live on the first floor of her house and was confined to a wheelchair for about a year; she had to take painkilling medication, including narcotics, for a substantial period of time; (2) on her return from the hospital in July 2003, she received a notice of foreclosure on her home; (3) that same month she also received notice of an action to ban her dogs from the city due to their barking and lack of care during her hospitalization; (4) in September 2003, after removal of some lymph nodes, the respondent was diagnosed with non-Hodgkin’s lymphoma; (5) in January 2004, the respondent received another notice of foreclosure; (6) around the same time, the respondent was advised that her ninety-seven year old mother, who had lived with her, would have to be placed in a nursing home due to the respondent’s inability to care for her; and (7) in February 2004, the respondent had knee replacement surgery."

The special hearing officer rejected the suggestion that the misuse of client funds was not intentional and found that the real cause of the misconduct was "long-standing financial problems..." that were exacerbated by a "history of gambling significant sums..." The officer also rejected expert testimony offered in mitigation of sanction. An aggravating factor was an earlier admonition "for borrowing money from a client during a trip to a gambling casino." (Mike Frisch)


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