Wednesday, March 28, 2012

Brain Cyst Does Not Mitigate Intentional Misappropriation

The Utah Supreme Court has disbarred an attorney who "used his client's settlement money to cover his firm's operational expenses for four months."

The court found that the attorney had engaged in intentional misappropriation.

The mitigation evidence related to a cyst on the attorney's brain:

Even if the seeds of [the attorney's] brain cyst had been planted before childhood, there is simply no evidence before us that the cyst existed or significantly impaired [his] cognitive abilities when he took on [the client's] case. There evidence to suggest that [his] impairment would have prevented or did prevent him from developing the requisite intent to misappropriate [the client's] funds for his own benefit.

The court indicated that a future case involving health-related issues might rise to the level of "truly compelling mitigation."

Here, the attorney's "long history of client trust funds issues and other bar discipline" and the "vague speculation" of his expert's testimony failed to establish a basis to avoid disbarment. (Mike Frisch)

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