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In re Hunter12/28/2000
as motivated by a genuine desire to help people obtain financing because it had previously found that respondent had a dishonest or selfish motive for much of the misconduct. Second, the Board rejected respondent's claim that his mental disorder, attention deficit disorder (ADD), be considered a mitigating factor. It concluded that ADD would explain a disorganized practice and neglect of client matters, but did not explain repeated use of client's money without permission, lying to clients, attorneys and judges, and covering up the misconduct to protect himself. Third, the Board rejected respondent's claim that he has been rehabilitated by obtaining professional help and taking medication for ADD because addressing his ADD is not rehabilitative of the misconduct that is not attributable to the mental disability. The Board found no credible evidence that respondent had learned from his mistakes and now has the ability to handle client funds in a responsible manner. In view of the aggravating factors and the absence of mitigating factors, the Board unanimously concluded that disbarrment is the appropriate sanction.
Although we make the ultimate decision on discipline, we accord deference to the Board's recommendations. See In re Berk, 157 Vt. 524, 527-28, 602 A.2d 946, 948 (1991). Before this Court, respondent raises three issues. He contends first that the Board erred in failing to consider his mental disability as a mitigating factor. He concedes: "No one has suggested that ADD was a direct cause of the infractions." He contends, however, that the Board's past decisions have recognized a mental impairment as a mitigating factor without requiring a showing that the mental impairment caused the misconduct. We have held otherwise.
In In re Hunter, 167 Vt. 219, 224-25, 704 A.2d 1154, 1157 (1997), respondent argued that ADD caused the disorganization of his practice which resulted in the many instances in which he neglected client matters. We rejected this claim because the evidence did not show that ADD caused respondent's most egregious misconduct, misappropriation of client funds by loaning them to other clients without permission to do so. See id. at 225, 704 A.2d at 1157. In so ruling, we adopted the ABA Standard requiring that the respondent show direct causation between the mental disability and the offense before the mental disability may be considered as a mitigating factor. See id.; ABA Standards, supra, Standard 9.3(i)(2) and commentary (1992 amendments). Other courts have similarly required a showing of causation before considering a mental disability as a mitigating factor. See, e.g., Oklahoma Bar Assoc. v. Busch, 976 P.2d 38, 56 (Okla.1999) (rejecting respondent's claim that ADD mitigated his misconduct because "there is no causal connection between respondent's condition and the ethical violations in contest"). Thus, we reject respondent's contention that he need not show that the mental disability caused the misconduct.
As in respondent's previous disciplinary proceeding, we conclude again that ADD does not explain respondent's most egregious conduct: (1) loaning client funds to other clients without permission, (2) lying to clients, attorneys and a judge about client funds, and (3) using client funds to make loans and payments for his personal benefit. Indeed, respondent presented no evidence that ADD caused this misconduct. His treating psychiatrist, who testified as his medical expert, testified that ADD does not explain respondent's lies to clients about their funds. Accordingly, we agree with the Board that ADD is not a mitigating factor to this misconduct.
Second, respondent contends that the Board erred in failing to address seven other mitigating factor
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