Tuesday, October 7, 2008

Discipline Too Harsh?

The Oklahoma Supreme Court rejected a proposed two year suspension of an attorney who had neglected a client matter and misrepresented facts to the client and the bar association. The court majority concluded that a suspension of three months was appropriate in light of the following mitigation:

We agree with respondent's contention that the panel's recommended suspension for two years and one day is too harsh under these circumstances. Respondent has been a member of the Oklahoma Bar Association since 1974 and has no history of disciplinary action. It is undisputed that at the time in question respondent was in very poor health. He had suffered a heart attack and afterwards he was hospitalized, unable to work and suffered short-term memory loss. He was divorced in 2004 shortly before he voluntarily closed his practice and left Oklahoma in May 2004. He remains in poor health. He has coronary artery disease and a congenital heart valve deformity which requires medication and causes him to tire easily, and he also has resulting problems with hemorrhaging blood vessels in his eye. It is likely he will never practice again and never return to Oklahoma due to worsening health conditions.

A dissent finds the sanction overly harsh and would impose a private reprimand:

Bar discipline is never intended to be punitive. There are three primary purposes of bar discipline: 1) to protect the public, legal profession, and judiciary from the dangers of professional misconduct; 2) to maintain the public's confidence in the legal profession; and 3) to generally and specifically deter attorneys from engaging in similar misconduct in the future. Because the respondent no longer practices law, the discipline recommended cannot serve the first purpose of bar discipline, nor can the discipline serve the purpose of specific deterrence. Given the many pertinent mitigating circumstances, it will do little to serve the second and third purposes of bar discipline to so harshly discipline the attorney.

(Mike Frisch)

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