Tuesday, July 27, 2010

PTSD Mitigation

An attorney whose serious misconduct was attributed to post traumatic stress disorder in the wake of 9/11 was suspended for one year by the New York Appellate Division for the First Judicial Department. The Departmental Disciplinary Committee had sought a suspension of at least three years. The court discussed the mitigating evidence:

...respondent raises a number of points about his personal background. First, as confirmed by both mental health experts, while growing up he suffered greatly under an emotionally and physically abusive father and passive mother. According to the experts, this set the stage for the onset of severe PTSD after 9/11, manifested by feelings of loss of control, anxiety, panic attacks and nightmares.

Respondent was also hampered in meeting his professional obligations in the wake of 9/11 by the location of his law office, which was 100 Church Street, in the immediate vicinity of the World Trade Center. Although he was not at his office at the time of the attack, he had only limited access to it for many months thereafter. When he was given access to the office during this period, he was escorted by the police up 18 flights of stairs, in the dark (there was no power), and he was given only a few minutes to collect files that had survived the attack. His computer, on which the electronic ledger of his IOLA account had been stored, was destroyed, as were most of his files. Moreover, he did not receive bank statements for several months due to problems with mail service.

As to sanction:

As to the matter of the sanction to be imposed, there are cases in which suspension from the practice of law for a substantial period of time is the appropriate sanction for even nonvenal misappropriation of funds. For example, in Matter of Tepper, (286 AD2d 79 [2001]), we imposed a two-year suspension for misconduct including "careless and nonvenal invasions of client funds for personal or business uses" (id. at 81) where, although "there was no evidence of venality and no losses were suffered by any of the parties affected by respondent's actions, nevertheless respondent also demonstrated flagrant irresponsibility in his bookkeeping and check writing." Under the particular circumstances of this case, we find that the appropriate sanction is a one-year suspension from the practice of law. (citations omitted)

(Mike Frisch)


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