Mental Health Mitigation Not Accepted In Intentional Misappropriation

The Oregon Supreme Court has disbarred an attorney for intentional misappropriation.

Although this court has repeatedly imposed disbarment as the presumptive sanction for a lawyer who converts client funds, the trial panel determined that mitigating factors, in particular respondent’s mental disabilities, supported imposing a two-year suspension from the practice of law.

The story

Respondent was admitted to practice law in Maryland and Pennsylvania in 2000. She moved to Oregon and was admitted to the Oregon Bar in 2008. From 2011 to 2015, respondent was a solo practitioner, handling many matters for which she represented clients on a contingent-fee basis. Respondent was solely responsible for bookkeeping and managing her client trust account. In the spring of 2014, respondent found herself in financial trouble. In June, her landlord agreed to forbear collecting rent for six months and, in August 2014, respondent stopped regularly paying her employees their full wages. The disciplinary charges arise out of respondent’s mishandling of client funds between August 2014 and January 2015.

There were three victims, including this one

On the first day of [client] Godier’s trial against the nonsettling codefendant, January 12, 2015, respondent wrote a check to Godier on the trust account for $46,000, the remainder of the settlement funds due to Godier. At the time when respondent wrote that check, there was only about $1,300 in her trust account, and the $46,000 check to Godier was dishonored for insufficient funds. Respondent made false excuses to Godier and told him to redeposit the check. He did so, but the check was dishonored again on January 15. Godier by then had overdrawn his own checking account and was desperate for his settlement funds. Respondent’s husband mailed Godier $1,000 in cash, but respondent never paid Godier the $46,000 that she owed him from the settlement.

The mental health issue

In the middle of the Godier trial, on January 14, 2015, respondent was involved in a one-car accident and was diagnosed with a concussion. Several days later, respondent was admitted to the hospital complaining that she was “overwhelmed with life” and had been experiencing suicidal thoughts for the preceding two weeks. Health care professionals hospitalized respondent for four days out of concern that she presented a suicide risk and discharged respondent with a diagnosis of major depressive disorder. She attended an outpatient treatment program for impaired professionals through March 2015, during which she received a diagnosis of major depressive disorder as well as Post Traumatic Stress Disorder (PTSD). In May 2015, respondent was living in Maryland and began therapy with psychologist Dr. Kronfli, who also diagnosed major depressive disorder and PTSD.

Respondent told her various mental health providers that she had suffered from untreated PTSD since experiencing a traumatic event as a young adolescent. At the disciplinary hearing, respondent testified that she had also been very strongly affected by the terrorist attacks of September 11, 2001, because she had been a student in Washington, D.C. at that time and could see the smoke from the attack on the Pentagon. Respondent testified that she always struggled around the anniversary of the attacks and that, beginning around September 11, 2014, she suffered symptoms of her depression and PTSD that were triggered both by her memories of the terrorist attack and by her financial difficulties.

 The Bar’s expert challenged the diagnosis

This is not the profile that Warford would have expected to see in a person who had recently been suffering from a major depressive disorder.

The court found intentional conversion

Respondent does not dispute that she acted with the conscious objective to use her client’s money for her own purposes, i.e., that she acted intentionally, and the Bar has established by clear and convincing evidence that she acted intentionally.

And

We are not persuaded, however, that respondent proved that she would have refrained from intentionally misusing client funds absent mental disability.

The key evidence that led the court to reject causation

[Treating psychologist] Kronfli also appeared to equate the level of disability that could produce a lack of adequate coping mechanisms with the level of disability that would cause impaired ability to practice law, generally. Yet numerous witnesses testified that respondent showed no evidence of thinking or reasoning deficits during the period of time in which she was engaging in the misconduct relating to her client trust accounts. Three members of respondent’s office staff, as well as her landlord, all of whom observed respondent regularly and frequently during that period, testified that there had been nothing unusual in respondent’s behavior, speech, or demeanor. Respondent’s part-time legal assistant testified that respondent had not seemed agitated or overly stressed during the relevant time period. Her landlord, who is also a lawyer, observed that respondent had never displayed any sign of disorientation, agitation, or sadness, and he testified that respondent’s recollection and knowledge of legal issues was “impressive.” Moreover, respondent’s client Godier, who spent considerable time with respondent preparing for his trial in December 2014 and January 2015, testified that, during that time, respondent appeared prepared, capable, professional, on-task, focused and confident, even on the day that she arrived late to trial because of the car accident.

Thus

In short, we are not persuaded that respondent suffered from a mental disorder that impaired her functioning in a way that can be considered a cause of her intentional misconduct. No mitigating factor justifies a reduction from the presumptive sanction of disbarment.

(Mike Frisch)