June 18, 2010
Insufficient Evidence Of Mitigation
The West Virginia Supreme Court imposed a three-year suspension and restitution of an attorney who had submitted false payment claims to the public defender office. The court rejected the claim that the sanction should be mitigated by mental health issues:
In a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney's recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
Applications of these factors to the evidence below, compels us to conclude that [the attorney's] mental disability does not qualify as a mitigating factor. The medical evidence indicated that during the time period in question [he] suffered from significant depression which could be the etiology of his memory problems. While this evidence satisfies the first prong of the Dues test, [he] has failed to satisfy the remaining three prongs. With regard to the second prong, the blanket assertions of [the attorney] and his physician that depression caused or may have caused [his] memory problems is insufficient to prove that his memory problems caused his misconduct. In addition, [he] adduced no evidence whatsoever that he has experienced a meaningful recovery from his mental disability which makes it unlikely that his misconduct will recur. In fact, he has expressed the opposite. In his opening statement to the Hearing Panel Subcommittee at the May 7, 2009, evidentiary hearing, [he] indicated:
But still I think the manner in which I have responded to ODC and this panel ought to be some indication of my level of impairment. I can't do the simple things that is required of a lawyer to do. I can't do the simple things.
. . . . I have - - I have let my law practice close itself. I have only one active client, who is a misdemeanor case in Berkeley County.
So this is not about - - so the outcome of this hearing is not about whether or not I'm going to be practicing law in the future. I can't practice law in the future. I know that now. It's in the transcript.
Because [he] has failed to show that his mental disability caused his misconduct, and that he has experienced a recovery from his mental disability as demonstrated by a meaningful and sustained period of successful rehabilitation that indicates that his misconduct is unlikely to recur, this Court concludes that [his] mental disability cannot be considered a mitigating factor in determining the appropriate sanction against him.
Justice Ketchum dissented, and reserved the right to file a dissenting opinion. (Mike Frisch)
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