Sunday, March 19, 2017

Opiate-Addicted Attorney Who Stole From Firm Gets No Mitigation

The Louisiana Attorney Disciplinary Board has recommended disbarment of an attorney who admitted he stole nearly $40,000 from his law firm, rejecting his claimed and proven opiate addiction and subsequent recovery as mitigation.

The stipulated facts...stated that Respondent’s conduct violated Rules 8.4(a), (b), and (c). Respondent admitted to taking the funds from his law firm. None of the funds were taken from individual clients and Respondent has reimbursed the firm for all funds he converted. Respondent used the money to support his drug addiction. Respondent voluntarily enrolled in and successfully completed Palmetto Addition Recovery Center for a 90-day rehabilitation program and entered into a five-year contract with JLAP. The parties stipulated to the existence of two aggravating factors: a pattern of misconduct and multiple offenses. They also stipulated to five mitigating factors: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or rectify the consequences of misconduct, full and free disclosure to the disciplinary board or cooperative attitude towards the proceedings, and remorse.

From the Hearing Committee

The evidence presented to the committee establishes that Respondent was addicted to opioid medication, has been sober since June 2015, and is well equipped with the tools needed to manage his sobriety moving forward. The committee was impressed by the friends and family members who testified on Respondent’s behalf, and is confident that Respondent has the support structure in place around him to help maintain his sobriety.

All of the evidence presented to this committee was that, prior to developing a severe opioid addiction in late 2012, at age 32, Respondent was respected for his character, integrity and professional skills. There was no evidence presented that, prior to developing the opioid addiction, Respondent had any previous substance abuse or addiction problems.

The fighting issue was whether the addiction caused the misconduct

The Respondent challenges the Committee’s conclusion that the evidence was not sufficient to prove a causal connection between Respondent’s misconduct and his addiction, which was based in part on the lack of expert testimony. In its brief to the Board, ODC acknowledged that expert evidence of a causal connection was presented. The Board accepts this stipulation, and finds that the Committee erred in finding there was no expert testimony regarding the causal connection between Respondent’s misconduct and his addiction. Whether the expert testimony combined with the testimony of friends and family constitutes sufficient evidence is addressed below in the context of the sanction recommendation...

The weight to be afforded this [causation] element depends on whether the addiction was the sole, principle, or substantial contributing cause of the misconduct. Unfortunately, the record testimony was not specific enough for that distinction to be made, and there was evidence of other financial issues that could have contributed and evidence that the first act of misconduct occurred before the addiction became full blown. But, even assuming “very great weight” should be given to the addiction as a mitigating factor, we agree with the Hearing Committee that the aggravating factors carry as much weight as the mitigating factors and a downward deviation from the baseline sanction of disbarment is not warranted...

Here, while Respondent’s misconduct appears most similar to that in Kelly, there are certain factors present in this matter that suggest a three-year suspension is unduly lenient. First, as in Kelly, the scale of Respondent’s theft from his firm was significant. He stole nearly $40,000 over a significant period of time until he was caught. Second, Respondent perpetrated the theft by sophisticated and deliberate means, including creating fraudulent invoices, which is similar to the misconduct in Bernstein. Third, Respondent delayed nine months in seeking treatment for his addiction. He was fired in August of 2014 and consented to interim suspension in October of 2014 but did not enter treatment at Palmetto until June of 2015. Respondent’s apparent reluctance to seek treatment for his addiction, at least initially, gives the Board concern and results in a shorter period of proven sobriety on which to rely. Fourth, and most significant, the first theft from the firm occurred in November of 2012. See ODC Exhibit 5, Bates 16. However, Respondent testified the pain pills did not have a different effect on him (i.e. pleasurable effect) until the end of December in 2012, suggesting the first act of misconduct predates full blown addiction. Hearing Transcript, pp. 221-222. Based upon these facts, the Board finds that a downward deviation from the baseline sanction of disbarment is not warranted.

Whether a condition "caused" misconduct such that recovery merits a lesser (often stayed) sanction is probably the most challenging issue in these disability/addiction mitigation cases.

Usually, the support of and testimony from the bar's lawyer counselling program establishes the causation element. This matter is unusual because the hearing committee and board found that support insufficient to avoid disbarment

ODC acknowledged that expert testimony was presented. J.E. “Buddy” Stockwell, III, the Executive Director of LAP testified to the seriousness of an opioid addition: “[L]ook, these drugs are serious. People will do things to get these drugs that you would not expect from anyone else. Trust me, that’s not who they are. It’s not who they want to be. It’s not a character issue … the person’s brain has just been highjacked.” Hearing Committee Transcript, p. 57. Additionally, Jay Weiss, M.D., the medical director at Palmetto Addiction Recovery Center where Respondent was treated, testified: “I understand there was some such behavior within the context [of] the law practice. I blame the drugs for that.” Hearing Committee Transcript, p. 90. Dr. Weiss further testified that “opiates can impair your judgment very badly. My thinking would be that was the case with [Respondent] because he was in the throws [sic] of the opiate addiction when [the misconduct] was happening.” Hearing Committee Transcript, p. 112. The Board finds that the expert testimony, along with the testimony of family and friends, constitutes sufficient evidence of causation to satisfy the second factor.

The weight to be afforded this element depends on whether the addiction was the sole, principle, or substantial contributing cause of the misconduct. Unfortunately, the record testimony was not specific enough for that distinction to be made, and there was evidence of other financial issues that could have contributed and evidence that the first act of misconduct occurred before the addiction became full blown. But, even assuming “very great weight” should be given to the addiction as a mitigating factor, we agree with the Hearing Committee that the aggravating factors carry as much weight as the mitigating factors and a downward deviation from the baseline sanction of disbarment is not warranted.

In D.C., the attorney seeking mitigation must establish that the condition is the "but for" cause of the misconduct.

My erstwhile colleague Julia Porter prevailed in defeating a mitigation claim based on the attorney's bipolar disorder where the attorney had executed a sophisticated scheme similar to that here that involved sums far in excess of those at issue here.

There the focus was on future danger

We are not without sympathy for Mr. Appler; at least for the time being, his bipolar condition will prevent him from continuing to practice law. But respondent is not being disbarred because he suffers from bipolar illness; he is being disbarred because that illness caused him to commit serious, damaging crimes in the past, and we are not convinced that it will not likely cause him to commit similar crimes in the future. Therefore, even though our purpose is not to punish, we, unfortunately, cannot put our sympathies for an attorney's medical condition above the interests of the public at large.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/03/the-louisiana-attorney-disciplinary-board-has-recommended-disbarment-of-an-attorney-who-admitted-he-stole-the-stipulated-fac.html

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