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Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime Judith M William Mitchell Law Review Volume 37 | Issue 2 Article 18 2011 Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime Judith M. Rush Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Rush, Judith M. (2011) "Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime," William Mitchell Law Review: Vol. 37: Iss. 2, Article 18. Available at: http://open.mitchellhamline.edu/wmlr/vol37/iss2/18 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Rush: Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime DISBARMENT OF IMPAIRED LAWYERS: MAKING THE SANCTION FIT THE CRIME Judith M. Rush† I. INTRODUCTION ...................................................................... 917 II. BACKGROUND: MINNESOTA’S DISCIPLINARY SYSTEM ............. 917 A. Determining the Appropriate Disciplinary Sanction ............. 917 B. The Nature of the Misconduct ............................................ 919 C. Mitigating Factors ............................................................. 920 III. LAWYER IMPAIRMENT AND THE DISCIPLINARY PROCESS ......... 923 A. Lawyers in Crisis ............................................................... 923 B. Mitigation for Impaired Lawyers ........................................ 928 C. Psychological Mitigation Applied: In re Mayne ................. 930 D. Mitigation for Alcoholism: In re Rodriguez ...................... 933 IV. OBSTACLES TO REACHING “JUST” AND “RIGHT” DISCIPLINE DECISIONS FOR IMPAIRED LAWYERS ....................................... 934 A. Severe Psychological Problem .............................................. 934 B. Causation ......................................................................... 936 C. Partial Mitigation ............................................................. 940 V. THE BALANCE: DISBARRING IMPAIRED LAWYERS ................... 942 A. Protecting the Public by Disbarring Lawyers ........................ 942 B. Rehabilitation, Compassion, and Mitigation ...................... 944 C. The Balance ...................................................................... 946 VI. CONCLUSION ......................................................................... 948 † Judith M. Rush, Attorney at Law, P.C., St. Paul, Minnesota; Adjunct Professor, Hamline University School of Law and William Mitchell College of Law; Chair, Minnesota Board of Lawyers Professional Responsibility. This comment reflects the author’s personal views. The author wishes to thank Lory Hartenberger, Esq., for her research and other invaluable assistance. 916 Published by Mitchell Hamline Open Access, 2011 1 William Mitchell Law Review, Vol. 37, Iss. 2 [2011], Art. 18 2011] DISBARMENT OF IMPAIRED LAWYERS 917 I. INTRODUCTION The Minnesota Supreme Court’s decisions in In re Mayne1 and In re Rodriguez2 may easily escape the notice of lawyers who do not take particular interest in lawyer discipline cases or lawyer impairment3 issues. Neither stands out as a case contrary to disciplinary case law or unjust in result4—Ms. Mayne and Mr. Rodriguez were both disbarred for theft.5 For those who are particularly cognizant of the plight of our colleagues who suffer from chemical dependency or mental illness, however, the decisions are tragic, since they announce the end of the legal careers of lawyers who engaged in misconduct while they were impaired. The fact that neither was entitled to mitigation of their disciplinary sanction despite the impairments that led to their misconduct raises the question of whether our mitigation jurisprudence has led us closer to punishment and farther from compassion or hope of rehabilitation. This comment explores how lawyer impairment is addressed in Minnesota’s disciplinary process,6 obstacles to achieving just and right decisions in cases involving impairment,7 and the compatibility of compassion and rehabilitation with the goals of lawyer discipline.8 II. BACKGROUND: MINNESOTA’S DISCIPLINARY SYSTEM A. Determining the Appropriate Disciplinary Sanction The purpose of lawyer discipline is to protect the public and the administration of justice from lawyers who do not properly discharge their professional duties to clients, the legal system, and the legal profession.9 Discipline is imposed not to punish the 1. In re Mayne, 783 N.W.2d 153 (Minn. 2010). 2. In re Rodriguez, 783 N.W.2d 170 (Minn. 2010). 3. As used in this comment, “impairment” describes a mental impairment, which may include or be a result of alcoholism or other addiction. See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 03-429, 1 n.2 (2003). 4. In re Rodriguez, 783 N.W.2d at 170 (Anderson, J., dissenting) (stating that the decision appears “just” but it is not “right”). The same might be said of In re Mayne. See In re Mayne, 783 N.W.2d 153; infra Part IV. 5. In re Rodriguez, 783 N.W.2d at 170; In re Mayne, 783 N.W.2d at 163. 6. See infra Parts II and III. 7. See infra Part IV. 8. See infra Part V. 9. STANDARDS FOR IMPOSING LAWYER SANCTIONS 1.1 (1991). http://open.mitchellhamline.edu/wmlr/vol37/iss2/18 2 Rush: Disbarment of Impaired Lawyers: Making the Sanction Fit the Crime 918 WILLIAM MITCHELL LAW REVIEW [Vol. 37:2 lawyer, but to safeguard the administration of justice, protect the public, the courts, the profession, and deter future misconduct.10 The Minnesota Supreme Court’s ultimate focus is on what sanction will best serve these interests.11 Determining the appropriate sanction requires analysis of three factors: 1) the nature of the misconduct; 2) the cumulative weight of the disciplinary violations; and 3) the harm to the public, the legal profession, and the administration of justice.12 The court looks at each case on its facts, considers both aggravating and 13 mitigating circumstances, and looks to similar cases for guidance. 10. See In re Stanbury, 561 N.W.2d 507, 512 (Minn. 1997) (“Discipline is imposed not to punish the lawyer, but to protect the public, to safeguard the administration of justice, and to deter potential future misconduct.”); In re Hanson, 258 Minn. 231, 233, 103 N.W.2d 863, 864 (1960) (“The purpose of disciplining an attorney is not to punish him, but to guard the administration of justice and to protect the courts, the legal profession, and the public.”). 11. See In re Andrade, 736 N.W.2d 603, 609 (Minn. 2007) (Page, J., dissenting) (“[M]y analysis of the case starts not from the presumption of disbarment, but with an analysis of what sanction best serves the purposes of attorney discipline.”); see also In re Jellinger, 728 N.W.2d 917, 922–23 (Minn. 2007) (“To further [the purposes of the disciplinary system], we have imposed conditions on reinstatement in many previous cases, and often those conditions have been as rigorous . .”); In re Rudawski, 710 N.W.2d 264, 271 (Minn. 2006) (“The purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” (internal quotation marks omitted) (quoting In re Vaught, 693 N.W.2d 886, 890 (Minn. 2005))); In re Pierce, 706 N.W.2d 749, 755–56 (Minn. 2005) (“The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” (internal quotation marks omitted) (quoting In re Oberhauser, 679 N.W.2d 153, 159 (Minn. 2004))); In re Otis, 582 N.W.2d 561, 565 (Minn. 1998) (holding that disbarment was not necessary to protect the public); In re Milloy, 571 N.W.2d 39, 46 (Minn. 1997) (stating the court has “not only a right to discipline disabled attorneys who engage in misconduct, but a duty to impose discipline when it is necessary to protect the public”). 12. In re Pyles, 421 N.W.2d 321, 325 (Minn. 1988) (citing In re Agnew, 311 N.W.2d 869, 872 (Minn. 1981)); In re Franke, 345 N.W.2d 224, 228 (Minn. 1984) (citing In re Agnew, 311 N.W.2d at 872 (Minn. 1981)). The ABA model approach considers: 1) the duty violated; 2) the lawyer’s mental state; 3) the potential or actual injury caused by the misconduct; and 4) the existence of aggravating or mitigating factors. STANDARDS FOR IMPOSING LAWYER SANCTIONS 3.0 (1991). 13. In re Rooney, 709 N.W.2d 263, 268 (Minn. 2006) (citing In re Wentzell, 656 N.W.2d 402, 408 (Minn. 2003)); In re Thedens, 557 N.W.2d 344, 347 (Minn. 1997) (“This court looks to similar cases to assist it in determining proper discipline for attorney misconduct.”); In re Wyant, 533 N.W.2d 397, 401 (Minn. 1995) (“Although this court strives to be consistent with its sanctions, prior disciplinary case law is helpful only as analogy; the facts of each case independently dictate the appropriate discipline.”). Published by Mitchell Hamline Open Access, 2011 3 William Mitchell Law Review, Vol. 37, Iss. 2 [2011], Art. 18 2011] DISBARMENT OF IMPAIRED LAWYERS 919 While the court strives for consistency and has occasionally indicated it relies on prior decisions to arrive at an appropriate sanction and only deviates under unusual or special circumstances,14 the court’s decisions reflect careful consideration of the factual circumstances of each
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