Thursday, November 16, 2006

The ADA and Attorney Discipline

by Mike Frisch

The Supreme Court of Arkansas recently published a decision rendered in December 2004 in a disciplinary case involving two complaints against an attorney, one filed by by Judge Susan Weber Wright of Bill Clinton-Paula Jones fame. The case raises several interesting points of disciplinary process and procedure. There is a discussion of the penalty phase of a bar proceeding and the appropriate use of mitigating and aggravating factors. Disciplinary counsel may not offer evidence of uncharged misconduct in the misconduct phase without amending the charges to give the accused attorney fair notice, although such misconduct may be considered in the sanction phase. The lawyer's claim of entitlment to mitigation under the Americans with Disabilities Act was rejected due to insufficient evidence (the diagnosis was dysthymic disorder), with the court citing cases finding the ADA inapplicable where the proven misconduct demonstates that the attorney is not qualified to practice law. Disbarment was imposed in light of the court's finding misappropriation of advanced fees.

The case is Ligon v. Price, 200 S.W. 3d 417 (Ark. 2004).

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These disciplinary cases involving theft of trust funds or misappropriation of advance fees really give a bad taste to Judges who are asked to consider the protections of Title II of the ADA. This does not help the numerous disciplinary and bar admission cases that are wrongly litigated by failing to recognize that what is really at issue in some cases (excluding the money misappropriation cases) is a reasonable accommodation challenge. To cast the ADA as somehow requiring bar disciplinary "mitigation," is really a disservice, since if the issue is the bar punishing a disabled person for the bar's failure to timely and effectively reasonably accommodate, then the public safety corrective mechanism is more appropriately addressed by enforcing the ADA's mandate on the bar to provide the accommodations. "Mitigation" tries to explain away and show a disabled victim's "remorse" for having been made the discrimination accommodations victim of the bar -- a totally wrong approach, when the resolution should be simply to bring the bar into accommodations enforcement and fix or resolve the reasonable accomodations discrimination problem in the first instance. Again, theft of funds or misappropriation is a whole different species of disciplinary case, since there is really no excuse under the ADA or otherwise for truly bad criminal conduct -- a voluntary choice to take someone else's money. But other disciplinary cases, such as diligence problems or inability to comply with certain timing or formatting rules may more accurately signal an ADA accommodation problem rather than bad criminal misconduct. Of course, trying to explain the ADA to any bar is almost as futile as trying to persuade an old codger brought up on manual typwriters and triplicate carbon copies to move on to the modern age of internet computers.

Posted by: Mary Katherine Day-Petrano | Nov 16, 2006 7:22:40 PM

Thanks for the insightful comment. Bars tend to focus on issues like causation Ii.e. did the condition cause the misconduct, rather than the the reality of the individual situation.

Posted by: Mike Frisch | Nov 17, 2006 8:51:27 AM

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