Lawyers: please take care of your mental and physical health!
This blog previously discussed three disciplinary cases from our July 7 Advance Sheet. Collectively, the facts from these three cases were downright depressing to lawyers who attempt to behave.
The first case* resulted in a disbarment of a lawyer who borrowed almost $100,000 from his trust account to make payroll and to cover other law firm operating expenses. The money was repaid within ten months!
The attorney attempted to correct this sorry state of affairs by reconciling his trust account, hiring a licensed CPA for all accounting and bookkeeping functions of his firm, giving the trust accounting responsibilities to another lawyer in the firm and completing Legal Ethics and Practice Program Ethics School, Trust Account School, and Advertising School. He was disbarred anyway. We have heard the moral of this story many, many times. The Supreme Court will not allow a lawyer to dip into the trust account, not even for a few months.
On November 10, however, this case was withdrawn, substituted and refiled. ** In the second opinion, the lawyer’s disbarment was withdrawn, and he was, instead, suspended for three years.
Following the July 7 opinion, the lawyer filed a petition for rehearing urging the Court to reconsider the sanction in light of mitigating evidence he provided to the ODC. The lawyer had submitted an affidavit in mitigation which revealed that, at the time of the misconduct, the lawyer was suffering from undiagnosed mental and physical health conditions.
Specifically, he was diagnosed with persistent depressive disorder, Attention-Deficit/Hyperactivity Disorder (ADHD), a motor tic disorder, an unspecified neurocognitive disorder secondary to a B12 deficiency, pernicious anemia, and hypothyroidism. One doctor’s report indicated it is likely that the lawyer’s neurocognitive impairment contributed to poor judgment and decision making. The lawyer now takes multiple medications, is undergoing clinical treatment, and testified that he is committed to continuing treatment for the rest of his life.
In a footnote, the Court pointed out that the ODC admits that it “inexplicably” failed to include the lawyer’s affidavit in mitigation with the other materials supplied to the Commission and the Court.
At the rehearing, the lawyer testified, credibly, according to the Court, that he is remorseful and regrets he did not recognize and treat his symptoms sooner, rather than withdrawing and isolating himself from the support of family, friends, and colleagues. He also testified that it was unfortunate that it took a catastrophe for him to get the help he needed. He said he believes he can make positive contributions to the legal profession if he is allowed to practice again.
The Court said that the mitigating circumstances do not, in any way, excuse the lawyer’s misconduct. But the Court was impressed that the lawyer adequately demonstrated his undiagnosed mental and physical conditions contributed to his conduct, and therefore considered these circumstances in imposing a sanction.
Lawyers, this case should be a lesson to all of us to take good care of our physical and mental health!
*In the Matter of Hopkins, South Carolina Supreme Court Opinion 28042 (July 7, 2021).
**In the Matter of Hopkins, South Carolina Supreme Court Opinion 28042 (November 10, 2021)