Tuesday, September 14, 2021

Home Remedies

The New Jersey Supreme Court ordered a public censure in a case of first impression, rejecting the majority recommendation of its Disciplinary Review Board for a suspension and favoring non-suspension as advocated for by a dissenting member.

From the majority report 

On February 2, 2018, at approximately 2:50 p.m., respondent was packing her personal belongings to move to a new home. Her friend, M.C., who was assisting her, picked up a black bag containing respondent’s 9-millimeter semiautomatic handgun, which respondent lawfully owned and had registered. Respondent took the bag, checked to see whether the gun was loaded, and attempted to secure it for proper transport. While respondent was attempting to secure the gun, it fired, and a bullet traveled through a wall, striking a minor in the home, in the area of the minor’s right thigh and buttock.  After the minor screamed that the minor had been shot, respondent and M.C. examined the minor’s bleeding wound, cleaned it with betadine and peroxide, and wrapped it with a sweatshirt that had been on the floor. They failed to summon medical or emergency assistance.

At approximately 2:55 p.m., respondent telephoned Wouter Smits, her former husband, who is a part-time emergency medical technician (EMT) and surgical technician, to ask him to examine the minor’s wound. Because Wouter did not answer the telephone, respondent left a voice message requesting a return call, but did not reveal that the minor had been shot.

When Wouter returned respondent’s call at approximately 3:30 p.m., respondent informed him of the discharge of the gun and the injury to the minor. Wouter replied that he would examine the wound after he went to Home Depot to purchase painting supplies for respondent’s new home. At approximately 4:15 p.m., Wouter arrived, examined the minor, and stated that the wound likely required stitches.

The report details further delays in seeking medical treatment

The treating trauma physician, Dr. John A. Adams, opined that, although there was no permanent damage to the minor, when a bullet travels through materials, as it did in this case, there is a risk that embedded material on the bullet could enter the body and cause infection. Dr. Adams stated that a gunshot wound victim immediately should be taken to the hospital for proper diagnosis and medical treatment

Criminal charges were brought

On July 9, 2018, respondent waived indictment and entered a guilty plea via an accusation charging fourth-degree neglect...

She stipulated to the ethical violation

In sum, we find that respondent violated RPC 8.4(b). The sole issue left for us to determine is the appropriate quantum of discipline for respondent’s misconduct.

Respondent’s criminal conduct presents us with a case of first impression. The Court has never disciplined a New Jersey attorney for such misconduct – failing to seek medical attention for a minor after inflicting the minor with a gunshot wound. The following cases provide some direction for the appropriate quantum of discipline.

Sanction

On balance, we determine that a three-month suspension is the quantum of discipline necessary to protect the public and preserve confidence in the bar. Member Singer voted to impose a reprimand and filed a dissent.

From the dissent

In short, respondent, with a heretofore unblemished ethics history in twenty-four years of practice, made a single mistake of judgment, unrelated in any way to her representation of clients. Her suspension is not supported by any of the cited precedent. Nor are there any aggravating factors to justify it. She reported her conviction quickly to ethics authorities, cooperated fully with them entering into a disciplinary stipulation, and took responsibility for her actions. Her mistake in judgment, made under unique circumstances, is virtually certain not to be repeated and a suspension is unnecessary to protect the public or preserve public confidence in the bar. In short, a reprimand is adequate and fair discipline in this case.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/09/from-the-majority-report-of-the-disciplinary-review-board-on-february-2-2018-at-approximately-250-pm-respondent-was-pa.html

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