Sleep Apnea Treatment Mitigates Sanction

An attorney’s sleep apnea is not a mitigating factor in a matter in which the attorney had allowed a default to be entered against a client and made misrepresentations to that client.

The New Hampshire Supreme Court ordered a three year suspension with 18 months stayed. 

However, his subsequent treatment and its positive consequences significantly impacted on the sanction

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.

Sanction

…we order the respondent suspended for three years, and we order him to pay all costs associated with the investigation and prosecution of this matter. See Sup. Ct. R. 37(19). We further order that 18 months of the suspension shall be stayed, provided that the respondent pays said expenses and engages in no further professional misconduct.

(Mike Frisch)