Thursday, September 18, 2008

Gambling, Not Mental Issues, Caused Misappropriation

The Massachusetts Supreme Judicial Court rejected the contention that an indefinite suspension was unduly harsh in a disciplinary matter involving misappropriation of client funds. The claim of mitigating evidence did not justify a lesser sanction:

While there may be circumstances where medical, psychological, or other mitigating factors will warrant a reduction from the presumptive sanction, this is not such a case. The record supports the special hearing officer's findings, adopted by the board, that the respondent's long-standing financial problems, exacerbated by gambling large sums of money over a substantial period of time, rather than a medical or psychological disability, caused the misappropriation of client funds. See Matter of Johnson, 444 Mass. 1002, 1004 (2005) (while personal and financial difficulties surely caused respondent anguish, professional difficulties and financial reversals began years before misconduct and could not "excuse or explain abdication of professional responsibilities"). In particular, the special hearing officer declined to credit testimony that the respondent suffered from a "fugue" or dissociative state during the period of misappropriation. This is consistent with the special hearing officer's finding, among other things, that the respondent was "less than candid with her therapist concerning her serial and systematic misuse of clients' funds for personal uses," and that her professional activities during that period belied a " 'fugue' state." The special hearing officer's observation is well taken that "methodical and systematic" misuse of funds for personal purposes is inconsistent with any conclusion that the respondent was operating under a cognitive disability.

The case is`Matter of Johnson, decided today. (Mike Frisch)

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