Thursday, July 7, 2011

Mitigation Does Not Prevent Suspension

An attorney who had converted client funds was suspended for three years by the New York Appellate Division for the Second Judicial Department, notwithstanding proffered mitigation:

In mitigation, the respondent testified that, in or around 2000, he was arrested. Although ultimately exonerated, the stress and anxiety caused by the arrest drove him to seek psychiatric help. He was diagnosed with depression. In 2001, he also began experiencing marital difficulties. From November 2005 until April 2007, the respondent underwent a series of surgeries to address a host of different medical problems (rheumatoid arthritis, torn quadriceps tendon, cardiac problems, and aneurysm). The respondent claims that these repeated surgeries and the continued use of prescription opiates created a drug dependence and severe depression. He voluntarily sought treatment at both in-patient and out-patient programs, to address his addiction to pain medications and other mental health issues. One of several expert witnesses called by the respondent at the hearing before the Special Referee, Dr. Julie Low, a forensic psychiatrist, opined that during the period the respondent underwent multiple surgeries and was on opiates he was "greatly impaired" and in "crisis mode." She also testified that the respondent's depression, anxiety, and substance abuse are all presently in remission.

On the issue of the respondent's mental impairment, the Special Referee concluded that the "respondent has established that his physical and emotional distress may have contributed to some of the misconduct committed, but not that such misconduct [was] the direct result of his dual diagnosis of substance abuse and severe depression." Specifically with respect to charges one and two, the Special Referee noted that the subject funds were "taken long before the series of debilitating surgeries which resulted in a severe worsening of his condition."

Based on the credible evidence, we reject the respondent's contention that he was impaired throughout the period from 2000 through 2008, such that he did not possess the requisite intent to commit the subject misconduct.

Notwithstanding the respondent's remorse, his reputation as a competent bankruptcy attorney who cared about his clients, the lack of a prior disciplinary history, the lack of complaints from clients, and the efforts he made to overcome his serious health issues, we find that he committed serious professional misconduct. The respondent converted client funds for personal use and, to date, two clients have still not been made whole.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/07/an-attorney-who-had-converted-client-funds-was-suspended-for-three-years-by-the-new-york-appellate-division-for-the-second-ju.html

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