Recovery Evidence Ratchets Down Discipline

The Louisiana Supreme Court gave substantial weight to evidence of alcoholism treatment and recovery in imposing discipline on an attorney for multiple acts of neglect and a DWI

The testimony at the mitigation hearing revealed that in 2014, around the time of his DWI arrest, respondent contacted JLAP requesting assistance for “stress counseling.” Respondent attended counseling for several months thereafter. In April 2015, the ODC directed respondent to contact JLAP to obtain a substance abuse evaluation. On June 20, 2015, respondent was evaluated by Dr. James Smith, Ph.D., who determined that respondent met the criteria for alcohol use disorder (mild, in sustained remission) and major depressive disorder (single episode, mild). Dr. Smith recommended that respondent attend a JLAP-approved intensive outpatient treatment program for substance abuse (“IOP”) as well as mental health and couples counseling. However, respondent did not comply with Dr. Smith’s recommendations.

In August 2018, upon learning from respondent that he had not attended the IOP, JLAP recommended that he complete a one-day assessment at a JLAP-approved facility to obtain updated recommendations. Respondent completed the assessment at Palmetto Addiction Recovery Center on August 14, 2019. According to Palmetto, respondent met the criteria for alcohol use disorder (moderate in the past, mild at present) and depressive disorder with situational, endogenous, and substance-induced features. Palmetto recommended that respondent complete an IOP and sign and follow a five-year JLAP recovery agreement.

In accordance with the recommendations made by Palmetto, respondent began an IOP on October 29, 2019. He was successfully discharged from treatment on February 14, 2020. On February 19, 2020, respondent signed a five-year JLAP recovery agreement. At the time of the mitigation hearing in March 2021, respondent was in full compliance with the requirements of his recovery agreement.

The Hearing Committee had recommended a fully-stayed suspension; the Disciplinary Board found that the number of violations (including mishandling of entrusted funds) warranted an actual suspension.

The court

The record reveals that over the period from 2014 to 2019, respondent engaged in a pattern of neglectful behavior that caused harm to his clients and the disciplinary system. Such misconduct warrants significant discipline.

However, we recognize substantial mitigating factors are present. Specifically regarding the mitigating factor of chemical dependency, we agree that the evidence supports a finding that respondent is affected by a chemical dependency and that the chemical dependency caused the misconduct. Respondent was actively abusing alcohol during the period of time in which the misconduct occurred, although he failed to acknowledge the extent of the problem to the ODC and to the JLAP evaluators. The evidence also reflects that respondent has sought treatment and has demonstrated a meaningful period of recovery; he successfully completed an outpatient treatment program and has been sober for three years. Furthermore, respondent has been subject to a JLAP agreement since February 2020, and he is in full compliance with the requirements of that agreement. By all accounts, respondent’s recovery has made a recurrence of his misconduct unlikely.

Considering the totality of the circumstances, we conclude respondent’s misconduct warrants a suspension from the practice of law for eighteen months, with all but six months deferred. Following the completion of the active portion of his suspension, we will place respondent on unsupervised probation for a period of one year, with the condition that any misconduct during this period may be grounds for making the deferred portion of the suspension executory or imposing additional discipline as appropriate.

Justice Crain

Now, when being chemically dependent can mitigate his discipline, he confesses that chemical dependency has caused all his rule violations. I am not persuaded to which of his two realities is the truth, and there is no reliable medical evaluation in this record to sort that out. Even his current success in JLAP, which the majority finds is a mitigating factor, may be due to him not having a severe disorder at all, as he successfully argued before.

If Respondent has a substantial substance abuse problem, I hope he successfully treats it. But I need medical evidence to confirm what problem we are dealing with in order to impose the proper discipline, and before allowing him back into the active practice of law. I dissent and would impose a non-deferred suspension of one year and one day.

(Mike Frisch)