Opioid Use No Mitigation In Theft Of Client Funds
The Washington State Supreme Court has imposed disbarment for an attorney’s misappropriation of entrusted funds.
The attorney had received over $117,000 for the client but did not so advise him
Fossedal never disbursed any of [client] Schoofs funds to him. Instead, she used Schoof s funds “for her own benefit, directly or indirectly, without authorization to do so.” Id. She used his funds for daily business and personal expenses such as payroll, office supplies, rent, symphony and Mariners tickets, groceries, pet food, restaurants, and manicures. Fossedal never sent Schoof any billing statements or accountings before removing his funds from trust.
Her associate raised concerns about general operations
In March 2011, Fossedal’ s firm was fifteen months delinquent on billing. Hayes, her associate, sent Fossedal a letter expressing her concerns about the firm’s financial management and her ethical obligations to its clients…
The attorney’s unsatisfactory response led the associate to leave and notify Schoof
In April 2010, Schoof learned from Hayes that his settlement proceeds had been transferred to Fossedal. He made several attempts to contact Fossedal and recover the funds.
Schoof called Fossedal’s office on a monthly basis, seeking disbursement. He was never able to speak with Fossedal, and she never returned his calls. Fossedal either failed to respond to his e-mails or, when she did, failed to provide substantive information or stated that she was sick and “needed time to get back to him with regard to the funds.”
A bar grievance followed as well as a theft conviction and a civil suit. The attorney was relatively judgment proof
In August 2015, the WSBA’ s Lawyers’ Fund for Client Protection (LFCP) made a $117,225.17 gift to Schoof.
Gift?
The bar hearing
During a three-day disciplinary hearing, Fossedal, her doctors, her family, and her friends described Fossedal’s personal and health problems during the time period when she stole Schoof s funds.
Fossedal explained that she was in car accidents in 2003, 2004, and 2006. She suffered neck injuries and experienced chronic pain from 2006 onward. She tried a variety of pain management techniques including massage, ablation, physical therapy, and medications.
In 2006, under the care of her primary care physician, Dr. Dane Travis, Fossedal was prescribed a variety of opioid pain medications, including Opana, Fentanyl, Vicodin, Gabapentin, and benzodiazepine. She started taking these medications in increased amounts. While Dr. Travis was not concerned that Fossedal was abusing drugs, he did testify that “[t]here’s, you know, clearly an inappropriate lack of control and misuse potential, but I didn’t see it as drug-seeking behavior as in I’d like to get –enjoy this more, ever, with Dana.” 3 VRP (Mar. 9, 2016) at 467.
Fossedal’ s family and friends recounted that by 2009, Fossedal’ s personality changed significantly. She was lethargic, slept a lot, and was inactive even when awake. She would pass out midsentence and was unable to complete simple tasks. On the few occasions when Fossedal would leave home for a court appearance, she would need to start sleeping a couple days in advance in order to complete the hearing.
The hearing officer proposed a three-year suspension. The WSBA Disciplinary Board asked for disbarment.
The court on the attorney’s opioid use
Here, the hearing officer found that two factors, standing either alone or in combination with one another, constituted extraordinary mitigation: (1) physical disability due to Fossedal’s “significant pain” and (2) Fossedal’s opioid dependence. FF/CL at 12-13. As we explain below, the Board properly rejected both of these conclusions. Neither of these factors-either standing alone or in combination justifies a departure from the presumptive sanction of disbarment.
Pain
We do not wish to minimize the debilitating and disabling impact that chronic pain has on many individuals’ lives. Nevertheless, such pain does not excuse extreme lapses of an attorney’s moral judgment. We agree with the Board’s decision that here, significant pain is insufficient to serve as an “extraordinary” mitigator-even when combined with other mitigating factors.
A policy judgment not universally followed throughout the country
But even if Fossedal did prove that her drug dependence caused her to steal client funds, it would not be enough to justify a departure from the presumptive sanction of disbarment. We have repeatedly declined to find that drug or alcohol dependence is an extraordinary mitigating factor in cases involving theft of client funds, even if an attorney did not clearly recall actually taking the funds…
While at times Fossedal may indeed have been in an “opioid haze,” the record indicates that to some degree, she was culpable and responsible for her actions. At some point, she “chose the path” that led to her misconduct. Id. at 772. We voiced similar reasoning in Johnson, where we disbarred an attorney suffering from alcoholism who stole client funds.
Thus
The purpose of attorney discipline is to protect the public and preserve confidence in the legal system. Rentel, 107 Wn.2d at 282. Here, the Board unanimously voted to recommend disbarment, which is a proportionate sanction that serves both of these goals. Fossedal took all of Schoof s settlement funds. She possessed these funds only because of the position of trust she occupied as Schoof s lawyer. Meanwhile, Schoof was financially destitute, sleeping on a friend’s couch. And although F ossedal has expressed remorse, she has done nothing to repay any of the money she misappropriated. In light of this court’s “strong policy against client fund violations,” disbarment is the only acceptable sanction here. Rentel, 107 Wn.2d at 289. Any other sanction would send an untenable message to the public that opioid use may excuse stealing client funds.
(Mike Frisch)