Wednesday, December 5, 2018

Fear Of BPR Not Disabling

The Tennessee Supreme Court accepted findings that a suspended attorney's asserted disability did not unduly impair his ability to respond to bar charges

We agree with the hearing panel and chancery court that the attorney has not shown by a preponderance of the evidence that he lacked the capacity, by reason of mental illness, to respond to or defend against his disciplinary complaint.

The claim

Mr. Mabry testified that he had experienced suicidal ideations in the time leading up to a disciplinary hearing, manifested in the thought that “maybe it might be best if [he] jumped off one of the cliffs . . . where [he] hike[d].” Mr. Mabry explained that he participated in extreme hiking and rappelling and that he was a recovering alcoholic. He testified that, anytime that he had to do anything related to the practice of law, he was “basically in a panic mode.” He further testified that he was “very paranoid about what the Board of Professional Responsibility has done and can do to” him and that, when those thoughts entered his mind, it was debilitating. Mr. Mabry also said that the shame associated with disciplinary proceedings “builds up sometimes into thoughts of maybe [he] just would be better off not existing.”

Insufficient evidence

Mr. Mabry submitted proof that he has generalized anxiety disorder and suicidal ideations. Mr. Ernst [a licensed clinical social worker] wrote that Mr. Mabry tied his anxiety and suicidal ideations to his disciplinary proceedings, but Mr. Ernst did not opine whether Mr. Mabry’s mental illness had any impact on his capacity to respond to or defend against the disciplinary complaint. Likewise, Mr. Mabry did not testify that his disability made it impossible for him to respond to or defend himself against the disciplinary complaint. Because there is no evidence that Mr. Mabry’s disability makes it impossible for him to respond to the disciplinary complaint, we agree with the hearing panel and chancery court that he has not met his burden of proof.

Result

We affirm the chancery court’s conclusion that Mr. Mabry has not shown by a preponderance of the evidence that he has a disability making it impossible for him to respond to or defend against disciplinary proceedings. Consequently, we order that his disability inactive status be removed and that any pending disciplinary proceedings against him shall be resolved prior to the effective date of any reinstatement. Mr. Mabry’s suspension pursuant to the opinion and the judgment order entered December 30, 2014, in case number E2013-01549-SC-R3-BP, from which he has never sought reinstatement, remains in full force and effect.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/12/the-tennessee-supreme-court-affirmed-the-rejection-of-mr-mabry-testified-that-he-had-experienced-suicidal-ideations-in-the.html

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