Wednesday, July 17, 2019

"Lawyers Are Made Not Born"

A stipulated sanction of a two-year suspension followed by two years of probation was accepted by the Arizona Presiding Disciplinary Judge for practice in violation of a suspension order.

The matter led to PDJ to wax philosophically. 

On April 19, 2019, Respondent moved for reconsideration and submitted a statement of mitigation. The circumstances described are undeserved and difficult.  They are a reminder that those who argue there are neat and easy solutions to every life problem may be well intentioned, but they are wrong. No one is free from falls, fractures, or failures. As difficult as these are, they do not excuse ethical misconduct, but they may help understand the failing...

Little suggests Respondent even acknowledges the misconduct, turned away from it, and would strive not to repeat it. In the Agreement, Respondent argues that she simply erred by not knowing when her suspension began, or when or how it would end. It is stated in both the Agreement she signed, and the proposed judgment attached to the Agreement. This is likely an ongoing rationalization that is also in her answer to the complaint.

There, she affirmatively argued that she was not engaged in the practice of law. Her positions are akin to the argument that it was just a misunderstanding. The admitted facts in the agreement prove the contrary. It evidences one avoiding a self confrontation. A serious admission with mitigation forms a foundation for the acceptance of agreements. These events had little to do with can’t and much to do with won’t. Whatever the cause of the self-deception, reform begins with living in the reality of one’s misconduct.

Respondent attempts to bolster her position by stating she may have found a calling helping the homeless. Pride in the proclamation of a not yet present calling, is not helpful to self-confrontation. It may set a goal through her present circumstances, but it is not mitigation. The sooner one is willing to own up realistically to one’s responsibility, the sooner that person will learn and change instead of churn and blame.

Callings may come through the circumstances of life. Some pleasant, some not. The question one should ask in any difficult circumstance is, “What did I learn from this?” or “How has this changed me for the better?” This is important because it may allow even the misery of the experience to quiet the self and enables one to contemplate what actually occurred, what should be valued and, what should be done.

Attorney discipline does not have a purpose to punish the attorney. It seeks a change through that’s attorney’s deep reflection and honest assessment of what occurred. Here, that is remarkably absent. Desperation can lead to failings that often are the consequences of action without thought. Contrary to intuition, admitting the truth of that error can start the journey of living above one’s circumstances rather than under them.

Lawyers are made not born. Because they are human, they can ethically fail. Those who recover from their failing typically do so because they have become profoundly honest with themselves about their own weaknesses. That is where it begins. It is through honest confrontation with these weaknesses that experiences become agents for change to the good. That requires candor and honesty. It doesn’t just happen. Those who continue to fail cast a blind eye at themselves and allow whatever ethical weakness that drives them to control them.

The described circumstances of Respondent are harsh. None of those were self inflicted and that they are existent is not ignored. The Agreement would have likely been accepted had Respondent been candid regarding the facts of misconduct. The furnace of the circumstances of life can burn anyone. Only time can report if one will be overcome by the fire or forged into an overcomer. Time will report whether there is redemption or regret. While it is not a factor, this judge hopes the former occurs.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/07/a-stipulated-sanction-of-a-two-year-suspension-followed-by-two-years-of-probation-was-accepted-by-the-arizona-presiding-disci.html

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