2001 Caselaw Review. Contents. I. Alcohol or Drug Use as Grounds for Discipline or an Aggravating Circumstance

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1 2001 Caselaw Review Contents I. Alcohol or Drug Use as Grounds for Discipline or an Aggravating Circumstance In re Allred, 2001 WL (New Mexico 2001) In re Carrigan, 726 NYS 2d 538 (New York 2001) In re Haith, 742 N.E. 2d 940 (Indiana 2001) In re Lockett, 17 P. 3d 640 (Kansas 2001) In re Brehmer, 620 N.W. 2d 544 (Minnesota 2001) In re Howard, 765 A. 2d 39 (Delaware 2001) In re Marshall, 762 A. 2d 530 (District of Columbia 2001) II. Admission and Reinstatement After Mental Illness or Alcohol/Drug Use In re Terrones, 2001 WL (California 2001) In re Fuller, 621 N.W. 2d 460 (Minnesota 2001) In re Ogilvie, 623 N.W. 2d 44 (South Dakota 2001) III. Mitigation Based on Alcohol And/Or Drug Addiction In re Goldstein, 2001 WL (New York 2001) In re Conway, 2001 WL (Georgia 2001) Office of Disciplinary Counsel v. Cushion, 749 N.E. 224 (Ohio 2001) In re Wynne, 726 N.Y.S. 2d 111 (New York 2001) In re Zamora, 21 P. 3d 30 (New Mexico 2001) i

2 In re Dolin, 721 N.Y.S. 2d 669 (New York 2001) Bamberger v. Kentucky Bar Association, 36 S.W. 3d 758 (Kentucky 2001) Cuyahoga County Bar Association v. Kraus, 740 N.E. 2d 1092 (Ohio 2001) In re Childers, 540 S.E. 2d 606 (Georgia 2001) In re Jensen, 712 N.Y.S. 2d 233 (New York 2001) In re Stemke, 539 S.E. 698 (South Carolina 2001) Office of Disciplinary Counsel v. Griffith, 737 N.E (Ohio 2001) Kentucky Bar Association v. Hickey, 31 S.W. 3d 434 (Kentucky 2001) Office of Disciplinary Counsel v. Gettys, 737 N.E. 2d 29 (Ohio 2001) IV. Mitigation Base on Mental Illness In re Roxborough, 2001 WL (District of Columbia 2001) Cuyahoga County Bar Association v. Belkin, 748 N.E. 2d 21 (Ohio 2001) In re Jellinger, 625 N.W. 2d 143 (Minnesota 2001) In re Silver, 545 S.E. 2d 885 (Georgia 2001) In re Lopes, 770 A. 2d 561 (District of Columbia 2001) In re Cohen, 8 P. 3d 953 (Oregon 2001) State of Oklahoma v.abbott, 11 P. 3d 1239 (Oklahoma 2001) V. No Mitigation Based on Mental Illness In re Rudman, 2001 WL (Louisiana 2001) In re MacLean, 774 A. 2d 888 (Rhode Island 2001) In re Meaden, 628 N.W. 2d 129 (Minnesota 2001) In re Wierderholt, 24 P. 3d 1219 (Alaska 2001) ii

3 Attorney Grievance Commission of Maryland v. Vandelinde, 773 A.2d 463 (Maryland 2001) In re Weisband, 25 P. 3d 24 (Colorado 2001) Kentucky Bar Association v. Wong, 44 S.W. 3d 779 (Kentucky 2001) In re Campbell, 21 P. 3d 1147 (Washington 2001) Iowa Supreme Court Bd. Of Professional Ethics v. Adams, 623 N.W. 815 (Iowa 2001) In re Neal, 20 P. 3d 121 (New Mexico 2001) In re Hull, 767 A. 2d 197 (Delaware 2001) VI. Sexual Behavior as Grounds for Discipline Attorney Grievance Commission of Maryland v. Childress, 770 A. 2d 685 (Maryland 2001) VII. Gambling In re Petilla, 2001 WL (California 2001) In re Lallo, 768 A. 2d 921 (Rhode Island 2001) In re Kouros, 735 N.E. 2d 202 (Indiana 2001) VIII. Criminal Conviction for Drug Offense In re Lock, 2001 WL (Texas 2001) Attorney Grievance Commission of Maryland v. Black, 766 A. 2d 119 (Maryland 2001) iii

4 2001 Caselaw Review I. Alcohol or Drug Use as Grounds for Discipline or an Aggravating Circumstance In re Allred, 2001 WL (New Mexico 2001) Three-year suspension, with second and third years deferred, was sanctioned for neglect and failure to communicate with clients, even though Allred claimed the conduct was the result of mental stress and alcohol use. Respondent had been disciplined in 1989 and at that time had been ordered to receive counseling for alcohol abuse. He did abstain from alcohol for a year after the 1989 disciplinary hearing but did not attend counseling. The Court believed that the counseling could have prevented respondent s abstinence from lasting only one year. In re Carrigan, 726 N.Y.S. 2d 538 (New York 2001) Carrigan was disbarred for delegating to his paralegal responsibility to finalize an estate, which resulted in a loss to the estate of $80,000, and continuing to practice law after being served with an order of suspension. The respondent raised his addiction to cocaine as a mitigating factor. The Court rejected this defense holding that respondent had not demonstrated that he had overcome his addiction. In re Haith, 742 N.E. 940 (Indiana 2001) Haith was convicted twice of operating a motor vehicle while intoxicated and convicted once of operating a vehicle with a blood alcohol content of at least.10%. The Court found that, by virtue of the acts underlying those convictions, he engaged in criminal acts reflecting adversely on his fitness as a lawyer. The Court found as an aggravating factor respondent s failure to abstain from the use of alcohol or to acknowledge his alcohol dependency and his failure voluntarily to seek long-term treatment. In re Lockett, 17 P. 3d 640 (Kansas 2001) Lockett given an indefinite suspension rather than probation for failure to communicate with client, attend depositions, timely respond to discovery requests, respond to court order to show cause, and provide written response to the disciplinary complaint. The disciplinary panel recommended probation. The court rejected the recommendation. It found that the panel made a compelling case for probation in which the court might have concurred had Lockett appeared before the court and verified that he was participating in drug counseling and treatment and was continuing to abstain from using illegal drugs. He failed to do either.

5 In re Brehmer, 620 N.W. 2d 554 ( Minnesota 2001) Attorney suspended indefinitely with a minimum of one year for neglect, fraudulent execution of client s affidavits, false statements and other misconduct. The court held that the burden is on the attorney in disciplinary proceedings to prove, by clear and convincing evidence, a psychological disability as a mitigating factor. In re Howard, 765 A.2d 39 (Delaware 2001) In 1999 Howard entered a plea of guilty to one count of criminal solicitation in the third degree and one count of possession of cocaine two drug related misdemeanors. A Board Panel entered into stipulated mitigating factors. One was that Howard suffered from personal or emotional problems. Another was that there was medical evidence that Howard was chemically dependent, and that the dependency caused the misconduct, and his recovery is demonstrated by a meaningful and sustained period of successful rehabilitation. The court did not believe the mitigating circumstance was outweighed by the aggravating circumstances, i.e. the illegal conduct. It concluded that the aggravating and mitigating circumstances offset each other. The recommended sanction of a two-year suspension was rejected and a three-year suspension was ordered. In re Marshall, 762 A.2d 530 (District of Columbia 2001) The Board on Professional Responsibility recommended that Marshall be disbarred for misappropriation of client funds and for submitting fabricated documents to Bar Counsel during the investigation. The Court of Appeals held that: (1) attorney s addiction to cocaine would not be considered in mitigation, where disbarment was warranted for his misconduct; (2) attorney was not qualified individual who would be protected by the ADA from disbarment; and (3) disbarment did not constitute discrimination based on disability under the ADA. The court flatly rejected the ADA defense(s). It held that any lawyer not addicted to cocaine would be disciplined in the same way, for the same reasons. The Lawyer Counseling Committee of the District of Columbia Bar (LCC) filed an amicus brief arguing that the illegality of cocaine possession should not be dispositive. The court stated that it was not holding that a lawyer with a drug problem who asks for assistance and treatment should be disciplined for his past possession of unlawful drugs alone. 2

6 II. Admission and Reinstatement After Mental Illness or Alcohol or Drug Use In re Terrones, 2001 WL (California 2001) Terrones filed a petition to lift his suspension. In 1995 he entered into a stipulation of facts and culpability, acknowledging that he had signed another attorney s name to a settlement draft and deposited the proceeds into his trust account. He also stipulated that he had misappropriated the proceeds of a settlement of a client s personal injury case. Prior to the conduct stipulated to, Terrones had become addicted to cocaine and alcohol. At his reinstatement hearing he demonstrated ongoing active recovery efforts and sobriety for a period of five years. The court held that an attorney s rehabilitation from alcoholism or other substance abuse is entitled to significant weight in mitigation if the attorney establishes these elements: (1) the abuse was addictive in nature, (2) the abuse causally contributed to the misconduct, and (3) the attorney has undergone a meaningful and sustained period of recovery. The court also stated that: Ultimately, the question remains whether petitioner is a fit and proper person to be permitted to practice. The court found that Terrones met the three-step test and reinstated him. In re Fuller, 621 N.W.2d 460 (Minnesota 2001) The Supreme Court held that attorney s improper withdrawal from representation of client, improper disclosure of confidences, failure to disclose source of attorney fees in violation of bankruptcy rules, and submission of false evidence warranted indefinite suspension with conditions for reinstatement. The respondent raised a psychological disability as a mitigating factor. A psychiatrist and psychologist evaluated Fuller. The psychiatrist concluded that Fuller suffered from a Paranoid Personality Disorder. The referee recommended an indefinite suspension with a 1-year minimum term citing Fuller s mental illness as a mitigating factor. The court rejected the recommendation holding that where a psychological disability is raised as a defense five factors must be proven: (1) that the attorney has a sever psychological problem; (2) that the psychological problem was the cause of the misconduct; (3) that the attorney is seeking treatment; (4) that the treatment has arrested the misconduct; and (5) that the misconduct is not likely to recur. The court concluded that the appropriate discipline is indefinite suspension with reinstatement conditioned on providing adequate psychological or other medical evidence that Fuller has no psychological problem that would prevent him from practicing law competently. 3

7 In re Ogilvie, 623 N.W. 2d 44 (South Dakota 2001) Ogilvie had been denied admission to practice law and filed a new petition. The Supreme Court held that he showed that he had the requisite moral character to warrant admission conditioned upon his participation in three-year mentorship program. At he hearing Ogilvie showed to the satisfaction of the Board that he had the requisite moral character. He appeared forthright and candid by listing two DUI convictions. He also presented evidence of his recovery via the testimony of an alcohol and drug counselor. 4

8 III. Mitigation Based On Alcohol And/Or Drug Addiction In re Goldstein, 2001 WL ( New York 2001) Attorney was censured after plea of guilty to operating a motor vehicle under the influence of alcohol. She admitted the charges and asked the court to consider her previously unblemished record, the mitigating circumstances to which she testified at the hearing, the testimony of two character witnesses, the punishment she had previously endured, and her remorse and efforts to rehabilitate herself. In re Conway, 2001 WL ( Georgia 2001) Conway admitted that while employed as in-house counsel for a company, he wrote four checks payable to himself, which he signed without authorization..and that the sole purpose was to support his drug and alcohol addiction. He was arrested after the theft was discovered. Immediately on being released on bond entered an in-patient treatment program. Following discharge he continued his therapy through one-on-one counseling and attendance at AA meetings. In imposing a three-year suspension the court found that his conduct was motivated not by dishonesty or selfishness, but by his substance abuse problem; and that he was remorseful. He was placed under the jurisdiction of the Lawyer Assistance Program. Prior to reinstatement he would have to obtain certification from LAP that he exhibits no symptom of any condition that would make him a danger to the public or his clients. Office of Disciplinary Counsel v. Cushion, 749 N.E.2d 224 ( Ohio 2001) Respondent was convicted of felonious assault with a firearm, carrying a concealed weapon, discharging a firearm while under the influence of alcohol and drugs, and two counts of driving under the influence. These charges resulted from an incident in which, while under the influence of both alcohol and drugs, which he claims to have taken because of his despondency, respondent shot a female companion. He claims that the pistol inadvertently discharged. The court imposed an indefinite suspension finding as mitigating factors that respondent has shown genuine remorse; that while in prison he engaged in public service, attended AA and NA meetings, and resolved not to use drugs or alcohol again. In re Wynne, 726 N.Y.S. 2d 111 (New York 2001) Conviction of series of alcohol related traffic offenses over 15-year period and failure to file record of three convictions of driving while intoxicated was conduct warranting public censure. The court considered respondent s alcohol dependence, present attendance at AA meetings and completion of an alcohol rehabilitation program. 5

9 In re Zamora, 21 P. 3d 30 (New Mexico 2001) On April 29, 1999 the Lawyers Assistance Committee of the State Bar of New Mexico conducted an intervention due to a concern that Zamora was abusing crack cocaine. As a result of the intervention respondent agreed to enter a recovery program. He voluntarily ceased the practice of law. While in the recovery program he self-reported to the office of disciplinary counsel that during the drug addiction he had misappropriated money from his attorney trust account. An audit of his trust account was conducted at his own expense and he provided the results and underlying records to disciplinary counsel. Following his self-reporting but prior to the time charges were brought against him, respondent had obtained a bank loan and voluntarily made full restitution to all clients whose money he had taken. Before his release from the residential recovery program, respondent entered into a written monitoring agreement developed as a joint project of the Lawyers Assistance Program and the disciplinary board and designed to establish a formal recovery program for a lawyer suffering from the disease of addiction. The hearing committee recommended an indefinite suspension with a minimum of three years with all except the first year suspended. The courts did not accept this recommendation but did take into account the mitigating factors and permitted respondent to file a motion for permission to apply for reinstatement after a period of two rather than three years. In re Dolin, 721 N.Y.S. 2d 669 (New York 2001) In 1994 Dolin pleaded guilty to the crime of attempted criminal possession of a forged instrument. She was sentenced to one-year probation. In mitigation of the discipline to be imposed respondent asked the court to consider her long-term battle with depression, which caused an addiction to prescription drugs as well as various medical problems. The court concluded that censure was the appropriate discipline. Bamberger v. Kentucky Bar Association, 36 S.W. 3d 758 (Kentucky 2001) Attorney s failure to keep client reasonably informed about the status of her divorce and to finalize that divorce warranted 30-day suspension, probated for one year with conditions. Movant admitted he has a problem with alcohol dependence and agreed to the terms of probation. Those terms include abstaining from alcohol, attendance at AA meetings and supervision by a member of the Lawyers Helping Lawyers Committee. Cuyahoga County Bar Association v. Kraus, 740 N.E. 2d 1092 ( Ohio 2001) Kraus was charged with neglect of several matters that he had been paid fees to complete in 1995 and He presented mitigation evidence that in 1998 he had voluntarily entered an alcohol and drug treatment center. He stayed for nine months. He has been sober since December 1998, regularly attends AA meetings and does 12 Step 6

10 work. The court accepted the discipline panel s recommendation of an 18-month suspension with the entire suspension stayed, during which time respondent would be on probation and maintain a monitoring contract with the Ohio Lawyers Assistance Program. In re Childers, 540 S.E. 2d 606 (Georgia 2001) Childers filed a petition for voluntary discipline. He was suspended for six months for neglect, resulting in dismissal of one client s action and summary judgment against another. He asserted in mitigation that at the time he was experiencing serious personal and emotional problems and was hospitalized for severe clinical depression aggravated by the use of prescribed pain medication and alcohol. The court took the mitigating factors into consideration in imposing the suspension. In re Jensen, 712 N.Y.S. 2d 233 ( New York 2001) In July 1997 respondent was convicted of criminal impersonation arising from using an alias at a hospital emergency room to obtain a prescription for a pain reliever. He became addicted to prescription drugs because of difficult health and life circumstances and turned to using aliases to support his addiction. The conviction was a class A misdemeanor. He was sentenced to three years probation. He did not report the conviction to the court as required. His suspension was continued indefinitely but stayed on certain conditions including quarterly reports from his treating psychiatrist assessing his continuing capacity to practice law, and submitting an application to the New York Bar Association s Lawyers Assistance Program. In re Stemke, 539 S.E. 2d 698 (South Carolina 2001) Court accepted voluntary agreement for discipline which called for a three month suspension. Respondent was arrested for shoplifting and receiving stolen goods. He was also charged with two counts of forgery and two counts of unlawful use of a driver s license. At the time of the disciplinary hearing Stemke was undergoing outpatient treatment for depression and drug dependency. Office of Disciplinary Counsel v. Griffith, 737 N.E. 2d 1284 ( Ohio 2001 ) Griffith deposited a check received as settlement of a client s personal injury claim into his personal checking account. He paid his own expenses out of the account. In mitigation respondent presented testimony about his relapse into alcoholism. Prior to the disciplinary hearing he checked himself into an alcohol treatment facility and reestablished his participation in AA. 7

11 The court accepted the panel s recommendation that respondent be suspended for two years with eighteen months stayed on the condition of respondent s participation with the Ohio Lawyers Assistance Program. Kentucky Bar Association v. Hickey, 31 S.W. 3d 434 ( Kentucky 2001) In 1999 Hickey pled guilty to one felony count of income tax evasion. The recommended discipline was a suspension of four years, two years conditionally discharged upon monitoring by Lawyers Helping Lawyers. At the hearing level mitigating factors included his admission of alcohol and drug dependency as well as family problems; that he had been in treatment since Office of Disciplinary Counsel v. Gettys, 737 N.E. 2d 29 ( Ohio ) In 1996 respondent was found guilty of felony possession of a controlled substance and the misdemeanor of operating a motor vehicle while under the influence. Mitigation evidence established that in 1996 Gettys received thirty days of in-patient drug and alcohol treatment and that he was no longer drinking or motivated to drink. The court accepted the discipline panel s recommendation of a two-year suspension with the second year stayed, and probation. The court also accepted the panel s recommendations for random testing for alcohol and drug use; that he attend three AA meetings per week; that he make quarterly visits to a psychologist; and, that he be monitored. 8

12 IV. Mitigation Based on Mental Illness In re Roxborough, 2001 WL ( District of Columbia 2001) This was a petition for reinstatement. Roxborough had been suspended from the practice of law for multiple acts of misconduct from 1991 through In 1985 he saw a psychiatrist who diagnosed depression. He did not comply with the treatment recommended by the psychiatrist. In 1995 at Bar Counsel s request Roxborough met with a psychologist who diagnosed a moderately severe mental disorder, i.e. a narcissistic individual with an inflated sense of self-worth. In 1995 he experienced a depressive disorder. He exhibited signs of manic mood swings. In 1996 he began psychotherapy, which he received weekly for two and one half years until his health insurance ran out. His physician placed him on an antidepressant (Wellbutrin), and antianxiety medication (Buspar). By June 1998, petitioner exhibited no signs of depression and as a result of his psychotherapy improved his recognition and acceptance of responsibility. Amongst other considerations for reinstatement the D.C. Board on Professional Responsibility had to consider whether petitioner s mental health was sufficiently recovered to permit him to practice law. The panel found that he had the present capacity to practice law. The court accepted the recommendation of reinstatement with several conditions, including that Roxborough continue consultation with the Lawyers Counseling Committee for at least three years after reinstatement, and report to bar Counsel concerning those consultations every six months. Cuyahoga County Bar Association v. Belkin, 748 N.E. 2d 21 (Ohio 2001) Respondent admitted neglect of client s breach of contract and employment discrimination matters, failing to carry out contract of employment, and failing to promptly return retainer as promised. The hearing panel noted in mitigation that Belkin had suffered from depression for many years. The court accepted the panel s recommendation of an eighteen-month suspension, with all eighteen months stayed. In re Jellinger, 625 N.W. 2d 143 (Minnesota 2001) Respondent charged failure to cooperate in the disciplinary investigations of overdrafts to his trust account, misuse of his trust account and neglect of a client matter. Jellinger did not answer the original complaint(s) and the allegations were deemed admitted. He did appear on his own behalf at the oral argument held for the purpose on imposing the discipline. At the hearing respondent expressed remorse and took responsibility for the misuse of the trust account and neglect of a client file. He asked for the opportunity to rehabilitate himself and asserted that he was being treated for depression. The court 9

13 publicly reprimanded him and placed him on probation for two years. A condition of the probation was that he seek medical treatment from a mental health professional and abide by the course of treatment recommended. In re Silver, 545 S.E. 2d 886 (Georgia 2001) Silver pled guilty to a misdemeanor charge of using paid runners for referral of clients in motor vehicle case(s). In the disciplinary proceedings the recommendation was that he be suspended for two years with conditions on reinstatement. Testimony was presented that in May 1999 Silver withdrew from the law firm and filed a claim for disability alleging that he was unable to perform any of the duties of his occupation because of severe depression. Evidence was presented that he had been treated for a combination of severe depression and panic disorder since 1995 and his condition has worsened to the point of being disabled to practice law. The court accepted the recommended discipline, and further ordered that prior to reinstatement he obtain a determination from the State bar Committee on Lawyer Impairment that he is competent to resume the practice of law. In re Lopes, 770 A. 2d 561 (District of Columbia 2001) It was found by a Hearing Committee that Lopes committed ethical violations primarily involving neglect and dishonesty. The Committee also found that he had satisfied the requirements for mitigation of sanction. It relied on evidence that Lopes suffered from a combination of serious health problems including sarcoidosis, multiple sclerosis, depression and severe side effects of prescription medication. In the Committee s view all of his conduct, including forgery and other dishonest acts were causally related to these disabling conditions. The court did not accept the conclusion that there was a causal link between side effects of medication and his dishonesty. The court stated: 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. However, the court did conclude that Lopes was qualified for a reduced disciplinary sanction. It accepted the Committee s finding of clear and convincing evidence of rehabilitation as well as respondent s awareness of his illness and the connection between his medical problems and his ability to perform professionally. In re Cohen, 8 P. 3d 953 (Oregon 2001) Attorney s neglect in divorce case warranted public reprimand. Evidence presented a history of personal problems and depression that he had suffered in early 1994 through 1995 and the active steps that he had taken, beginning in mid-1996, to improve his mental health and office practices. The court concluded that Cohen was aggressively and successfully addressing his mental health problems and had contributed to the integrity of the disciplinary process. 10

14 State of Oklahoma ex. Rel. Oklahoma Bar Association v. Abbott, 11 P. 3d 1239 (Oklahoma 2001) The court accepted joint stipulation of fact and agreed recommendation as to discipline. Abbott had commingled personal and trust account funds and failed to respond to Bar Association query. Public censure was appropriate discipline where no client funds were involved, no client was harmed and attorney, who suffered from depression at times in question, had acknowledged wrongdoing and shown remorse. V. No Mitigation Based on Mental Illness In re Rudman, 2001WL (Louisiana 2001) The court imposed a one year and one day suspension and did not treat the respondent s alleged depression as a mitigating factor, in the absence of any supporting evidence. Respondent charged with misconduct in neglecting a debt collection matter for a client, failing to communicate with the client, misplacing her file, and failing to cooperate in the investigation. In a stipulation of facts submitted with the petition for consent discipline, respondent set forth several mitigating factors. He stated that he had undergone treatment twice in the past year for cancer and that since 1996 and until recently, he was suffering from untreated clinical depression. The board found no mitigating factors were present. In particular, the board refused to give any weight to respondent s assertion that his personal and emotional problems should be considered in mitigation, citing a lack of support in the records for such a finding and an absence of causation. In re MacLean, 774 A. 2d 888 (Rhode Island 2001) Court rejected recommendation of public censure and instead suspended respondent until further order of the Court. MacLean, when representing a landlord in an action to recover damages for tenant s destruction of property, failed to act with reasonable diligence, failed to keep the client reasonably informed, commingled monetary judgment with his business account, and failed to respond to four additional pending petitions for disciplinary action. At the disciplinary hearing MacLean testified in mitigation that he had recently been diagnosed as suffering from depression and a panic disorder that resulted in his inability to focus on his practice, to prioritize his activities, and to even open his mail. He reported that he had recently commenced treatment. The respondent then stipulated to a consent order, which required him to provide periodic reports to counsel. For a period of time he complied but was not able to follow through with his obligations under the consent order. The suspension followed as a result. 11

15 In re Meaden, 628 N.W. 2d 129 (Minnesota 2001) This was a case of reciprocal discipline originating from Meaden s suspension from practice in New Jersey. The Minnesota Supreme Court indefinitely suspended respondent. He was given permission to apply for reinstatement in three years. The respondent argued that the Disciplinary Review Board in New Jersey had not given sufficient consideration to his mental illness as a mitigating factor. The court rejected the argument and held that the question they must answer was whether the discipline imposed by the New Jersey Supreme Court is unjust or substantially different from discipline warranted in Minnesota. They concluded that it was not. In re Wiederholt, 24 P. 3d 1219 (Alaska 2001) Disbarred attorney petitioned for reinstatement. The attorney appeals from the Disciplinary Board recommendation that he not be reinstated. It had been recommended by the board that respondent seek counseling from a mental health professional. He had not done so. The court held that failing to take the board s recommendation and seek professional counseling was strong evidence of his disregard of the import of the board s suggestions, as well as his failure to recognize the nature and extent of his wrongdoing. Attorney Grievance Commission of Maryland v. Vanderlinde, 773 A. 2d 463 (Maryland 2001) Misappropriation of money from her employer over a period of time warranted respondent s disbarment. Her defense went exclusively to mitigating factors. She asserted that the pressures of her life and the impairment of her mental faculties, including her periods of depression, mitigated against severe sanctions for the offenses she admitted committing. Both respondent and the discipline counsel presented testimony from mental health professionals. Both indicated that respondent, at a minimum, had a personality disorder and was mildly to moderately depressed. The court, while somewhat sympathetic to respondent s situation, did not accept that her misconduct could be primarily related to any disorder. It concluded that in cases of intentional dishonesty, misappropriation cases, fraud, stealing etc. it would not accept as compelling extenuating circumstances, anything less than the most serious and utterly debilitating mental or physical health conditions. In re Weisband, 25 P. 3d 24 (Colorado 2001) After a sanctions hearing was held in attorney regulation case, the respondent moved to vacate default on grounds of excusable neglect. The court held that respondent failed to establish that at the time he defaulted he was under emotional and mental impairment significant enough to excuse his failure to answer the complaint. 12

16 Kentucky Bar Association v. Wong, 44 S.W. 3d 779 (Kentucky 2001) Wong was charged with failing to proceed diligently as counsel for her clients in will contest and in failing to advise clients of the status of litigation, a settlement offer, and the dismissal of the case for failure to prosecute. The court accepted the recommendation of a 181 day suspension. The court noted for the record that Wong s defenses included that she suffered from medical and familial problems that caused stress and depression. The trial commissioner did not accept these in mitigation and the court agreed. In re Campbell, 21 P. 3d 1147 (Washington 2001) Attorney who had been placed on disability inactive status based on finding of mental incompetence petitioned for reinstatement. The disciplinary board denied reinstatement and the court affirmed. The court held that the disabled attorney has the burden of showing that the disability has been removed. Iowa Supreme Court Board of Professional Ethics and Conduct v. Adams, 623 N.W. 2d 815 (Iowa 2001) Failure to complete work undertaken for clients, failure to deposit advances for court costs and retainers into trust account, and failure to return client s files as requested, warranted three-month suspension. The court held that depression and alcoholic conditions do not excuse unethical conduct. The court noted that Adams has suffered from depression for fifteen to twenty years, with the depression being worse in the last three to four years. Although he had sought treatment in the past, he did not think it had been helpful or successful. In re Neal, 20 P. 3d 121 (New Mexico 2001) Neal was charged with failure to properly pursue his client s appeal from a conviction for first-degree murder and related misconduct. Respondent alleged in mitigation that he had been diagnosed with depression eight years previously. He stated he had not remained faithful to the treatment because he did not understand that he needed to remain on medication. Shortly before the disciplinary charges were filed, he had resumed treatment. The court held that respondent s depression couldn t be considered a mitigating factor because he failed to demonstrate a prolonged period of rehabilitation, which is the standard for considering a mental health condition as a mitigating factor. In re Hull, 767 A. 2d 197 (Delaware 2001) Hull was charged with neglect of client matters as well as failure to communicate. Office of Disciplinary Counsel sought review of the report issued by 13

17 Board on Professional Responsibility, recommending that Hull be suspended for one year with the option of being reinstated after six months. The Supreme Court held that twoyear suspension was a more appropriate sanction. Hull submitted uncontradicted psychiatric testimony that she suffered from bipolar disorder and from obsessive-compulsive disorder. The psychiatrist concluded that Hull s disciplinary violations were caused by her psychiatric condition and that she would be able to control her depression after an extended period of aggressive treatment that would last no longer than six months. The Board determined that Hull s illness was not a mitigating factor because she did not have along enough period of recovery and had not demonstrated that the recovery arrested the misconduct and recurrence of that misconduct was unlikely. 14

18 VI. Sexual Behavior as Grounds for Discipline Attorney Grievance Commission of Maryland v. Childress, 770 A. 2d 685 (Maryland 2001) Attorney was charged with conduct prejudicial to administration of justice by using the Internet to solicit sex with young teenage girls. The discipline imposed was indefinite suspension. Childress s psychiatrist testified in the criminal proceedings as well as the disciplinary proceedings. She stated that Childress has suffered from major depressive episodes and, since age eleven, continually suffered from obsessive-compulsive disorder. She reported that Childress had made progress and was complying with a program to prevent future misconduct. In imposing the suspension without the right to apply for termination of the suspension for one year the court also ordered that any application for termination of the suspension address Childress s then current psychiatric evaluation and describe any psychiatric treatment received. 15

19 VII. Gambling In re Petilla, 2001WL (California 2001) Discipline arising from charges that respondent incurred credit card debts without intending to repay them. The debts were incurred almost exclusively by obtaining cash advance with which to gamble. The court reversed hearing judge s recommendation that respondent be ordered to attend Gamblers Anonymous meetings at least two times a week. The respondent testified that he had not gambled since 1994 and the State Bar did not impeach that testimony or proffer any expert testimony that respondent suffers from compulsive gambling. In re Lallo, 768 A2d 921 (Rhode Island 2001) Respondent was an associate administrative judge. He was alleged to have been absent during the judicial day while engaging in conduct demeaning to his judicial office, i.e. gambling at a public casino. He appealed from a recommendation of the Commission on Judicial tenure and Discipline that he reimburse $28,000, which represented his entire salary on days on which he left the workplace to gamble. In addition to his admitted gambling addiction respondent suffered from serious financial reverses that gave rise to his financial difficulties. The recommendation was modified and he was not requires to reimburse state for entire day on 28 days when he missed only a portion of the day. In re Kouros, 735 N.E. 2d 202 (Indiana 2001) Attorney s temporary use of client s funds held in trust, without client s knowledge or consent, warranted suspension for at least 12 months. As mitigation evidence was presented that respondent suffered from a gambling addiction during the time of the trust fund mismanagement. He used client funds to cover gambling debts. Respondent acknowledged his addiction, was receiving counseling for it, and was participating in Gamblers Anonymous. 16

20 VIII. Criminal Conviction for Drug Offense In re Lock, 2001 WL (Texas 2001) Lock appealed Board of Disciplinary Appeals determination that she was subject to compulsory discipline for being placed on probation, without an adjudication of guilt, for possession of a controlled substance. The issue is whether a felony conviction for possession of cocaine is a crime or moral turpitude. The court concluded that it is not per se. Attorney Grievance Commission of Maryland v. Black, 766 A. 2d 119 (Maryland 2001) An indefinite suspension imposed for a conviction for possession of cocaine. Respondent received a one year suspended sentence conditioned on two years unsupervised probation. Respondent presented mitigation evidence Following his conviction and before his sentence for another criminal episode respondent voluntarily entered a six month intensive outpatient treatment program. He was active in his recovery efforts but had a relapse in May Based on the relapse, his failure to seek assistance from the Bar Association s Lawyer Counseling Program or enroll in another treatment program it was recommended that he be indefinitely suspended. The hearing judge also recommended that his reinstatement be conditioned upon compliance with certain conditions: successful completion of an inpatient addiction program; submission to care and treatment of physicians as required for addiction and/or psychiatric disorder; cooperation with the Bar Association s Director of Lawyer Counseling. The respondent agrees with the recommendations acknowledging his need for assistance and rehabilitation. 17