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| Suspension vs Disbarment? from USherald.com |
How to use an opinion letter is important but what type of letter to use in each specific case is crucial. The difference in this case was between a period of suspension from practice, and a disbarment. In other words a temporary professional license loss versus a lifetime license loss.
What did this attorney do to have to face a disciplinary hearing?
What letters did he and his attorney provide?
Why were those letters ineffective at saving his license to practice law?
Mitigation Means to Lessen the Consequences
Attorneys love the word mitigate. It's a fancy way of saying to reduce, to lessen, to alleviate, and to unburden. I like to joke litigation (the fight of trial) can be avoided with proper mitigation. Because so often fighting the charges is a loser. Better when the facts and the law are truly against you to focus on mitigating the punishment.
Legal Punishment Usually has Wide Ranges
Punishment in so many legal situations ranges from fines to incarceration. From the very least of consequences to harsh and career ending ones. Keeping this framework in mind is important in realizing that improvement and movement far from the fire is not only possible but probable with a proper strategy.
Everyone Wants Something So Why Don't You Give it to Them?
You know judges are just like other people. Every human being wants something. In each particular situation what they want may vary but nevertheless they desire reasons to support their decisions.
We only have control over three things:
OUR decisions
OUR perceptions
OUR actions
How do we persuade a committee or a judge or a prosecutor or a probation department?
Give them the reasons, the proof of WHY you deserve something. This WHY may also be supported by case law. Shift their perceptions to change their decisions and guide their final actions.
New York Like Pennsylvania Has Case Law that is Legal History
Legal history means how things were decided in past cases. If we as attorneys want to know what we need in the future we only need to look into the past. The past may hold the answers to our questions.
I use the same philosophy in working backward from criminal jury instructions of what a prosecutor has to prove. Can we defend against the elements is the same as can we supply and prove our position.
Pennsylvania Judge of 27 Years has a Cocaine Habit
Once upon a time a Pennsylvania judge was overseeing drug court, and helping those with addiction problems. But the judge had a little secret. He was directing the state troopers to deposit seized drugs in an evidence locker inside his courtroom. The judge then dipped into the cocaine stash and was substituting baking powder for the cocaine.
Judge gets busted and charged with crimes. Judge also faces administrative (law license) hearing. Judge states he has an addiction problem at the heart of his misconduct. I assume he hires an attorney and prepares for his hearings. These hearings are to decide does the judge receive a two year suspension from the practice of law or a lifetime disbarment.
see case decision link below.
http://www.pacourts.us/assets/opinions/Supreme/out/Majority%20Opinion%20%20Disbarment%20%2010339351831792591.pdf?cb=1
Losing Your Professional License is Devastating and Why 68 Character Letters Ain't Enough
Judge provides the committee with 68 character letters. They are not from experts but lay persons. He also provided the committee to decide his fate with three letters from his addiction and rehabilitation counselors. BUT all of this is NOT enough to save his law license.
Why were all these character letters and proof of his addiction progress NOT enough?
Because case law is specific about what this judge really needed to avoid the worst.
Pennsylvania case law stated that he needed medical opinion letters from doctors that stated his troubled (sick) mental state was the root cause of his misconduct.
In fact the court found that lay opinion letters of addiction and mental illness were NOT sufficient in this situation. An attorney seeking mitigation MUST offer expert psychiatric testimony.
The Court found that this evidence did not meet the mitigation standard set in Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989), which requires an attorney seeking mitigation to offer expert psychiatric testimony showing that a medical condition was a causal factor in the misconduct. The Court stated:
Our Court has never held that lay opinions alone, are sufficient to establish that an addiction or mental illness was the cause of an attorney's misconduct. Indeed, recent decisions of our Court have emphasized the critical role of expert testimony in establishing such a causal link. [Opinion at 26]
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