Wednesday, July 1, 2020

Mitigation Not Proven

An attorney's felony child pornography conviction has led to an indefinite suspension of at least five years by the Minnesota Supreme Court

Strunk testified at the disciplinary hearing that he voluntarily suspended his practice, completed a psychosexual evaluation, and enrolled in out-patient therapy. A clinical psychologist testified to Strunk’s participation and progress in out-patient treatment at Alpha Human Services. Although she testified that Strunk’s “official diagnosis” was “Unspecified Paraphilic Disorder,” she offered no testimony describing its diagnostic criteria or qualifying Strunk’s unspecified paraphilia.

The Administrator challenged the consideration of mitigating evidence

After the Director has proven misconduct, the burden shifts to the attorney to prove a mitigating psychological disorder. Farley, 771 N.W.2d at 861. The attorney must prove, by clear and convincing evidence, that: (1) the attorney has a severe psychological disorder; (2) the psychological disorder directly caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. Weyhrich, 339 N.W.2d at 279; see Farley, 771 N.W.2d at 862 (discussing severity and direct causation). We only consider psychological disorders as mitigating factors for intentional misconduct if the lawyer has proven all of the Weyhrich factors. In re Mayne, 783 N.W.2d 153, 161 (Minn. 2010). Here, the first two Weyhrich elements are in dispute.

As to severity

None of the evidence presented meets the severity test. As the referee acknowledged, “[t]he record and the testimony does not directly address” whether “Unspecified Paraphilic Disorder” is a severe psychological disorder. Although the evidence necessary to establish the severity of a diagnosis may differ in each case, we conclude that a reference to a diagnosis of “Unspecified Paraphilic Disorder” is not enough, by itself, to meet the exacting Weyhrich standard.

Sanction

The damage to the legal profession incurred when its members commit serious crimes cannot be easily undone. Here, the harm that Strunk caused to the public and the legal profession is significant. Strunk possessed nearly 100 pornographic images of child victims of abuse and sexual exploitation, including infants. The possession and distribution of pornography harms the victims long after the original photograph was taken. By distributing pornographic images to others, Strunk perpetuated the harm caused to his absolutely vulnerable child victims through republication, and facilitated the criminal desires of others. Moreover, Strunk knew that his conduct was wrong, and he took affirmative steps to evade detection. Strunk’s criminal conduct was intentional, ongoing, and done with the express belief that he would not be caught. The harm that Strunk caused to the public and the profession was very serious.

No credit for self-suspension because of the requirements for an actual suspension

"Self-suspension” carries no similar assurances of transparency or accountability. Because the “primary purpose of disciplinary action is ‘to guard the administration of justice and to protect the courts, the legal profession, and the public,’ ” we reject Strunk’s request that we relax our standards for suspension to give him credit.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/07/an-attorneys-felony-child-pornography-conviction-has-led-to-an-indefinite-suspension-by-the-minnesota-supreme-court-strunk-t.html

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