Monday, December 29, 2008

Acupuncture Bill Insufficient To Prove Mitigation

The Washington Supreme Court imposed a nine month suspension with a requirement that the attorney participate in practice management counseling and refund a $500 unearned fee to a client. The court found insufficient mitigation to warrant a lesser sanction:

...the hearing officer found Behrman's evidence of depression -- the
testimony of Behrman and two friends, along with a bill from Behrman's
acupuncturist, allegedly for treatment of depression -- to be not credible.  CP at 164. 
Therefore, Behrman failed to show his personal or emotional problems by either a
clear or a simple preponderance of the evidence.

       ...Behrman argues that the hearing officer erred by requiring expert
testimony of his depression and discounting the evidence of acupuncture treatment for
his depression.  However, the hearing officer simply stated that Behrman had not
presented expert "or other credible" evidence, indicating that the evidence Behrman
had presented was not credible.  Id.  Given that Behrman presented no credible
evidence of his depression, the hearing officer's rejection of depression as a mitigating
factor was supported by the record.

The court found the imposition of the practice management copndition appropriate even where there was not evidence of mental or emotional problems. (Mike Frisch)

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