Mental Health Issues And Bar Discipline

The Minnesota Supreme Court has imposed a suspension of 120 days with a dissent over the necessity of a petition for reinstatement

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action and a supplementary petition for disciplinary action alleging that respondent John P. Horst committed professional misconduct warranting public discipline—namely, neglecting seven client matters, failing to communicate with seven clients, making false statements to five clients to conceal his neglect, failing to return unearned fees to three clients, providing incompetent representation to a client, failing to provide accountings of how he earned fees to four clients, failing to provide two clients with copies of their files upon termination of representation, failing to place two clients’ funds in trust, and failing to cooperate in five disciplinary investigations.

Mental health issues

Contrary to the dissent’s suggestion, the discipline we impose today is not inconsistent with our commitment to lawyer well-being, especially with respect to mental health. By recognizing Horst’s depression as a mitigating factor, we have accounted for Horst’s mental health and the important and laudable steps he has taken to address the root cause of his  misconduct. 

Footnote

The dissent contends that Nielsen does not support our conclusion that we have accounted for Horst’s depression and extraordinary stress when deciding that a 120-day suspension is appropriate. The dissent is simply mistaken. Just like in this case, the Director in Nielsen submitted a memorandum with the stipulation for discipline explaining why the recommended discipline was appropriate. In the memorandum in Nielsen, the Director stated that given the nature of the misconduct, a suspension of longer than four months would be warranted if significant mitigating factors were not present. The Director then explained Nielsen’s mental health issues, the treatment he had been receiving, and his extreme stress. And our order suspending Nielsen for four months acknowledged that “the parties indicate that respondent raised several issues in mitigation to the Director.” Nielsen, 864 N.W.2d at 627.

Dissent of Justice Thissen

Horst and the Director further agreed to recommend that Horst be suspended for 120 days, that the requirement that he petition for reinstatement be waived, and that Horst practice for two years on supervised probation if he resumes practicing law. I dissent because the court insists that Horst petition for reinstatement; a process that will add significant time—likely several months—to the length of his suspension.

Pending a change to the rules discussed below that we ordered over a year ago, under Rule 18(a)–(d), (f), RLPR, a lawyer who is suspended for more than 90 days must petition for reinstatement. But Rule 18(f), RLPR, authorizes us to waive the requirement that the lawyer petition for reinstatement and allow the lawyer to seek reinstatement by affidavit. The Director believes that requiring a petition for reinstatement is not necessary to fulfill the purpose of discipline...

I do not see any compelling reasons to reject the considered judgment of the Director that a petition for reinstatement is not necessary to protect the public and deter future misconduct. The record discloses that Horst is taking important steps to address the root cause of his misconduct and there is no evidence in the record before the court to contradict those disclosures. Further, the proposed conditions of supervised probation provide additional protection to the public.

(Mike Frisch)