Disabilities and disorders are not enough to completely militate attorney ethical violations like misappropriation and fraud unless it can be shown that they were the root cause of the alleged misconduct and precluded the attorney from conforming his or her conduct to the requirements of the law and the applicable ethical rules.
Statistics reveal that nearly 1 in 4 adults suffer from a physical disability, and nearly 1 in 5 adults is afflicted by mental illness. These statistics have gotten worse as a result of the coronavirus. Attorneys are not immune. Many suffer from conditions that impact the ability to practice law and cause them to engage in conduct that runs afoul of the Maryland Attorneys' Rules of Professional Conduct. When faced with serious ethical violations that involve intentional misappropriation, dishonesty, fraud, other theft, or criminal offenses, it is imperative to analyze whether a physical or mental disability or disorder was the root cause of the conduct at issue. The existence of any disability or disorder is important because it can, depending on the case, serve as mitigation to the normal sanction of disbarment.
Often referred to as the "root cause" test or "Vanderlinde standard" after AGC v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001), the Court of Appeals will undertake a three-step review when presented with evidence of a disability and disorder, including ascertaining: (1) whether the attorney had a serious debilitating condition or disorder; (2) whether the condition or disorder was the "root cause" of the misconduct at issue; and (3) whether the condition or disorder resulted in the attorney's "utter inability to conform his or her conduct with the law" and the Maryland Lawyers' Rules of Professional Conduct.[1] Some conditions that the Court of Appeals has found compelling include alcoholism and severe depression,[2] personality disorders,[3] drug abuse,[4] and attention deficit disorder, depending on how it affected the attorney.[5]
While it is often not difficult to demonstrate the first two Vanderlinde elements, the existence of a physical or mental disorder and that it is the root cause of the misconduct at issue, it can be infinitely more challenging to show the third one, that the disorder precluded the attorney from conforming his or her conduct to the law and the ethical rules. This was shown recently in AGC v. Miller, 2020 WL 464628 (Md. January 29, 2020).
Miller involved a respondent-attorney's alleged intentional misrepresentations concerning an adoption matter and subsequent alleged misrepresentations to Bar Counsel during a subsequent investigation. The trial judge found a number of violations, including violations of Rules 8.1 and 8.4(c). Id. at *6. The trial judge rejected the respondent-attorney's assertion that she suffered from PTSD, that the PTSD led to the misconduct complained of, and that disbarment was not warranted. Id.
The Miller case is interesting because the respondent not only argued on appeal that her PTSD was the underlying cause of her misconduct, she also asked the Court of Appeals to expand the Vanderlinde standard "to encompass mental health disorders that cause only temporary debilitation." Id. at *23. The Court of Appeals rejected both arguments and found that the respondent failed to meet the Vanderlinde standard by being unable to demonstrate the third element, namely that the PTSD caused her to be unable to conform her conduct to the law. Id. at *25. Significantly, the expert witnesses called at trial, including the respondent's expert, testified that while the PTSD was the root cause of the respondent's ethical violations, they could not say that it caused the respondent to be unable to conform her behavior to the law and the ethical rules. Id. at *26.
There are several takeaways from a review of the root cause case law generally and Miller specifically:
- Expert testimony will be needed to present evidence of a disease or disorder in an attorney-discipline case.
- The expert or experts will need to present testimony at trial that addresses the reasons why the disease or disorder was serious and debilitating, was the root cause of the misconduct, and why the disease or disorder prevented the respondent-attorney from conforming his or her conduct to the law and the Maryland Lawyers' Rules of Professional Conduct.
- Failure to address all three Vanderlinde elements, as in Miller, will likely result in a rejection of the argument that the attorney's disease or disorder should prevent the sanction of disbarment in a serious case involving charges like fraud, misappropriation, or criminal conduct.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact the author, George Mahaffey.
NOTES
[1] See AGC v Palmer, 417 Md. 185, 212, 9 A.3d 37, 53 (2010).
[2] See AGC v. Christopher, 383 Md. 624, 640, 861 A.2d at 701 (2004).
[3] AGC v. Cappell, 389 Md. 402, 886 A.2d 112 (2005).
[4] AGC v. Garfield, 369 Md. 85, 797 A.2d 757 (2002).
[5] AGC v. Yates, 467 Md. 287, 225 A.3d 1 (2020).
