Tuesday, October 7, 2008

Insufficient Mitigation Evidence

A two year suspension was imposed by the Pennsylvania Supreme Court in a bar discipline matter where the accused attorney's retained counsel withdrew the week before the hearing. Substitute counsel was not retained and the lawyer represented himself. Because no answer was filed, charges of unauthorized practice while on inactive status, commingling and conversion, and failure to respond to the bar investigation were deemed admitted.

The attorney testified in mitigation that he had had surgery for diverticulitis that had resulted in addiction to painkillers, resulting in the misconduct. Although he further testified (and the Disciplinary Board accepted) that he had not taken prescription medication for over a year, he did not offer expert or other testimony on the linkage between his condition and the violations. Thus, the board held: "The evidence put forth by [the lawyer] is not sufficiently weighty to meet his burden of proof [under the court's seminal  mitigation precedent]." (Mike Frisch)


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