Washington Lawyer

Bar Counsel: Factoring Disabilities Into Discipline: A Special Equation

From Washington Lawyer, June 2003

By Joyce E. Peters

barcounselDisciplinary cases frequently involve more than simply an examination of the alleged ethical misconduct. They often become inquiries not only into the manner in which an attorney is practicing but also into very personal aspects of the attorney’s life and practice: health and medical issues, family concerns, substance use or abuse, intra-office relationships, “off-duty” activities, and psychological or mental issues.[1] These considerations are important because the disciplinary system does not exist to punish lawyers. As the District of Columbia Court of Appeals has often stated:

In determining the proper sanction, our foremost concern is the need to protect the public, the courts, and the legal profession. . . . Our purpose in conducting disciplinary proceedings and imposing sanctions is not to punish the attorney; rather, it is to offer the desired protection by assuring the continued or restored fitness of an attorney to practice law.[2]

District of Columbia Bar Rule XI, § 2(a), states:

The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law. (Emphasis added.)

In In re Williams[3] the court, in discussing the disciplinary system and the purpose behind the disciplinary rules, stated: “The disciplinary rules protect clients from wayward attorneys, maintain the integrity and competence of the legal profession, and save the judicial process from corruption.”

To serve the public and the bar’s professional interests, the questions raised in a disciplinary hearing necessarily include not only what happened but also why it happened and whether it will happen again. The disciplinary system examines the specific events surrounding the misconduct and draws conclusions about whether the lawyer can meet the professional standards and serve future clients without causing them harm. It also examines whether the credibility or standing of the bar is adversely affected by the lawyer’s conduct, and whether, by identifying the misconduct and imposing a sanction, the lawyer can avoid a recurrence and the public can be protected. In conducting this analysis, the hearing committees, the Board on Professional Responsibility, and ultimately the court must necessarily consider the misconduct in its context. Thus, issues of disability and incapacity often arise in disciplinary cases, and these issues can significantly affect the choice of an appropriate disciplinary sanction.

Cases involving lawyers who have disabilities or are incapacitated can occur in a variety of ways. The leading case in the area of disabilities and mitigation is In re Kersey,[4] a case decided in 1987 involving 24 violations of the Code of Professional Responsibility including dishonesty and deceit. In Kersey the court recognized that although other jurisdictions that had considered the issue of alcoholism had not generally treated alcoholism as a complete defense to a disciplinary action, many jurisdictions had treated alcoholism as a mitigating factor. The court noted, “[W]e cannot ignore the reality that [Kersey’s] alcoholic condition, which is currently under control, has been, to an extent, a causal factor in this misconduct.”[5] The court concluded that “alcoholism is a mitigating factor to be considered in determining discipline.”[6] In addition, the court commented on the significance of evidence of rehabilitation to the determination of sanction, stating: “Ordinarily, the rehabilitation of the attorney’s professional conduct does not play a major role in our choice of discipline. However, when alcoholism has been a causal factor leading to professional misconduct, rehabilitation from that condition will be considered a significant factor in imposing discipline.”[7] Thus, the decision in Kersey made it clear that evidence of alcoholism could be considered not in defense, but as a mitigating factor in a case involving serious ethical misconduct, and that evidence of rehabilitation was very important in determining the appropriate sanction.

Since the decision in Kersey, the court has considered a variety of situations in which attorneys have sought to use disabling conditions to mitigate sanctions in cases of serious misconduct. In In re Reid[8] the court applied the Kersey doctrine in a reciprocal case from Maryland involving intentional misappropriation and alcoholism. By presenting evidence showing that his alcoholism had caused his misconduct, Reid obtained mitigation from disbarment (the reciprocal sanction that otherwise would have been appropriate and mandated under the rule in In re Addams[9]) to disbarment stayed in favor of five years of probation with conditions. The decision in Reid made clear that it is irrelevant whether the case arises as an original prosecution or as a reciprocal action based on discipline imposed in a sister jurisdiction; the Kersey doctrine can apply in either.

In considering various disabilities, the court has developed a three-pronged legal test for determining when an attorney may qualify for a reduced sanction. The court explicitly reiterated this test in In re Lopes,[10] stating:

In order to qualify for a reduced sanction under the Kersey doctrine, [the attorney is] required to demonstrate
(1) by clear and convincing evidence that he had a disability;
(2) by a preponderance of the evidence that the disability substantially affected his misconduct; and
(3) by clear and convincing evidence that he has been substantially rehabilitated.[11]

The burden to demonstrate the existence of a disability warranting mitigation of sanction in a serious case is clearly on the attorney under this test. Once Bar Counsel has proven the misconduct by clear and convincing evidence, the attorney must produce sufficient evidence to meet each prong of this test, or the attorney’s effort to obtain mitigation of a severe sanction will fail.

The Rules of the Board on Professional Responsibility contain detailed procedures on how an attorney seeking to present evidence of a disability in mitigation (i.e., a Kersey defense) should proceed. Board Rule 7.6 requires the attorney to file a notice with the board’s office on the same date that the attorney files an answer to a disciplinary petition. Failure to do so operates as a waiver of the right to present such evidence under Board Rule 7.6(a) unless the attorney can meet the requirements for an out-of-time filing contained in Board Rule 7.6(d). By filing the notice with the board, the attorney is alerting the board to a disability condition that may affect the attorney’s fitness to practice law. The board may then determine whether to appoint a practice monitor or impose other conditions on the attorney’s practice pending consideration of the disciplinary matter. Board Rule 11.2 outlines when and how mitigation evidence is presented to the hearing committee.

The court has applied the Kersey doctrine to mitigate disciplinary sanctions in a variety of situations involving serious misconduct. Respondents have successfully invoked the Kersey doctrine based on evidence of abuse of lawfully obtained prescription drugs,[12] chronic depression and dysthemia,[13] and bipolar disorder.[14] The court, however, refused to apply the Kersey doctrine in In re Marshall,[15] a case involving addiction to cocaine. In Marshall the court found that the lawyer’s addiction resulted from criminal conduct (i.e., his own intentional violation of the law), and concluded that “an attorney who commits disciplinary offenses warranting disbarment, and then seeks assistance [for a drug problem] only after he has been apprehended, comes too late with his rehabilitation defense to merit the consideration of the court.”[16] Marshall was disbarred for misappropriation of client funds and submitting fabricated documents to Bar Counsel.

So what happens if a lawyer attempts to use the Kersey doctrine but fails to establish one of the three prongs to qualify for mitigation? At worst a failed effort to develop Kersey evidence in a disciplinary proceeding could produce evidence in aggravation or lead to the imposition of a fitness requirement by the court. Failure to establish the existence of a disability (the first prong) would be fatal to use of the Kersey doctrine. Without proof of a disability, the Kersey doctrine cannot be used to mitigate the sanction. A hearing committee could, however, consider whatever evidence the attorney produced as part of its analysis of the context of the misconduct, but it could not recommend a probationary sanction because of a Kersey-style disability.

If the lawyer establishes the existence of a disability but fails to establish that the disability is substantially related to the misconduct (the second prong), the lack of a nexus to the misconduct would make the disability irrelevant in the determination of a sanction. In fact, this has happened. In 1991 the court held in In re Temple[17] that addiction to prescription drugs lawfully obtained may be treated as a mitigating factor in sanctioning an attorney for misconduct. But in In re Woodard, decided in 1994, the court agreed with the findings of the board that the attorney had failed to prove “either that the addiction substantially affected his professional conduct or that he was substantially rehabilitated.”[18] The court then disbarred Woodard for repeated acts of reckless misappropriation of client funds.

Similarly, in In re Lopes,[19] a consolidated case involving three original matters and a reciprocal, all of which involved primarily allegations of neglect and dishonesty in violation of more than a dozen rules, the attorney presented evidence of serious health problems, including depression and severe side effects from prescription medicine. The hearing committee found that “Lopes’ various infirmities substantially caused all of his misconduct, including not only his neglect of his clients’ matters, but also his acts of dishonesty and forgery,"[20] and recommended mitigating the sanction to a 60-day suspension stayed in favor of probation for one year with certain conditions (restitution and completion of a continuing legal education course).

The board agreed that the sanction should be mitigated, but only with regard to the neglect charges and related violations. The board concluded that Lopes’s conduct involving dishonesty was not related to his disabilities, so that Kersey principles did not apply. The board concluded:

Dishonesty cuts away at the heart of the legal profession. We are not inclined to diminish the seriousness of that misconduct by relying on too tenuous a link between dishonesty and physical or psychological impairments. The physical and psychological impairments under which [the attorney] labored undeniably were extremely difficult. We agree with the Hearing Committee that the picture [the attorney] painted of what he felt and experienced for a number of years was credible and sympathetic. There is no evidence, however, that the physical and psychological impairments, separately or in combination, either rendered [the attorney] unable to understand that he was being dishonest or unable to behave otherwise. Absent such evidence, we cannot conclude that the ailments were “sufficiently determinative of his conduct” to support a Kersey defense.[21]

The difficulty here was that the Kersey defense was not complete, so the entire suspension would not be mitigated and stayed in favor of probation or probation with conditions. The court agreed, saying: “We agree entirely with the Board’s refusal to apply Kersey to Lopes’ ’dishonesty’ violations, but we also find substantial support in the record for the Board’s finding that Lopes demonstrated the requisite causal nexus between his disabilities and his neglect and related violations.”[22] The court also accepted the board’s conclusion that Lopes had presented sufficient evidence of rehabilitation and ordered Lopes suspended for six months,[23] coupled with two years of probation with requirements for restitution and compliance with other conditions prior to reinstatement. The court did not impose a fitness requirement, which could have been the worst case of a failed Kersey defense, or the result of a failure to establish the third prong of the Kersey test: proof of substantial rehabilitation.

The Lopes decision highlights the danger to an attorney of using disability evidence in a disciplinary proceeding. Although the evidence may serve to clarify the circumstances in which the misconduct occurred, the attorney’s failure to establish the appropriate nexus with the misconduct will prevent the attorney from being able to obtain mitigation under the Kersey doctrine. Moreover, any indication that the attorney has a present disability and cannot show clear and convincing evidence of rehabilitation may raise issues of fitness to practice.

The imposition of a fitness requirement by the court, whether for disability or any other reason, is a serious matter. When a fitness requirement is imposed, a lawyer seeking reinstatement has the burden of proving fitness by clear and convincing evidence. This is often an onerous burden.

Accordingly, in choosing to add disability into the disciplinary process in an effort to obtain mitigation of sanction, especially in cases of serious misconduct, attorneys should carefully research the proper procedures for asserting a disability and recognize how using evidence of a disability may change the process and outcome. Attorneys should then factor those considerations into their defense decisions.

Notes

[1] A good example of the personal nature of the inquiry that may be conducted in a disciplinary matter can be found in In re Clancy, 675 A.2d 493 (D.C. 1996). Clancy was a reciprocal case from Maryland involving allegations of neglect, commingling, and failure to respond to disciplinary authorities. The 63-year-old attorney was placed on inactive status in Maryland by consent after he acknowledged his inability to meet the demands of his solo practice because of his own medical condition and that of a close family member. The record indicated that the attorney had been hospitalized and was under a doctor’s continuing medical care because of stress related to his wife’s longstanding medical problems. He also suffered from diabetes and high blood pressure. The court imposed functionally equivalent reciprocal discipline in the form of an indefinite voluntary suspension with reinstatement conditioned upon a showing that his disability had ended under D.C. Bar R. XI, § 13(g). In essence, the court made a determination that the circumstances that led to the allegations of misconduct raised questions about the attorney’s personal and professional fitness. No determination of the merit of the misconduct allegations was made; the case was resolved on the basis of disability in both Maryland and the District of Columbia. D.C. Bar R. XI, § 13, titled “Incompetent and Incapacitated Attorneys,” contains specific procedures for handling cases in which incapacity or incompetency (physical or mental) raises questions about an attorney’s ability to continue in the ethical practice of law.
[2] In re Steele, 630 A.2d 196, 200 (D.C. 1993) (emphasis added) (citations and footnote omitted). “The purpose of imposing discipline is to serve the public and professional interests identified and to deter future and similar conduct rather than to punish the attorney.” In re Goffe, 641 A.2d 458, 464 (1994) (citing In re Kennedy, 542 A.2d 1225, 1231 (D.C. 1988), and In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987)).
[3] 513 A.2d 793, 795 (D.C. 1986).
[4] 520 A.2d 321 (D.C. 1987).
[5] Id. at 322.
[6] Id. at 326. The court reached this conclusion after a lengthy discussion of the effects of alcoholism on behavior, the nexus between Kersey’s alcoholism and his misconduct and the significant evidence of Kersey’s rehabilitation after his participation in a detoxification program. The court ordered Kersey disbarred but stayed the disbarment in favor of five years of probation with conditions, including total abstinence from the use of alcohol with verification by a sobriety monitor, supervision of his practice by a practice monitor, and supervision of his financial activities by a financial monitor. Significant to the court’s decision was the fact that Kersey had demonstrated that “but for” his alcoholism, the misconduct would not have occurred. This finding of nexus to the misconduct was critical to the court’s sanction determination.
[7] Id. at 327.
[8] 540 A.2d 754 (D.C. 1988).
[9] 579 A.2d 190 (D.C. 1990 ) (en banc).
[10] 770 A.2d 561 (D.C. 2001).
[11] Id. at 567.
[12] In re Soininen, 783 A.2d 619 (D.C. 2001); In re Woodard, 636 A.2d 969 (D.C. 1994); In re Temple, 596 A.2d 585 (D.C. 1991).
[13] In re Katz, 801 A.2d 982 (D.C. 2002); In re Lopes, 770 A.2d 561 (D.C. 2001); In re Drury, 683 A.2d 465 (D.C. 1996); In re Peek, 565 A.2d 627 (D.C. 1989).
[14] In re Larsen, 589 A.2d 400 (D.C. 1991). However, in In re Appler, 669 A.2d 731 (D.C. 1995), the court refused to apply the Kersey doctrine to mitigate the disbarment of a lawyer who had stolen more than a million dollars. Although the court found that the lawyer’s bipolar disorder did cause the misconduct, it found the evidence of rehabilitation insufficient in light of the great harm done by the attorney.
[15] 762 A.2d 530 (D.C. 2000).
[16] Id. at 539.
[17] 596 A.2d 585 (D.C. 1991).
[18] 636 A.2d 969, 970 (D.C. 1994).
[19] 770 A.2d 561 (D.C. 2001).
[20] Id. at 568.
[21] Id. at 568–69 (court quoting from the board’s report) (citations omitted).
[22] Id. at 569.
[23] The court ordered the suspension nunc pro tunc to July 28, 1998, so that Lopes, who had already been suspended for more than three years during the pendency of his case, would not be further suspended. The court, however, required Lopes to enter into a probation agreement with the board before resuming the practice of law.

Disciplinary Actions Taken by the Board on Professional Responsibility

PARIS A. ARTIS. Bar No. 181396. March 10, 2003. The board recommends that the court suspend Artis for 30 days with reinstatement conditioned upon his compliance with Bar Counsel’s subpoena duces tecum and the court order enforcing it. The board found that Artis violated Rule 8.4(d) and D.C. Bar R. XI, § 2(b)(3), by failing to comply with a board order compelling responses to Bar Counsel’s written inquiries and failing to respond to Bar Counsel’s subpoena duces tecum and the court order enforcing the subpoena. One member of the board, writing on behalf of himself and another board member, concurred with the board insofar as it ruled that Artis violated Rule 8.4(d) by not responding to the subpoena after it was ordered enforced by the court, but dissented from the board’s finding that Artis violated Rule 8.4(d) by refusing to comply with the board order compelling him to respond to Bar Counsel’s set of six questions.

SAMUEL BAILEY JR. Bar No. 384974. February 27, 2003. A majority of the board recommends that the court suspend Bailey from the practice of law for nine months, with a requirement that he complete courses in ethics and in trust accounting (each at least three hours) as a condition of reinstatement. All board members found that Bailey, while retained to represent a plaintiff in a personal injury matter, violated Rule 1.15(a) by commingling and failing to keep trust account records, and Rule 1.8(a) by engaging in an improper business transaction with a client without providing information regarding prevailing interest rates or advice to seek independent counsel regarding the loan transaction. A majority of the board agreed that Bailey violated Rule 1.15(b) by failing to notify a third-party medical provider promptly upon the receipt of funds. One member of the board, writing on behalf of himself and three other board members, concurred as to sanction, but found that Bailey’s misconduct constituted negligent misappropriation under Rule 1.15(a) and a violation of Rule 1.15(b) for failing to pay a third-party medical provider promptly. Another member of the board, writing on behalf of himself and one other board member, found no violation of Rule 1.15(b), concurred that Bailey did not engage in misappropriation in violation of Rule 1.15(a), and recommended a six-month suspension for engaging in commingling and failing to maintain complete trust account records.

JERRY S. DUNIETZ. Bar No. 362906. March 28, 2003. In this reciprocal matter from Maryland, the board recommends that the court impose identical reciprocal discipline and disbar Dunietz. The Maryland authorities found that Dunietz neglected two matters for his client, and told his client that the matters were being handled, when in fact they were not, in violation of Maryland Rules 1.1, 1.3, 1.4(a) and (b), 1.16(a)(2) and (d), 8.1(b), and 8.4(c) and (d). Dunietz did not contest the imposition of reciprocal discipline.

SAMUEL G. KOORITZKY. Bar No. 366964. March 5, 2003. The board recommends that the court disbar Kooritzky by consent.

KENNETH D. PACK. Bar No. 431519. February 27, 2003. In a reciprocal matter from Maryland, the board recommends that the court impose identical reciprocal discipline and disbar Pack. Pack was disbarred in Maryland for various disciplinary violations in two matters, involving neglect of client matters, dishonesty, and conduct prejudicial to the administration of justice. In one matter Pack failed to serve a summons and complaint on the defendant; created a false document purporting to be an order of the Circuit Court for Baltimore County and signed a judge’s name to that document; falsified an answer to the complaint, purportedly on behalf of the defendant; signed another attorney’s name to the “pleading"; knowingly misrepresented the status of the matter to other members of his firm; and failed to advise the firm or the client that the matter was dismissed for lack of prosecution. In a second matter Pack took possession of clients’ original documents and medical records, failed to keep that property safe, failed to keep the clients advised of the status of the case, failed to advise the clients that he was withdrawing from the case, and failed to return the clients’ property upon their request. The Maryland court found that Pack violated Maryland Rules of Professional Conduct 1.1 (failure to provide competent representation); 1.3 (failure to act with reasonable diligence and promptness in representing a client); 3.2 (failure to make reasonable efforts to expedite litigation); 8.1(b) (failure to respond to a lawful demand from a disciplinary authority); 8.4(c) (conduct involving dishonesty); and 8.4(d) (conduct prejudicial to the administration of justice).

ROBERT BROWN PATTERSON. Bar No. 176305. February 20, 2003. The board recommends that the court disbar Patterson based on his criminal conviction for theft of property valued in excess of $1,000 belonging to the United States government, in violation of 18 U.S.C. § 641, a crime that involves moral turpitude per se for which disbarment is mandated by D.C. Code § 11-2503(a) (2001).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

DAVID E. EDMONDS. Bar No. 462663. February 27, 2003. In a reciprocal matter from Massachusetts, the court imposed identical reciprocal discipline and suspended Edmonds for one year and one day, with reinstatement conditioned upon Edmonds’s proof of his fitness to practice. The Massachusetts suspension was based on Edmonds’s abandonment of his position as an assistant attorney general for the commonwealth of Massachusetts, failure to cooperate with the Massachusetts bar counsel, and failure to abide by the terms of a previously imposed administrative suspension.

GEOFFREY P. KELLY. Bar No. 396379. February 6, 2003. The court disbarred Kelly based on his conviction on a plea of guilty to one count of bank fraud. The court noted that bank fraud is a crime of moral turpitude per se for which disbarment is mandated by D.C. Code § 11-2503(a) (2001).

SAMUEL G. KOORITZKY. Bar No. 366964. March 27, 2003. The court disbarred Kooritzky by consent.

JONATHAN S. RESNICK. Bar No. 372786. February 6, 2003. In a reciprocal matter from Maryland, the court publicly censured Resnick, the functional equivalent to the public reprimand imposed in Maryland. In the Maryland proceeding Resnick stipulated to having “entered into a business transaction with [a] client concerning certain literary or media rights to a portrayal or account based upon information relating to the representation without advising the client to seek advice of independent counsel.” In addition, Resnick stipulated that “at the conclusion of the representation, a sum of money . . . remained unaccounted for to him.”

SYLVIA ANITA RYAN. Bar No. 386828. February 20, 2003. In a reciprocal matter from New York, the court imposed identical reciprocal discipline and disbarred Ryan. The New York court disbarred Ryan for entering her appearance in four cases before the Board of Immigration Appeals as a member in good standing of the New York Bar while she was suspended and for failing to cooperate in the disciplinary investigations of that and other alleged misconduct.

ALLEN M. SHORE. Bar No. 230649. February 27, 2003. The court disbarred Shore based upon his conviction of RICO conspiracy in the Circuit Court of Broward County, Florida, finding that the RICO conspiracy conviction involves moral turpitude per se for which disbarment is mandated by D.C. Code § 11-2503(a) (2001). The RICO conviction was based on Shore’s plea of guilty and admission that he engaged in fraudulent mortgage transactions, in criminal violation of Florida’s organized fraud and theft statutes.

HENDRITH V. SMITH. Bar No. 453651. February 27, 2003. The court disbarred Smith for commingling and reckless misappropriation. Smith deposited settlement funds of a client into his operating account. He then failed to maintain sufficient funds to cover the amount owed to his client and third parties and knowingly used settlement funds for personal purposes during the period that he held the funds. The court found that Smith violated Rule 1.15(a) by commingling and engaging in reckless misappropriation and Rule 1.17(a) by failing to place client funds in a specifically designated account.

JOHN M. SPIRIDON. Bar No. 428916. February 13, 2003. The court denied Spiridon’s petition for reinstatement.

Informal Admonitions Issued by the Office of Bar Counsel

NNAMDI O. ANYA. Bar No. 464648. January 31, 2003. Bar Counsel issued Anya an informal admonition for failing to communicate the rate or basis of his fee in writing to his client.

PATRICIO ARANDA-CODDOU. Bar No. 448388. March 4, 2003. Bar Counsel issued Aranda-Coddou an informal admonition for practicing law in a jurisdiction without first being properly admitted to the bar; failing to provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparedness reasonably necessary for the representation; and failing to represent a client zealously and diligently within the bounds of the law.

DAVID L. HILTON. Bar No. 173948. January 29, 2003. Bar Counsel issued Hilton an informal admonition for failing to notify promptly and to pay the undisputed portion of the client’s settlement funds to a third-party medical provider.

ANNA OCHOA COHEN. Bar No. 419037. March 4, 2003. Bar Counsel issued Ochoa Cohen an informal admonition for failing to communicate a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; failing to provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparedness reasonably necessary for the representation; and failing to serve a client with the skill and care commensurate with that generally afforded to clients by other lawyers in similar matters.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/ dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.