Bipolar Condition Causes Misappropriation, Disbarment Not Imposed

In an important decision involving the sanction for misappropriation caused by bipolar disorder that is presently controlled by medication, a 4-3 decision of the Missouri Supreme Court held that an indefinite suspension with right to apply after three years, rather than disbarment, was the appropriate disposition. The dissenters would disbar.

The attorney had been symptom free and practiced honorably from1981 to 1998. During a vacation in Europe, he began drinking and fell into a spiral that last until 2003. The thefts occurred during that period of time. Over the four year period, the attorney kept clear records of the amounts he had taken. He thereafter voluntarily repaid the funds and self-reported the misconduct. Since 2003, he is again in treatment and apparently restored to his pre-lapse condition. He had sought a fully stayed on conditions involving monitoring of his condition.

The court majority concluded:

Even though this case is unique in the quantity and type ofmitigation present, this Court must reject Mr. Belz’s argument that astayed suspension with probation is proper. As this Court and manyothers have recognized, misappropriation of client funds presents aparamount risk to the integrity of the legal profession. Our professionrelies intrinsically on the trust that clients are willing to place intheir lawyers, and few acts of misconduct have the capacity to erodethat trust more quickly and thoroughly than the conversion of aclient’s funds to one’s own use. Even when such conduct is recordedproperly and undertaken in a manic state, as it was here, this Courtcondemns this conduct in the strongest possible terms. Mr. Belz actedwith a dishonest and selfish motive in taking his clients’ funds, hedid so multiple times, and he had substantial experience with the law.A stayed suspension is simply not appropriate for this type ofmisconduct.

In this case, an unusual array of compelling mitigatingfactors has collided with extreme and gross misconduct unbecoming of amember of the bar. Under the unique facts of this case, this Courtconcludes that the appropriate sanction is to suspend Mr. Belz from thepractice of law indefinitely without leave to apply for reinstatementfor three years. In addition to the conditions for reinstatement setforth in Rule 5.28, Mr. Belz must establish that he has continued toreceive effective treatment for his bipolar disorder through theduration of his suspension and, as a part of any application forreinstatement, that he will continue such treatment into the future.

The dissent in full:

“Hard cases make bad law” is a familiar adage that seems tofit this case. The adage appears in a dissent by Justice Oliver WendellHolmes, Jr. “Great cases, like hard cases, make bad law,” Holmes said.”For great cases are called great, not by reason of their realimportance in shaping the law of the future, but because of someaccident of immediate overwhelming interest which appeals to thefeelings and distorts the judgment. These immediate interests exercisea kind of hydraulic pressure which makes what previously was clear seemdoubtful, and before which even well settled principles of law willbend.”(FN1)

I have long believed that disbarment is the penalty forstealing from clients. But this is a hard case because the respondentMr. Belz, as the principal opinion ably notes, appears to have had along and otherwise honorable career as lawyer and as a church and civicleader, as well as to have overcome, for the most part, a mentalillness that he has endured through much of his life.

Moreover, when it comes to assessing punishments, I havelearned over time that hard-and-fast rules often produce injustice andsocial dysfunction. Nevertheless, stealing is stealing. If there arecertain immutable rules, then surely this is one: Lawyers may not stealfrom their clients. Not even borrowing without permission with theintention of repaying – it is still stealing. A license to practice lawis not a license to steal. We should not give cynics, who may believeotherwise, any support for their wrong-headed view – regardless ofmitigating circumstances. There are in fact no mitigatingcircumstances: no medical or psychiatric excuse mitigates thisbehavior. Lawyers must be held to this standard of honesty despitetheir individual circumstances.

Stealing from clients should result in disbarment.  This is a well-settled principle that we should not bend.  I respectfully dissent.

Reinstatement will be conditioned on proof of ongoing treatment compliance and symptom-free behavior. (Mike Frisch)