August 25, 2009
Nonparticipation Equals Fitness
The Indiana Supreme Court recently imposed a suspension of 120 days without automatic reinstatement in a case that reminds me of cases I handled as a bar prosecutor. The attorney accepted two family law matters shortly before undergoing heart surgery. The cases were neglected and the unearned fees were not returned. The attorney had been previously admonished for similar misconduct. The attorney failed to participate in the disciplinary proceedings and defaulted on the charges.
The court expressed sympathy for the attorney's situation, but noted that there was no evidence submitted to sustain a link between the violations and the attorney's medical condition. Absent such evidence, the court concluded that public protection required that the attorney establish fitness prior to reinstatement.
The court is correct. As as bar prosecutor, I prefer to handle matters like these as disability rather than disciplinary cases. You can't do that if the accused attorney won't participate. (Mike Frisch)
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