By Karen Rubin
A lawyer who was physically dependent on opioids and in an “opioid haze” was disbarred
earlier this month for stealing more than $117,000 from a client. Her chronic pain and addiction were not “extraordinary mitigating” factors that justified departing from the presumptive penalty for client theft, the Washington Supreme Court held.
The decision is a stark reminder at a time when the ravages of lawyer substance abuse have been spotlighted in studies
and current events
Trust account theft
The lawyer had a family law practice and worked with one associate. In 2009, she agreed to represent a client in dissolving his marriage, took a $5,000 retainer and assigned the case to her associate, a recent law school graduate.
The court soon entered a dissolution decree, and awarded the client more than $117,000 as an equalization payment for his interest in the family house, which the lawyer put in her trust account.
The lawyer never paid the client. Instead, she moved her trust account to another bank, and eventually transferred all the money to her personal account. She used some of the funds to keep her practice afloat, but also for symphony and Mariners tickets, manicures, groceries, pet food and restaurants.
Most of the client’s many calls to the lawyer went unanswered. When the lawyer did respond, she said she had been sick and needed time to get back to the client about the funds. At the time, the client was destitute and sleeping on a friend’s couch while waiting for the settlement funds to help him get back on his feet.
In the meantime, the lawyer stopped coming to her office, and stopped attending to her practice. The associate registered her concern in an e-mail, citing the trust account irregularities and the “ethical conundrum.” In reply, the lawyer said that the associate had no responsibilities regarding the office’s finances, and purported to “relieve [the associate] of any ethical obligations regarding the firm’s financial business…” The associate soon left the firm. (A lawyer in such circumstances might need to consider whether Model Rule 8.3
, “Reporting Professional Misconduct,” could be applicable.)
In 2014, the lawyer pled guilty to a criminal charge of first degree theft, and was sentenced to nine months of electronic home monitoring.
The lawyer had been in successive car accidents in 2003, 2004 and 2006, and had developed chronic pain. After the lawyer unsuccessfully tried several pain management techniques, her doctor prescribed a variety of opioids in 2006; the lawyer started taking the medication in increasingly large amounts and became dependent.
In her disciplinary filings, the lawyer said that she was in an “opioid haze,” and that her chemical dependency caused her to “overlook the proper disbursal of the trust funds” to the client.
Evidence at the hearing depicted the lawyer’s personality changes. As her drug use mounted, she became chronically lethargic, “would pass out midsentence and was unable to complete simple tasks.”
Finally, in 2012, the lawyer entered a detox program.
Under the ABA’s Standards for Imposing Lawyer Sanctions
and Washington law, the presumptive punishment for client theft is disbarment. Only “extraordinary” mitigation will merit reducing that sanction, the court noted.
The disciplinary hearing officer found that the lawyer had a physical disability due to her chronic pain; that she was chemically dependent; and that these two factors justified a three-year suspension rather than the presumptive disbarment penalty.
But the full disciplinary board — by an 11-0 unanimous vote — disagreed, and the state supreme court adopted the board’s recommendation of disbarment.
The court rejected the argument that the lawyer’s significant pain was an “extraordinary mitigator”: “We do not wish to minimize the debilitating and disabling impact that chronic pain has on many individuals’ lives. Nevertheless, such pain does not excuse extreme lapses of an attorney’s moral judgment.”
And the court held that the lawyer’s chemical dependency, either alone or in combination, would not justify a sanction short of disbarment — even if the lawyer had been able to show that her opioid dependence caused her to steal client funds.
The court wrote that it has consistently found that alcohol and drug addiction are not extraordinary mitigating factors in cases involving client theft. Rather, the court said, despite her “opioid haze,” the lawyer was to some degree “culpable and responsible for her actions. At some point, she ‘chose the path’ that led to her misconduct.” The court refused to view the lawyer as an “innocent victim of forces beyond [her] control …. We must hold her responsible for the harm she caused to the real victim here [the client].”
Harsh result — or appropriate?
This was a tragic situation — for the client, whose money was stolen by the fiduciary who was supposed to protect his rights; and for the lawyer, whose professional life has now been foreclosed by a terrible lapse.
As a profession — and as individuals — we need to do a much better job of intervening in the chain of life events that led to the result in this case. Our failure to do so when we are aware of a situation like this makes us bystanders. Our obligation as humans demands more.