Sleep Apnea No Excuse for Lawyer Misconduct

Here’s a risk management tip: if you’ve been accused of doing little to nothing on your client’s case and lying to them about it, the fact that you have sleep apnea will probably not get you off the hook.

Especially if at the same time you were billing your client and aggressively pursuing payment for services not rendered.

That’s the lesson of this case, in which the New Hampshire Supreme Court’s Professional Conduct Committee recommended a three-year suspension, with 18 months stayed, for a Manchester attorney.

“According to the committee, [the lawyer] lied to his clients about the work he wasn’t doing, falsely blamed bad outcomes on court corruption, billed his clients far above any time he spent on the case, and then aggressively pursued payment,” reports the ABA Journal.

The lawyer told the hearing panel that he had experienced undiagnosed sleep apnea for years, including the period encompassing the charges, according to the Journal and the New Hampshire Union Leader. He contended the condition affected his ability to “focus, multitask, and exercise sound judgment.”

The committee concluded that his sleep apnea did not prevent him from forming a “knowing state of mind with respect to the charged misconduct.”

“Though [the attorney] was inattentive to many matters in this litigation, he remembered to bill his clients, and he remembered to make efforts to collect money from them that he had not earned,”  the committee said.

9 Important Things to Know About Rule 1.3 Diligence

Rule 1.3 says, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

1. “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” (Comment 1)

2. “A lawyer’s work load must be controlled so that each matter can be handled competently.” (Comment 2)

3. “Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions. In extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness.” (Comment 3)

4. “Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.” (Comment 4)

5. “If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved.” (Comment 4)

6. “If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so.” (Comment 4)

7. “Conduct that may constitute professional malpractice does not necessarily constitute a violation of the ethical duty to represent a client diligently. Generally speaking, a single instance of unaggravated negligence does not warrant discipline.” (Comment 6)

8. “Conduct warranting the imposition of professional discipline under the rule is characterized by the element of intent manifested when a lawyer knowingly or recklessly disregards his or her obligations. Breach of the duty of diligence sufficient to warrant professional discipline occurs when a lawyer consistently fails to carry out the obligations that the lawyer has assumed for his or her clients.” (Comment 7)

9. “A pattern of negligent conduct is not excused by a burdensome case load or inadequate office procedures.” (Comment 7)

Sources:

• ABA Journal http://www.abajournal.com/news/article/lawyer-blamed-sleep-apnea-for-inaction-on-case-but-remembered-to-bill-clients-committee-says/
• New Hampshire Union Leader https://www.unionleader.com/news/courts/manchester-attorney-facing-three-year-suspension-blames-sleep-apnea/article_4708916b-7c0a-5e85-ba3d-4e0eb454748d.htm
• New Hampshire Supreme Court, Professional Conduct Committee #16-044 https://bloximages.newyork1.vip.townnews.com/unionleader.com/content/tncms/assets/v3/editorial/4/f2/4f271f86-035e-51d6-8de3-f6da466c8bf0/5c9ab1fee4bd3.pdf.pdf
• NC State Bar Rule 1.3 https://www.ncbar.gov/for-lawyers/ethics/rules-of-professional-conduct/rule-13-diligence/