November 26, 2008
The West Virginia Supreme Court of Appeals filed an opinion denying the petition for rehearing of a lawyer who had been suspended earlier this year. The court found no merit to the petition, and specifically reaffirmed its decision not to find mitigation based on a drug addiction:
It should be noted that during his testimony before the Subcommittee on January 18, 2007, respondent Duty admitted that he committed several violations of the Rules of Professional Conduct as described in the Statement of Charges. However, Duty explained that much of his conduct was the result of his chemical dependency upon OxyContin, an addictive, pain relief medication which Duty asserted depleted his finances...
It is noted that the evidence demonstrates that respondent has been addicted to OxyContin for two to three years. While there is medical evidence that respondent was affected by this chemical dependency, it does not establish that the chemical dependency caused respondent's misconduct. * * * Respondent did not seek treatment for his addiction until after or about the time the Statement of Charges in this matter was served upon him.
A review of the testimony elicited during the January 18, 2007, hearing suggests that respondent Duty's chemical dependency upon OxyContin, although warranting continuing treatment, did not rise to the level of an avoidance of responsibility with regard to any of the five Counts contained within the Statement of Charges. Consequently, this Court is in agreement with the conclusion of the Subcommittee.
The court's initial decision in linked here. (Mike Frisch)
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