West Virginia Considers Impact Of Depression On Bar Sanctions

The West Virginia Supreme Court of Appeals agreed with the Office of Disciplinary Counsel that a 90-day suspension was unduly lenient in a matter where depression caused some but not all of an attorney’s misconduct.

Based upon a review of the record submitted, the briefs and argument of the ODC and Mr. Thorn, as well as the applicable legal precedent, this Court disagrees with the length of the suspension recommended by the  [Hearing Panel Subcommittee]. Instead, upon a review of both aggravating and mitigating factors, as well as the great harm caused to his clients, this Court finds that a ninety-day suspension from the practice of law is too lenient. This Court imposes a one year suspension of Mr. Thorn’s license and, further, adopts the remaining sanctions recommended by the HPS.

The court’s lengthy opinion cites numerous ethics violations

The HPS determined that Mr. Thorn exhibited a pattern and practice of misconduct on multiple occasions in terms of communication, lack of diligence, and failing to respond to the ODC. However, the HPS determined that it was an anomaly in Mr. Thorn’s seventeen years of practice which coincided with a mental disability which appears to be resolved.

The Court finds that the timeframe of the violations and complaints was, for the most part, discrete and related to the depression. However, the issues regarding the complaint of Mr. Benkiel occurred over a period of three years, a large portion of which was outside the claimed period of depression. Similarly, the complaint of Mr. Donovan concerned claims partially outside the period of time Mr. Thorn’s practice was affected by his depression. Additionally, with respect to the claims of Mr. Bethea, Mr. Thorn was appointed as counsel in 2004, long before the period of depression began. The gravity of the claims are such that this Court finds a pattern and practice that constitutes aggravating factors.

This Court also finds that the continued failure of Mr. Thorn to issue refunds to Ms. Miller and Mr. Donovan constitutes a pattern of conduct. Mr. Thorn has indicated that he agrees with the HPS and acknowledges that the refunds are due. However, no effort to provide the refunds has been made.

Likewise, the failure to provide itemized statements of accounts to Jessica Morris, Daniel Britton, Lisa Long, and Carly Wears constitutes a continuing pattern of conduct. Again, Mr. Thorn agrees that the itemizations need to be conducted, but he has failed to take any action to provide the itemizations.

Additionally, the depositing of funds in an operating account rather than an IOLTA account is evidence of a systemic pattern and practice that has not been linked to depression.

But there is mitigation

The unchallenged testimony of the psychology and counseling expert, Mr. Torsney, is instructive. Mr. Torsney opined that Mr. Thorn had, in the past, suffered significant deep depression, currently suffers from depression with fewer symptoms, and would benefit from counseling. He testified as to Mr. Thorn’s serious isolation, struggles with functioning, and suicidal thoughts. However, understanding the need to protect the public, Mr. Torsney also opined that he thinks Mr. Thorn is fit to practice law. He further stated that he does not foresee any potential harm to the public from Mr. Thorn maintaining his law license.

Mr. Torsney further testified that Mr. Thorn took full responsibility for neglect of some matters, indicating that the forum of the disciplinary process probably acted as a precipitator to moving Mr. Thorn in the direction away from self-harm to gaining assistance. Finally, Mr. Torsney testified that the was unable to state to a reasonable degree of certainty that the depression was not clinical as opposed to situational. He indicated that he would need to wait and see. Mr. Torsney noted that people with clinical depression sometimes have reoccurring depression, which he referred to as the “roller coaster effect.” That is why he believed that Mr. Thorn might benefit from periodic counseling, which would be in his best interest. Mr. Torsney advised Mr. Thorn that he was available to provide counseling and anticipated that Mr. Thorn would contact him.

Nonetheless

The Court observes, with a notable exception, that the complaints came in a cluster primarily arising from a timeframe corresponding with the demise of a marriage and resulting depression. Mr. Benkiel’s complaint presents a significant exception. The deficiency in his legal representation began prior to the onset of Mr. Thorn’s personal difficulties and depression. This is a critical factor because Mr. Thorn cannot connect the legal deficiencies with his representation, or lack thereof, of Mr. Benkiel to his depression.

Likewise, the complaints of Mr. Donovan and Mr. Bethea involved significant periods of time outside the period of depression.

While this Court is concerned that Mr. Thorn did not seek and receive help for his depression prior to the institution of disciplinary proceedings, the nature of a deep depression, according to Mr. Torsney, is that sometimes there is a need for a precipitator to move the individual to seek help. Although in oral argument Mr. Thorn represented that he has seen Mr. Torsney on several occasions, we are concerned that Mr. Thorn did not immediately submit to counseling with a licensed psychologist or psychiatrist as recommended by the HPS. It is also of concern, due to the testimony of Mr. Torsney, that there can be a roller-coaster effect with clinical depression that may be at issue here.

This Court also is troubled by the fact that Mr. Thorn did not present a plan for protecting his clients in the event he suffers from depression in the future. This is of concern especially given the expert testimony that Mr. Thorn is at risk for reoccurrences of depression and would benefit from counseling.

Based upon all of the evidence of Mr. Thorn’s depression, this Court concludes that the factors for considering a mental disability as mitigating are present. However, the Court determines that the facts dictate that the mitigating factor of mental disability must be given only great weight rather than the greatest weight in considering sanctions. See Lawyer Disciplinary Bd. v. Dues, 218 W. Va. at 112, 624 S.E.2d at 133. While depression was a substantial contributing cause of Mr. Thorn’s legal deficiencies with respect to the majority of the complaints, a direct link has not been made as to the complaints of Mr. Benkiel, Mr. Donovan, or Mr. Bethea. Moreover, there was no evidence of treatment resulting in a sustained period of rehabilitation.

…we find that the ninety-day suspension from the practice of law together with the other recommendations of the HPS is too lenient. An adequate suspension and other sanctions must serve the interests of the clients, the public, and the administration of justice, and appropriately punish Mr. Thorn for his conduct in violation of the Rules. We believe that lawyers who suffer from depression, or any other mental disability, that impairs the ability to practice law must be encouraged to seek assistance during the time of disability. Otherwise, the interests of clients, the public, and the administration of justice are not protected.

The impact of mental health issues on bar discipline requires an appreciation of factors that can seem at odds – public protection v. providing incentives for treatment and recovery. The court here sheds some light on that highly-significant debate. (Mike Frisch)