From Fargo To Devil’s Lake

The North Dakota Supreme Court continued the reinstatement of an attorney

Varriano was admitted as an attorney in North Dakota on January 5, 1988. In In re Varriano, 2010 ND 12, ¶ 8, 777 N.W.2d 852, this Court reciprocally suspended Varriano from the practice of law for one year based on ethics violations in Minnesota involving conflicts of interest and misuse of a client trust account. See In re Varriano, 755 N.W.2d 282 (Minn. 2008). Varriano attributed the Minnesota ethics violations on his alcoholism. In 2015 Varriano petitioned for reinstatement. In Varriano v. Disciplinary Bd., 2015 ND 288, ¶¶ 3, 11-12, 872 N.W.2d 338, we noted Varriano had been sober since March 19, 2011, after he had been arrested for driving under the influence of alcohol, and adopted the hearing panel’s recommendation that he be conditionally reinstated to the practice of law. Varriano’s reinstatement was subject to the [specified] conditions

The conditions included sobriety but

On December 30, 2016, Varriano and a friend consumed alcohol on a trip from Fargo to Devils Lake, where Varriano intended to contact jailed clients the following day. Police were called to a Devils Lake restaurant between 2 p.m. and 3 p.m. to check on a male, Varriano, who “was passed out at a table.” Varriano smelled of alcohol, “had slurred speech and red watery eyes,” and believed he was still in Fargo. His confrontation with officers eventually resulted in Varriano’s arrest and a disorderly conduct charge, but the criminal charge was subsequently dismissed. Varriano was then terminated from the Lawyer Assistance Program for violating the terms of his individual assistance plan.

The court

To be reinstated following a suspension of more than six months, an attorney must provide proof of rehabilitation in a reinstatement proceeding, and if the attorney is qualified to again practice law, this Court may impose conditions on reinstatement to ensure that the public will be protected upon the attorney’s return to practice.

…There is clear and convincing evidence that Varriano violated conditions 5 and 6 of his reinstatement. Varriano admitted to consuming alcohol on December 30, 2016, and he was terminated shortly thereafter from the Lawyer Assistance Program for violating the terms of his individual assistance plan. Varriano argues there is not clear and convincing evidence that he poses potential harm to the public if he continues to practice law.

But one lapse

We reject disciplinary counsel’s argument that a violation of a condition of reinstatement imposed to protect the public in itself establishes by clear and convincing evidence that an attorney poses a potential for harm to the public. In this case, Varriano had one relapse in his sobriety during the past two years of practicing law, which resulted in his termination from the Lawyer Assistance Program. On this record, before that relapse he had been sober since March 19, 2011. Varriano has complied with all of the other conditions of his reinstatement. Varriano’s relapse did not harm his clients, and during the last two years, there have been no complaints by clients or his supervising attorney about his work or professional conduct.

 The primary purpose of the disciplinary process is not to penalize the attorney, but to protect the public and the integrity of the profession. See, e.g., Disciplinary Bd. v. Korsmo, 2006 ND 148, ¶ 6, 718 N.W.2d 6. We recognize that Varriano expressed misgivings about the efficacy of Alcoholics Anonymous and the Lawyer Assistance Program, and candidly stated he would not report relapses in his sobriety. However, Varriano continues to attend Alcoholics Anonymous meetings weekly and has gone beyond the requirements of his reinstatement conditions by attending monthly sessions with a licensed addiction counselor which he believes are more helpful in treating his alcoholism. On our review of the record, we conclude there is not clear and convincing evidence that Varriano poses a potential for harm to the public.

The court imposed a number of conditions to the continued reinstatement. (Mike Frisch)