ARDC Hearing Board Recommends Six Month Suspension For Attorney Who Suffered From Depression

Filed November 20:

The ARDC Hearing board has recommended a six month suspension stayed 90 days by one year of probation. The attorney neglected several client matters. However, at the hearing there was testimony that she suffered from migraines and severe depression but that she had obtained treatment for those medical issues. The case is also significant because the Panel noted that the ARDC’s expert, a psychiatrist, appeared to offer new and conflicting opinions at trial.

The discussion concerning the mitigating factors is set forth below:

“Respondent’s conduct was related to a mental health condition but she demonstrated to us that she has obtained treatment and is not likely to harm the public while her treatment continues.

In requesting a suspension until further order of the court, the Administrator relies on the testimony of Dr. Silberberg that Respondent is not currently fit to practice and will not be fit until she demonstrates a sustained period of compliance with his four recommendations. This case presents the unusual situation of a medical expert who gave inconsistent testimony regarding Respondent’s fitness to practice. We find Dr. Silberberg’s testimony on direct examination that Respondent is not currently fit to practice law to be a significant change from the following opinions expressed in his written reports.
In his first report, Dr. Silberberg opined, “Ms. Beckert is currently fit to practice law with reasonable judgment and skill and to adhere to the rules of professional conduct provided she is actively engaged in treatment for her Major Depression, Recurrent and professional monitoring to prevent relapse” In his second report, Dr. Silberberg opined, “Ms. Beckert is currently fit to practice law with reasonable judgment and skill and to adhere to the rules of professional conduct provided she is actively engaged in treatment and professional monitoring for her Major Depression, Recurrent to prevent relapse. The treatment must involve strategies to recognize early signs of relapse of depression, treatment of aggravating conditions such as thyroid illness, migraines and iron deficiency anemia; and also the development of insight into her responsibility when she lost control of her professional life in 2011-2012.” And yet, when asked if he had changed the latter opinion since he issued it in his second report, Dr. Silberberg answered, “No, that is my opinion.” Thus, we are uncertain about the basis for his testimony at the hearing that Respondent is not currently fit to practice law. 
Because of the inconsistency between the testimony and the reports and the lack of explanation for the inconsistency, we decline to rely on Dr. Silberberg’s testimony that Respondent is not currently fit to practice. We find the opinions set forth in his written reports more reliable and consistent with the evidence before us. Having carefully considered all of the evidence, we find Respondent is currently fit to practice law provided that she continues to comply with treatment recommendations. We further find Respondent has complied with the recommendations addressing the mental and physical issues that were causally connected to the misconduct.
As Dr. Silberberg acknowledged, Respondent has been receiving psychotherapy and medication management from her psychiatrist, Dr. Cigante. She has also seen a neurologist for treatment of her migraines. Although she had not been able to get an appointment with the neurologist before her most recent meeting with Dr. Silberberg, she did see the neurologist shortly thereafter and has a plan to follow up with him every six months.
Respondent also obtained attorney Radke’s agreement to act as a mentor and monitor of her practice. While Dr. Silberberg expressed concern about Respondent’s reliance on attorney Radke, who represented Respondent in this proceeding, we observed both Respondent and attorney Radke during the hearing in this matter and do not share Dr. Silberberg’s concerns. Attorney Radke is a very capable attorney, and he and Respondent appeared to work well with each other.
Dr. Silberberg noted in his second report that Respondent had not complied with his recommendation to “attend any classes/professionalism courses recommended by ARDC at the frequency and duration required by ARDC to improve her efficiency, accountability and effectiveness as an attorney.” We question Dr. Silberberg’s qualifications to make such a recommendation and do not find that Respondent’s lack of compliance with this particular recommendation negatively impacts her fitness to practice law. As a general principle, the Illinois Supreme Court governs attorney legal education obligations. It is not the role of a medical expert to recommend legal education requirements for a respondent. Respondent testified she has been working toward fulfilling her mandatory legal education requirements and is aware she must do so in order to return to active status. In our view, no additional legal education requirements are necessary. Therefore, we do not adopt Dr. Silberberg’s recommendation in this regard.
The evidence demonstrated that Respondent has obtained treatment for her depression and migraines, has credibly expressed her intention to maintain treatment in the future, and has obtained a mentor to assist with her practice. This is not a situation in which Respondent is unable or unwilling to acknowledge the need for treatment, or is currently unable to adhere to the Rules of Professional Conduct. We believe the purposes of the disciplinary process will be best served by a suspension stayed in part by probation, subject to conditions. That said, given that Respondent’s prior untreated depression led to significant adverse impacts on the matters at issue in this proceeding, we believe that, if Respondent should violate the terms of her probation, she should be suspended until further order and required to demonstrate that she is fit to return to practice.
Supreme Court Rule 772 provides that an attorney may be placed on probation if she demonstrates that she
(1) Can perform legal services and the continued practice of law will not cause the courts or the legal profession to fall into disrepute;
(2) Is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
(3) Has a disability which is temporary or minor and does not require treatment and transfer to inactive status; and
(4) Is not guilty of acts warranting disbarment.
The requirements for probation are met in this case. Respondent is an experienced lawyer who capably represented clients when she was not suffering from severe depression. Her depression is in partial remission and does not require transfer to inactive status. Respondent’s continued compliance with her treatment recommendations can and will be monitored throughout the probationary period, which will protect the public and legal profession. If she complies with the recommended probationary conditions, we consider the risk of future misconduct to be minimal. As a protective measure, a suspension until further order of the court will go into effect if Respondent fails to comply with any of the probationary conditions.
We believe Respondent’s misconduct warrants a short period of actual suspension, particularly given that the misconduct in the Mamon matter was not related to her depression. A suspension of six months and until further order of the court, stayed after 90 days by one year of probation, is appropriate and consistent with the following cases, which involve misconduct similar to Respondent’s as well as evidence of a disability that contributed to the misconduct.
The attorney in In re Thomson, 98 CH 81, M.R. 17012 (Nov. 22, 2000), neglected eight client matters, most of which were bankruptcy matters, and failed to return unearned fees. Thomson suffered from debilitating alcoholism at the time of his misconduct but had regained his sobriety at the time of the hearing. Because Thomson had not made an effort to return any of the unearned fees at the time of the hearing, the majority of the Hearing Board Panel determined a short period of actual suspension was warranted, but the remaining portion of the suspension would be stayed by probation. The Panel noted that probation is appropriate when an attorney has committed misconduct occasioned by a disability. Probation, when combined with a stay of a portion of a suspension, “provides a strong incentive for the attorney to continue on the path toward rehabilitation.” Thomson, 98 CH 81, Hearing Bd. at 31-32, citing In re Kunz, 122 Ill. 2d 547, 524 N.E.2d 544 (1988). Thomson was suspended for three years and until further order of the court, with all but the first three months stayed by three years of probation.
The attorney in In re Kofkin, 07 CH 23, M.R. 22643 (Nov. 18, 2008), was suspended for one year and until further order of the court, with the suspension stayed after 60 days by two years of probation. Kofkin neglected four client matters, failed to return unearned fees to two clients, and failed to cooperate with the Administrator’s investigation. The Administrator’s psychiatric expert diagnosed Kofkin with recurrent major depression during the time of the misconduct, and found a causal relationship between Kofkin’s condition and some of the misconduct. Similar to Respondent, Kofkin pursued mental health treatment as recommended by the Administrator’s expert.
In In re Burkhart, 09 CH 99, M.R. 25174 (Mar. 19, 2012), the attorney neglected four patent matters over a four-year period and improperly used the name of a deceased attorney in the name of his law firm. Burkhart entered into a settlement agreement in connection with three of the neglected matters but was not able to make full restitution due to problems with depression. Burkhart began treatment for his depression prior to the filing of the disciplinary complaint. At that time he had limited concentration and ability to organize and stopped practicing law. His condition improved over time. The Administrator’s psychiatric expert diagnosed Burkhart with recurrent major depressive disorder, largely in remission, and a personality disorder, not otherwise specified. The Administrator’s expert opined that Burkhart could practice law in accordance with the Rules of Professional Conduct if he remained in treatment with a mental health professional and obtained a primary care physician. Burkhart was suspended for one year and until further order of the court, with all but the first 90 days stayed by a two-year period of probation.
Like the attorneys in the foregoing cases, Respondent has taken steps to address the mental health issues that contributed to her misconduct and has indicated her commitment to treatment. A period of probation will allow Respondent to be monitored to ensure she can provide legal services without harm to the public, with the added protection of additional suspension in the event of noncompliance with the probation conditions.”

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