Wednesday, March 12, 2008

Disability Or Disciplinary?

An Oklahoma lawyer who was charged with ethics violations in a series of matters admitted that he was addicted to methamphetamine. The Oklahoma Bar Association brought disciplinary, but not disability proceedings, against the attorney. The Oklahoma Supreme Court suspended the attorney for two years in the disciplinary cases but also invoked disability rules requiring that the attorney demonstrate sobriety as a precondition to reinstatement. The attorney's acknowledgment of his drug problem and unwillingness to treat it as a complete excuse was refreshingly candid:

"Respondent freely admits his addiction to methamphetamine. He described it as a 'huge catalyst' in the poor decisions that led to his financial problems and professional misconduct. At the same time, however, he refuses to attribute responsibility for his professional misconduct solely to his drug use, which he describes as an 'easy scapegoat.' He notes that his drug use began with his voluntary decision to engage in such conduct.

Respondent was questioned specifically about his habitual drug use by the General Counsel and by individual members of the PRT. Yet, there is nothing in the record to indicate that either the General Counsel or the PRT ever considered a Rule 10 [disability] suspension. Rather, the matter proceeded under Rule 6 [disciplinary proceeding] with a recommendation by the OBA and the PRT of a suspension of two years and one day.

It is clear from the record that Respondent has a serious drug problem. He admitted that he needs time away from the practice of law to deal with his drug addiction and financial issues. It is equally clear that at the time of the hearing he was unwilling and unable to properly and efficiently represent clients."

The court held that it had the authority to invoke the disability rules without a proceeding under those rules initiated by the General Counsel of the Bar. A dissent disagreed with this approach: "It is a prosecution decision as to what charges to bring and whether the charges are brought [under disciplinary or disability rules]. That is not a decision to be made by the Court...This Court is not a social service agency or a drug/alcohol rehabilitation clearinghouse. It is not our duty to direct or manage the rehabilitation of alcohol and drug addicted members of the Oklahoma Bar Association. It is our duty to adjudicate, discipline if necessary, and protect the public and the integrity of the judicial system." (Mike Frisch)

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