Gambling, Not Mental Issues, Caused Misappropriation

The Massachusetts Supreme Judicial Court rejected the contention that an indefinite suspension was unduly harsh in a disciplinary matter involving misappropriation of client funds. The claim of mitigating evidence did not justify a lesser sanction:

While there may be circumstances where medical,psychological, or other mitigating factors will warrant a reductionfrom the presumptive sanction, this is not such a case. The recordsupports the special hearing officer’s findings, adopted by the board, that therespondent’s long-standing financial problems, exacerbated by gamblinglarge sums of money over a substantial period of time, rather than amedical or psychological disability, caused the misappropriation ofclient funds. See Matter of Johnson,444 Mass. 1002, 1004 (2005) (while personal and financial difficultiessurely caused respondent anguish, professional difficulties andfinancial reversals began years before misconduct and could not “excuseor explain abdication of professional responsibilities”). Inparticular, the special hearing officer declined to credit testimonythat the respondent suffered from a “fugue” or dissociative stateduring the period of misappropriation. This is consistent with thespecial hearing officer’s finding, among other things, that therespondent was “less than candid with her therapist concerning herserial and systematic misuse of clients’ funds for personal uses,” andthat her professional activities during that period belied a ” ‘fugue’state.” The special hearing officer’s observation is well taken that”methodical and systematic” misuse of funds for personal purposes isinconsistent with any conclusion that the respondent was operatingunder a cognitive disability.

The case is`Matter of Johnson, decided today. (Mike Frisch)