Friday, April 5, 2013

Suspension For Focus On Recovery

An attorney's depression caused his unethical conduct, consisting primarily of neglecting bankruptcy and mortgage/refinance matters.

As a result, the New York Appellate Division for the First Judicial Department suspended him indefinitely based on his present inability to practice law.

The mental health issues came to light in the attorney's deposition:

In March 2011, in furtherance of the Committee's investigation, respondent was deposed by the Committee and testified as follows: In 2008, respondent's depression, with which he had been afflicted since the age of 22, was greatly exacerbated by the traumatic death of two individuals, - his life partner, who died after his car careened off a mountain in October 2008, and his niece, who died after she hit a tree while skiing in March 2009. Despite the aforementioned deaths, respondent took no time away from his practice to grieve because at the time the number of loan modification cases which he was retained to handle significantly increased. Moreover, shortly after the death of his life partner, respondent began to consume large quantities of alcohol, becoming an alcoholic. Although respondent joined Alcoholics Anonymous in March 2009, shortly after his niece's death, and began therapy for his depression in November 2009, he nevertheless found it difficult to both manage his law practice and focus on recovering from his depression and alcoholism. Lastly, in 2009, respondent's paralegal, who was critical to respondent's practice, quit. Accordingly, with respect to the circumstances giving rise to the client complaints against him, respondent attributed any deficiencies in the handling of his client's cases to the sudden growth of his practice at a time when, due to worsening depression, alcohol addiction and the loss of a valued employee, he was ill-equipped to manage it properly.

While at the time of his deposition, respondent had been sober and in recovery, was seeing a therapist for his depression, was on 10mg per day of Lexapro, a depression medication, and was still running his practice, he nevertheless testified that running his practice was very challenging. Specifically, respondent testified that he was "at a point in [his] practice where [he was] actively trying to downsize and perhaps take a break." After his deposition, by his own account, respondent's depression worsened and hefound it increasingly difficult to practice law. In September 2011, respondent sent aletter to the Committee informing itthat he was closing his practice because his health had worsened and he wanted to continue his recovery. In November 2011, whenrespondent was again deposed by the Committee he reiteratedthat since his depression had worsened and he couldn't both run a law practice and effectively treat his  depression and alcoholism, he had stopped practicing law,closed his law practice, vacated his office, and with the assistance of other lawyers, referred active matters to other attorneys, refunded unearned legal fees, and where necessary, sought court permission to withdraw from pending matters.

The court:

Here, respondent's testimony at his depositions establishes that he is afflicted with severe depression, that he became an alcoholic as a result thereof, and that he cannot both practice law and focus on his recovery and therapy. Moreover, within his affidavit, respondent admits that his depression has contributed to the neglect of his clients' legal matters, such that his clients have filed complaints against him. Lastly, respondent's treating psychiatrist corroborates respondent's assertions, and to the extent that she recommends that respondent cease the practice of law, she establishes that respondent's condition renders him incapable of practicing law.

Thus the suspension is not discipline for misconduct. (MIke Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/04/an-attorneys-depression-caused-his-unethical-conduct-consisting-primarily-of-neglecting-client-loan-modification-matters-as.html

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