Thursday, October 10, 2019

Mental Health And Fitness To Practice

The Illinois Review Board recommends that an attorney be suspended for six months and until further order for criminal conduct

This matter arose from an incident in which Respondent broke windows of several businesses, for which he pled guilty to criminal damage to property. He was placed on supervision, which he successfully completed. Thereafter, the Administrator charged him in a one-count complaint with committing a criminal act that reflected adversely on his fitness as a lawyer, in violation of Illinois Rule of Professional Conduct 8.4(b) (2010).

The Hearing Board found Respondent committed the charged misconduct. Based upon evidence of mental health issues, the Hearing Board recommended he be suspended for six months and until further order of the Court.

Respondent appealed, challenging the Hearing Board's recommendation of a suspension until further order and alleging that the Administrator withheld evidence from the Inquiry Board and allowed the Administrator's psychiatric expert to provide false testimony, which the Hearing Board improperly relied upon to find that Respondent suffers from mental health conditions that render him currently unable to practice law.

The Review Board affirmed all of the Hearing Board's findings of fact. Based upon substantial evidence regarding Respondent's mental health conditions, the Review Board agreed with the Hearing Board's finding that Respondent is currently unfit to practice law, and with its recommendation that Respondent be suspended for six months and until further order.

The incident

The facts relating to that incident are fully set forth in the Hearing Board's report. In summary, around 3 a.m. on August 11, 2015, Respondent threw bricks through the windows of several businesses, including a Wendy's restaurant, in Tinley Park, Illinois.

The police officers who arrived at the scene reported that Respondent was yelling, frantically walking toward them, and talking erratically, and was paranoid that people were trying to kill him. They called an ambulance, which took Respondent to a local hospital. In the ambulance, Respondent reported that he had taken Adderall, cocaine, and other pills. At the hospital, police arrested Respondent. After the arrest, Respondent told police he had taken cocaine and Adderall and had thrown bricks through windows.

The explanation

At his disciplinary hearing, Respondent testified that he had no recollection of breaking any windows on August 11, 2015, but that, on that date, he recalled being assaulted and/or choked by police officers, who threatened him and told him to say that he was under the influence of cocaine. He testified that he told the ambulance driver and hospital nurse that he was under the influence of drugs because of his "agreement" with the police officers, but that a drug test showed that he had not ingested cocaine. He testified that the police officers used his cell phone to take a photo of him, which was then published as part of a defamatory article on the internet. He also testified that he received a photo of him with several police officers, and that he was being lynched in the photo. These things made him frightened to be in Illinois.

A forensic evaluation was performed

Dr. Henry diagnosed Respondent with bipolar disorder, probable cocaine use disorder, probable cannabis use disorder, and attention deficit disorder. He concluded that Respondent is incapacitated from the practice of law and would not be able to consistently adhere to the Rules of Professional Responsibility. He opined that Respondent would benefit from treatment from a psychiatrist and a therapist, including medication and psychotherapy, in addition to an intensive outpatient chemical dependency program followed by participation in a 12-step program. Dr. Henry opined that, after Respondent attains a period of sustained stability, he should undergo another assessment for fitness to practice law. He testified that he would want a person with bipolar disorder to have six months to one year of consistent compliance with treatment conditions, corroborated by collateral sources, and to be well-engaged in treatment, before he determined that the person has bipolar disorder in remission or sustained remission.

And objected to

Following Dr. Henry's psychiatric evaluation of him, Respondent filed a motion seeking to exclude Dr. Henry's testimony and a motion to dismiss the Administrator's complaint against him, both of which the hearing panel chair denied. In his motion to exclude, Respondent claimed that Dr. Henry had sexually harassed him; discounted his versions of events; knowingly submitted a false report to the Administrator; received test results for blood, urine, and hair samples that Respondent had provided and which were negative for drug use; and did not try to contact Respondent's treating physicians.

In his motion to dismiss, Respondent made some of these same claims, and also alleged that Dr. Henry delayed the start of Respondent's interview by two hours and took breaks during the interview, which resulted in Respondent missing his return flight; that Dr. Henry had committed malpractice and that Quest Diagnostics recommended that Dr. Henry's conduct be reported to the Illinois Department of Financial and Professional Regulation; and that Dr. Henry should have recused himself from the matter because Dr. Henry had previously testified in the interest of police officers.

During his testimony at Respondent's hearing, Dr. Henry denied these allegations.

The board agreed with the hearing committee that the mental health issues required a fitness requirement for reinstatement. (Mike Frisch)

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