Monday, April 9, 2012

Aggravating Factor?

The New York Appellate Division for the Second Judicial Department has imposed a three-year suspension with conditions as reciprocal discipline based on a like sanction imposed by the Washington State Supreme Court.

One unusual aspect of the original case:

Since the respondent is a documented victim of domestic violence, it was further stipulated and agreed that the respondent would undergo an independent mental health evaluation by a licensed clinical psychologist or psychiatrist approved in advance by the Board; that the respondent would pay all costs associated with this examination and report, including the costs of obtaining medical records; and that, following reinstatement to the active practice of law, the respondent would be on probation pursuant to ELC rule 13.8 for a period of two years. During the probationary period, the respondent agreed to comply with any and all conditions recommended by the independent mental health examiner's report, such as demonstrated compliance with any recommended treatment plan. In the event there were any such conditions, the respondent agreed to promptly execute any necessary releases so that any treatment provider could report her compliance with the evaluator's or the treatment provider's recommendation no less than quarterly. Further, during the probationary period, the respondent was required to have her IOLTA account records reviewed by the Washington State Bar's auditors at six-month intervals. Finally, the respondent agreed to pay the costs of the auditor's time, at the auditor's hourly rate, as well as any other costs associated with the terms of her probation. The respondent resigned from the Washington State Bar in or about 2007, prior to her completion of the foregoing.

As to the New York discipline:

Since in or about 2007, the respondent avers that she has sought counseling from an organization known as "My Sister's Place," as well as private therapy. In the interim, she has sought regular, nonlegal employment while living with, and caring for, her mother. Currently, the respondent volunteers with the Hospice of Westchester as an administrative assistant in the Human Resources Department. The respondent also visits with patients.

Although the respondent has not practiced law since returning to New York, she avers that she has maintained her registration, and has taken the requisite Continuing Legal Education credits to maintain her skills.

The respondent does not contest the imposition of reciprocal discipline. Thus, there is no impediment to the imposition of same at this juncture. 

While it appears that the respondent agreed to the discipline in Washington State, it strikes me as inappropriate (to put it mildly) to treat being as victim of domestic violence as an aggravating factor in a bar discipline case. (Mike Frisch)

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