Sleep Apnea As Mitigation
The New Hampshire Supreme Court rejected an attorney’s claim that sleep apnea had rendered his misconduct unintentional but considered subsequent treatment in imposing sanction
The most serious injuries were to the respondent’s client. The respondent stated that he believed the client should have prevailed on the merits of the fraudulent conveyance action. However, because of his neglect, a default judgment was entered against the client, and the client was forced to surrender her stock certificates in one of her businesses. Although the Mesmer law firm eventually repaid the client for the value of that ownership interest, the client may have wished to retain that interest, rather than involuntarily and precipitously liquidate it. Also significant is the immense stress the client suffered due to the litigation, which was greatly exacerbated by the respondent’s repeated misrepresentations. The injuries to the public and the legal profession were also serious, because, as we have observed, public confidence in the legal profession is significantly harmed whenever a lawyer is dishonest. See Grew’s Case, 156 N.H. at 365-66; Bosse’s Case, 155 N.H. at 132. The respondent also caused injury to the profession when he baselessly accused DeCarolis and the court of impropriety. It is not surprising that the client testified that her trust in lawyers diminished due to her experience.
While there were mitigating factors
The respondent argues that the hearing panel erroneously found the respondent’s sleep apnea to be mild, rather than severe, and that, by adopting this finding, the PCC did not give adequate weight to the respondent’s sleep apnea as a mitigating factor. We disagree. The hearing panel carefully considered the extensive medical evidence in the record, including the results of two sleep studies conducted on the respondent. The panel noted that the respondent’s expert witness opined that those studies suggested that the respondent was suffering from mild sleep apnea during his representation of the client. The hearing panel found that the respondent was likely suffering from sleep apnea during the representation, and that this condition “may have adversely affected some of Mr. Mesmer’s functioning.” The PCC considered these findings, and determined that, although the respondent’s sleep apnea is mitigating as a personal problem, his sleep apnea did not rise to the level of a disability.
Here, we agree with the PCC that the respondent’s sleep apnea is a personal problem, rather than a disability, because sleep apnea did not cause the respondent’s most serious misconduct: his dishonesty to his client and the court…
We note that, although the respondent’s sleep apnea does not qualify as a disability, his medical history and subsequent treatment are material factors in our analysis. Shortly after the events at issue in this matter, the respondent voluntarily ceased the practice of law, and sought treatment for his health problems. Beginning in 2012, the respondent went to dozens of medical appointments for problems including fatigue, swelling, and abdominal pain. Although he was diagnosed with a number of conditions, the respondent’s health did not markedly improve until after he was diagnosed with sleep apnea in 2017. Following this diagnosis, the respondent began sleeping with a CPAP (Continuous Positive Airway Pressure) machine, and has been healthier with less fatigue. After a period of approximately 15 months not practicing law, in March 2018, the respondent returned to practice handling a full caseload, apparently without additional instances of misconduct. Thus, we take into account the respondent’s struggles with his health during the events at issue in this matter, as well as his representations that he has since addressed his health problems, and is once again capable of handling the serious responsibilities associated with the practice of law.
Thus
We agree with the PCC that the mitigating factors here warrant a downward departure from the baseline sanction of disbarment. The sanction of a three-year suspension, with 18 months stayed, is consistent with our prior cases in which attorneys with no prior disciplinary history have been suspended for misconduct involving dishonesty.
(Mike Frisch)