Sunday, November 12, 2017

Not Ready For Reinstatement Yet

The Louisiana Attorney Disciplinary Board has recommended that a petition for reinstatement be denied.

The original misconduct

Petitioner was suspended for a year and a day by the Louisiana Supreme Court on October 23, 2014, in In re Gill, 2015-1373 (La. 10/23/15); 181 So.3d 689. Petitioner was arrested and charged with three DWI offenses in addition to being arrested in connection with an alcohol-related disturbance at the Louis Armstrong New Orleans International Airport. He also made false statements to the ODC regarding the circumstances of his arrests. The Court adopted the Board’s recommendation that Petitioner be suspended for a period of a year and a day and that prior to reinstatement, he be required to prove his fitness by clear and convincing evidence.

The Hearing Committee had favored conditional reinstatement but the Office of Disciplinary Counsel did not

According to the committee, and relative to the ODC’s first argument addressing Petitioner’s recognition of the wrongfulness and seriousness of his misconduct under §24(E)(4), the ODC pointed to “an impressive number of documents, in which Petitioner denied or belittled his drinking problem.”  These documents included Petitioner’s October 27, 2016 sworn statement and the bar admissions applications he has made to Florida, Texas, Washington, D.C., and California. Nevertheless, the committee found Petitioner credibly testified at the hearing on March 22, 2017, that he recognized the wrongfulness and seriousness of his conduct.

The committee next addressed the ODC’s argument that Petitioner lacks the honesty and integrity to be reinstated under §24(E)(6). The ODC argued that he failed to meet this criterion due to his failure to adequately reveal and address the considerable debt he incurred. Further, the ODC argued that Petitioner lacks the character and fitness to be reinstated, as evidenced by his email communications with his daughter’s mother, and with his daughter, as well as conduct he exhibited during these reinstatement proceedings toward disciplinary counsel and staff.

Although finding it “impossible to ignore the impact of the emails” considering the inflammatory language used by Petitioner in communicating with his daughter’s mother and his daughter, the committee nevertheless took a narrow view in interpreting the reinstatement requirements, and found the evidence failed to undermine Petitioner’s ability to practice law.  It took into consideration character evidence in the form of letters of support submitted by lawyers and judges related to Petitioner’s legal abilities and competence. The committee further noted that while Petitioner’s “finances are in very bad shape”, and that it was particularly disturbed by his outstanding federal tax liability, it nevertheless determined that the Petitioner had met his burden relative to §24(E)(6).

The Board concluded

The evidence indicates that Petitioner was less than forthcoming in his several bar applications and that he has continued to deny the wrongdoing for which he was disciplined. This conduct raises significant doubt as to whether he recognizes the wrongfulness and seriousness of his misconduct.

When viewing the totality of the evidence, and the conduct for which Petitioner was initially disciplined, concerns are also raised as to whether the Petitioner has met §24(E)(3). This criterion requires a lawyer seeking reinstatement to prove by clear and convincing evidence that he has successfully addressed any physical or mental disability that existed at the time of the suspension. Petitioner was disciplined in connection with multiple instances of alcohol related criminal conduct. Given the misconduct, it is clear that Petitioner’s sobriety would be required for his reinstatement. The evidence clearly establishes that Petitioner has been abstinent and that he has attended all required meetings under a Florida LAP agreement since September 15, 2014. The Board recognizes that Petitioner has devoted much time and energy to complying with the terms of his Florida LAP contract and commends him for maintaining his sobriety since September of 2014. Nevertheless, the Board questions whether Petitioner has pursued appropriate rehabilitative treatment. It is not clear from the record what, if any, evaluations the Florida LAP program used as the basis for Petitioner’s Florida LAP contract. No representative of the Florida LAP program testified and no evidence was offered relative to the appropriateness of the Petitioner’s treatment or the likelihood of continued abstinence.

Because of these concerns

The most comprehensive evaluation of Petitioner to date was performed by Palmetto Addiction Recovery Center, a LAP approved evaluator. After a three-day inpatient evaluation, Petitioner was diagnosed not only with alcohol dependence, but also “personality disorder, NOS, with narcissistic and paranoid features.” It is not clear that any treatment rendered to Petitioner has successfully addressed all concerns raised in the evaluation, which in turn, creates doubt as to whether he has clearly established compliance with §24(E)(3).20 In order to establish that he has pursued effective rehabilitative treatment and has addressed his anger issues, the Board recommends that he return to JLAP for an updated evaluation and treatment as recommended.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/11/the-louisiana-attorney-disciplinary-board-has-recommended-that-a-petition-for-reinstatement-be-denied-the-original-miscondu.html

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