Sanctioning Recovering Addicts For Ethics Violations

The Kansas Supreme Court decided a disciplinary case last week that addresses an important and sometimes controversial aspect of professional regulation. The attorney had been a cocaine addict since 1981. He was able to control his drug use during a period of time when employed in a job that involved random drug testing. After leaving, he had periods of controlled and uncontrolled abuse of crack cocaine. For one year, he sat in his basement smoking crack. He also had been in treatment but had relapsed.

As one might imagine, he had a series of unhappy neglected clients. The bar prosecuted a case that found misconduct in a significant number of cases. The attorney has now been on a path of recovery since 2005.

What is the proper sanction? In light of the recovery, should the court order probation with conditions rather than suspension or disbarment?

Here, the court was not prepared to simply order probation in lieu of indefinite suspension with the prospect of reinstatement on a showing of continuing recovery and a solid plan for close supervision. The court considered the ABA Standards for disciplinary sanctions in reaching its result.

In its seminal case In re Kersey, 520 A.2d 312 (D.C. 1987), the D. C. Court of Appeals allowed immediate probation without suspension for an alcoholic attorney who had engaged in more serious misconduct including three instances of misappropriation. The attorney was farther along in his recovery than in the Kansas case and had a detailed probation supervision plan. The Board had recommended a one year suspension with probation to follow assuming continued recovery. The D.C.court has also declined to treat cocaine addiction as a mitigating factor in attorney discipline cases. (Mike Frisch)