OxyContin Addiction And Bar Discipline

A trust account overdraft that led to an investigation which revealed the attorney’s OxyContin addiction requires a period of actual suspension despite treatment and recovery, according to an opinion of the Louisiana Supreme Court.

the ODC’s forensic auditor conducted an audit of respondent’s trust account for the period of August 1, 2015 through January 31, 2016. The audit revealed that respondent regularly paid non-client expenses and made cash withdrawals from his trust account; these non-client expenses and cash withdrawals totaled $33,219.33 during the audit period. The audit also revealed that, on January 31, 2016, the trust account balance to satisfy pending client expenditures should have been at least $16,345.62. Instead, the balance on that date was $3,235.61, resulting in a deficit of $13,110.01.

On March 17, 2016, respondent informed the ODC that he was addicted to OxyContin, explaining that “the cost of the medication coupled with its effects on me overwhelmed my finances and I eventually began to take money from my Trust account.” He also informed the ODC that he had contacted the Judges and Lawyers Assistance Program (“JLAP”) and was preparing to enter inpatient treatment. He further informed the ODC that “I have also gone through my files and paid all outstanding debts that had been previously withheld from client settlements.” This last statement was confirmed by the ODC’s audit of respondent’s trust account. Finally, during his October 26, 2016 sworn statement to the ODC, respondent admitted that he regularly used his trust account as a second operating account in 2015.

On July 7, 2016, respondent completed a ninety-day inpatient treatment program at Palmetto Addiction Recovery Center. Palmetto’s medical director diagnosed respondent with severe opioid use disorder, among other diagnoses. On July 12, 2016, respondent signed a five-year JLAP recovery agreement.

ODC had objected to a hearing committee’s proposed deferred suspension.

The Disciplinary Board

The board adopted the committee’s factual findings and additionally found that respondent ran for traffic court judge in 2011 and 2013 and lost both elections. Respondent testified that, after his 2013 loss, he felt he had failed in reaching a goal he had worked toward for many years, and “the bottom dropped out.” Respondent’s friend gave him OxyContin and told him it would make him feel better and make him able to function. However, within a couple of weeks, respondent realized he was addicted to the drug. The day before respondent wrote the trust account check that resulted in the overdraft in the account, his friend died of a heroin overdose. Respondent admitted that his addiction and the effects of the addiction overwhelmed his finances, and he eventually began taking money from his trust account. The board further found that the evidence shows respondent always promptly paid his clients the amount they were owed from settlement funds.

The court fractured on the period of actual suspension

The court  majority rejected a fully-stayed suspension here notwithstanding his treatment and recovery

this mitigating factor does not justify the fully deferred suspension recommended by the board. Respondent possessed and used controlled substances, and funded his habit by converting client funds from his trust account. Under these circumstances, we find an actual period of suspension is warranted.

Based on this reasoning, we will suspend respondent from the practice of law for one year and one day, with all but six months deferred, subject to two years of probation with the conditions set forth in the board’s report…

Justice Hughes

I reluctantly concur with the disposition of this matter. I would have preferred that the suspension be totally deferred as recommended by the Hearing Committee and the Disciplinary Board. Given the other conditions imposed on the respondent by the court it is unfair to deprive him of his livelihood and at the same time require him to pay for those conditions. I concur only to resolve this matter at the court in the belief that it is in respondent’s interest to put this matter behind him, and I am hopeful that he can do successfully and resume the practice of law uninterrupted in the future.

Justice Weimer would impose a lesser sanction

The respondent self-reported that he had a substance abuse problem with opoid pain medication. Although the respondent had earlier come under scrutiny by the Office of Disciplinary Counsel (ODC) for overdrawing his client trust account, from all that appears in the record, the respondent’s opioid abuse might not have come to light at that time but for his self-reporting.

Concurrent with his self-reporting, the respondent paid all debts attributable to his misuse of his client trust account and informed the ODC that he planned to enter an inpatient rehabilitation facility. The respondent made good on his plan and completed the rehabilitation program. After completing the rehabilitation program, the respondent entered into a recovery agreement with drug monitoring. In the three years since completing the rehabilitation program, there have been no reported incidents calling his recovery from opioid abuse into question. There were no ethical lapses before the respondent’s addiction, nor have there been any ethical lapses since his recovery three years ago…

Just as society is faced with increasing difficulties from this epidemic, attorney discipline matters such as this are increasingly challenging. Here, the respondent made a mistake in his personal life, turning to substance abuse when faced with an emotional challenge, which in turn involved the attorney disciplinary system when he misused his trust account. However, he recognized he had a problem, took action to rectify that problem, and restored all funds before any client was harmed. He also expressed sincere remorse, evidenced by his compliance with his drug monitoring and recovery plan. I believe a shorter actual suspension would serve our system of discipline, given the facts of this case.

Under the totality of circumstances, I would impose a suspension of one year and one day, deferring all but thirty days. The reason the respondent should serve a period of actual suspension is that, unlike the addiction to gambling in Miciotto, which is a lawful activity, the respondent’s addiction here began with abusing opioids not prescribed to him at a time he faced emotional challenges.

Justice Crichton would go North 

despite the significant mitigation evidence as noted by the majority (chemical dependence and recovery, compliance with his JLAP agreement, and restitution to his clients), in my view, the seriousness of respondent’s misconduct is worthy of a lengthier suspension. Specifically, respondent converted money in his client trust account and on multiple occasions committed a felony crime…

In my view, an actual suspension of one year and one day in this case is warranted, at the conclusion of which respondent may petition the court for readmission with evidence of his continuing rehabilitative work with JLAP, as well as his ongoing success in his addiction recovery.

Justice Clark joined the dissent. (Mike Frisch)