Friday, December 7, 2018

Dissents: Opioid Crisis Merits Reconsideration Of Bar Sanction

The Louisiana Supreme Court -over two dissents - denied rehearing in a bar discipline matter. 

The court had imposed a year and a day suspension  with all but 90 days deferred last September. 

In this case, respondent, like a growing number of people in our country, developed an addiction to medications that were validly prescribed by his physician to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly requires long-term inpatient treatment to successfully address this unfortunate disease, but thus far he has been reluctant to agree to participate in such treatment. In order to fulfill our role of ensuring the public is protected, we conclude it is necessary to fashion a suspension which is responsive to respondent’s current misconduct and provides him with an adequate opportunity to address his substance abuse issues so he may safely practice law in the future.

Accordingly, we will suspend respondent from the practice of law for one year and one day. In view of the mitigating factors, we will defer all but ninety days of this suspension, subject to a two-year probationary period...

Justice Weimer authored one of the dissents

I would grant respondent’s application for rehearing and would order an evidentiary hearing, as indicated in the dissent with which I previously concurred.

The professional evaluation report of the respondent conducted pursuant to a prior order of this court noted: “Mr. Brown is articulate and presents with logical and goal directed thinking ... . His judgment and insight seems to be intact as well.” The report further notes he adopted five children and is a single parent. The respondent was involved in numerous automobile accidents, most of which were not his fault, and one of which was serious. There is no evidence he took illicit drugs. On verbal reasoning, he scored “VERY SUPERIOR,” attaining the 99th percentile rank. This test measures verbal reasoning, concept formation, and acquired knowledge from one’s environment–all of which are valuable in practicing law.

The report concludes: “Mr.Brown’s performance overall is not consistent with any substance induced cognitive decline or other learning or processing deficit.” This was corroborated by witnesses, who testified they never saw any impairment. There has been no allegation or any evidence that any client was ever harmed.

I realize the report also indicates respondent continues to be “deceptive.” The respondent should be afforded a hearing to confront that accusation, which he vigorously disputes.

It has become increasingly obvious that an alarming number of people are confronting issues related to medications that were validly prescribed to relieve pain. This situation has become so prevalent a phrase has been coined recently to describe this unfortunate circumstance: “The Opioid Crisis.”

Respectfully, I would therefore grant a rehearing.

Justice Crichton opined

Respondent has been a respected member of the Louisiana State Bar Association for over 35 years with no prior disciplinary record. However, in 2012, he violated R.S. 14:98 and ROPC Articles 8.4(a) and 8.4(b) by driving a vehicle while under the influence of prescription medication. Undoubtedly, he should receive discipline and, based on the record prior to oral arguments in the case, substance abuse counseling and monitoring.

Following oral arguments, however, he was ordered to undergo an “updated substance abuse evaluation” which, according to the written report, proved positive for opiate consumption. At the post-oral argument stage, he was not allowed the opportunity to confront and cross examine the lab technician as to the methodology involved in the testing and analysis or the opinions expressed within the Professionals’ Wellness Evaluation Center report. Moreover, he was not allowed the opportunity to provide testimony under oath but instead afforded only the opportunity “to file supplemental briefs addressing the report.” In this disciplinary proceeding, referenced by the U.S. Supreme Court as quasi-criminal, respondent is entitled to the procedural due process including an opportunity afforded for cross examination and defense.

Accordingly, for these reasons – and those set forth by Justice Weimer - I would grant rehearing, vacate the suspension, and remand this matter for an evidentiary hearing.

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