Wednesday, July 16, 2008

Bipolar Condition Causes Misappropriation, Disbarment Not Imposed

In an important decision involving the sanction for misappropriation caused by bipolar disorder that is presently controlled by medication, a 4-3 decision of the Missouri Supreme Court held that an indefinite suspension with right to apply after three years, rather than disbarment, was the appropriate disposition. The dissenters would disbar.

The attorney had been symptom free and practiced honorably from1981 to 1998. During a vacation in Europe, he began drinking and fell into a spiral that last until 2003. The thefts occurred during that period of time. Over the four year period, the attorney kept clear records of the amounts he had taken. He thereafter voluntarily repaid the funds and self-reported the misconduct. Since 2003, he is again in treatment and apparently restored to his pre-lapse condition. He had sought a fully stayed on conditions involving monitoring of his condition.

The court majority concluded:

Even though this case is unique in the quantity and type of mitigation present, this Court must reject Mr. Belz's argument that a stayed suspension with probation is proper. As this Court and many others have recognized, misappropriation of client funds presents a paramount risk to the integrity of the legal profession. Our profession relies intrinsically on the trust that clients are willing to place in their lawyers, and few acts of misconduct have the capacity to erode that trust more quickly and thoroughly than the conversion of a client's funds to one's own use. Even when such conduct is recorded properly and undertaken in a manic state, as it was here, this Court condemns this conduct in the strongest possible terms. Mr. Belz acted with a dishonest and selfish motive in taking his clients' funds, he did so multiple times, and he had substantial experience with the law. A stayed suspension is simply not appropriate for this type of misconduct.

In this case, an unusual array of compelling mitigating factors has collided with extreme and gross misconduct unbecoming of a member of the bar. Under the unique facts of this case, this Court concludes that the appropriate sanction is to suspend Mr. Belz from the practice of law indefinitely without leave to apply for reinstatement for three years. In addition to the conditions for reinstatement set forth in Rule 5.28, Mr. Belz must establish that he has continued to receive effective treatment for his bipolar disorder through the duration of his suspension and, as a part of any application for reinstatement, that he will continue such treatment into the future.

The dissent in full:

"Hard cases make bad law" is a familiar adage that seems to fit this case. The adage appears in a dissent by Justice Oliver Wendell Holmes, Jr. "Great cases, like hard cases, make bad law," Holmes said. "For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."(FN1)

I have long believed that disbarment is the penalty for stealing from clients. But this is a hard case because the respondent Mr. Belz, as the principal opinion ably notes, appears to have had a long and otherwise honorable career as lawyer and as a church and civic leader, as well as to have overcome, for the most part, a mental illness that he has endured through much of his life.

Moreover, when it comes to assessing punishments, I have learned over time that hard-and-fast rules often produce injustice and social dysfunction. Nevertheless, stealing is stealing. If there are certain immutable rules, then surely this is one: Lawyers may not steal from their clients. Not even borrowing without permission with the intention of repaying – it is still stealing. A license to practice law is not a license to steal. We should not give cynics, who may believe otherwise, any support for their wrong-headed view – regardless of mitigating circumstances. There are in fact no mitigating circumstances: no medical or psychiatric excuse mitigates this behavior. Lawyers must be held to this standard of honesty despite their individual circumstances.

Stealing from clients should result in disbarment.  This is a well-settled principle that we should not bend.  I respectfully dissent.

Reinstatement will be conditioned on proof of ongoing treatment compliance and symptom-free behavior. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/07/in-an-important.html

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