Saturday, June 15, 2019

Bipolar Disorder Did Not Mitigate Sanction

The California State Bar Court Review Department recommends disbarment of an attorney who had no prior discipline

In her first disciplinary case, respondent Lisa Lynn Maki is charged with misappropriating nearly $300,000 from two clients, failing to maintain or pay client trust funds, and issuing nonsufficient funds (NSF) checks from her client trust account (CTA). After the Office of Chief Trial Counsel of the State Bar (OCTC) filed charges, Maki wrote a $100,000 NSF check from her CTA to a third client. Additional charges were filed, and the cases were consolidated for trial. The hearing judge found Maki culpable of all charges and recommended disbarment.

Maki appeals, arguing that suspension, and not disbarment, is appropriate because her mental health difficulties were responsible for her misconduct. OCTC does not appeal and supports the hearing judge’s decision.

She had misused settlement proceeds in two matters despite the urgent pleas of the clients for the funds.

Maki stipulated that she was culpable of the following four violations: misappropriation involving moral turpitude in the Manghillis and Calderwood matters (counts one and five of first NDC) and issuing checks without sufficient funds involving moral turpitude (count four of first NDC and count one of second NDC). The hearing judge found her culpable of these stipulated violations, and we find that the record supports them.

Harm

Maki concedes her clients were harmed but contends that the harm was not significant enough to constitute aggravation. She argues that her clients’ emotional harm wasm attributable to the loss of employment underlying their lawsuits, that she disbursed a partial payment of $47,500 to Manghillis within five weeks of receiving the settlement funds, and that overall she paid restitution relatively quickly and with additional remuneration. These arguments fail. Maki caused harm, as previously detailed, when she failed to promptly pay her clients even though they essentially begged her for their money due to desperate financial circumstances...We find that the harm Maki caused her clients warrants substantial aggravation.

Mental health mitigation

Maki asserts that her misconduct was caused by “an extremely serious mental health crisis resulting from an unexpected adverse reaction to her prescription psychotropic medications that severely impaired her cognitive functioning.” She testified she has been treated for bipolar disorder for years and has functioned well after being prescribed medication. She described a manic episode that caused distraction, confusion, and panic during the time of her misconduct in the Caldwell and Manghillis matters (February through June 2016). She does not clearly recall handling the settlement funds, stating it was just “one big mess, one big blur.” Her doctor changed her medication, which eventually caused her to be depressed. She testified that during this depression, she did not clearly recall handling Pomerantz’s settlement funds. Thereafter, her medications were again changed, and Maki testified she was feeling better and hopeful that her depression and bipolar disorder had stabilized.

Maki’s testimony of confusion when she misappropriated funds in 2016 is not consistent with her other actions during this time. As the hearing judge noted, Maki was able to move large amounts of money into and out of her CTA. This action is inconsistent with her testimony that she was unaware of the details and management of her CTA during the relevant times. She also conducted other litigation activities and admitted to Calderwood that she “messed everything up” and was “very, very sorry.”

We further find that the expert letters Maki presented at trial were generally summary in nature and did not prove that her mental difficulties caused her misconduct.

There were a significant number of character witnesses but the evidence was discounted because they were not familiar with the misconduct.

Pro bono

We assign substantial weight in mitigation for Maki’s pro bono work and community service. Her character references detailed her ongoing commitment. She has served on the boards of various foundations and bar associations, including the Legal Aid Foundation of Los Angeles, the Clare Foundation, the Beverly Hills Bar Association, and Consumer Attorneys of California. She also served as president of Consumer Attorneys Association of Los Angeles and served on its executive committee for nine years during which she implemented mentoring and volunteer initiatives. Maki has supported several Los Angeles based charitable organizations by contributing time and financial support. She was also honored by Imagine LA as a recipient of its highest award for her commendable charitable efforts. Maki’s proven dedication to pro bono work and community service deserves substantial mitigation credit.

Nonetheless

Maki’s misconduct was surrounded by dishonesty. When her clients repeatedly asked about their settlement funds, Maki delayed payment by lying, making false assurances, and transferring small amounts of money. All the while, her CTA and general account had insufficient funds, and she knew her clients were experiencing financial and emotional difficulties.

Maki’s primary argument—that she is entitled to significant mitigation because her emotional difficulties were directly responsible for her misconduct—is not persuasive. During the four-month payment delay, Maki focused on many tasks without cognitive difficulty. For example, she accepted and deposited settlement funds, transferred them to her general account, used them to pay personal expenses, engaged in other litigation work, repeatedly made detailed excuses for non-payment to her clients, and admitted to Calderwood that she mishandled the money and had “messed everything up.” Further, Maki did not pay the full amount to both clients until they threatened involvement by the State Bar. Moreover, Maki continued to mismanage her CTA even after the first NDC was filed. This continuing misconduct causes concern, and places Maki at serious risk for future misconduct.

https://lawprofessors.typepad.com/legal_profession/2019/06/the-california-state-bar-court-review-department-recommends-disbarment-in-her-first-disciplinary-case-respondent-lisa-lynn.html

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