Matter of Miller, 83-841.

• Decision Date: 24 January 1989
• Docket Number: No. 83-841.,83-841.
• Citation: 553 A.2d 201
• Parties: In the Matter of Thajuana D. MILLER, Respondent.
• Court: D.C. Court of Appeals

Page 201

553 A.2d 201

In the Matter of Thajuana D. MILLER, Respondent.

No. 83-841.

District of Columbia Court of Appeals.

Argued March 29, 1988.

Decided January 24, 1989.

Robert Fabrikant, with whom M. Suzanne Riedman, Washington, D.C., was on the brief, for respondent.

Michael S. Frisch, Asst. Bar Counsel, with whom Thomas E. Flynn, Jr., Bar Counsel, Portsmouth, N.H., was on the brief, for the Office of Bar Counsel.

Joan L. Goldfrank, Executive Atty., for Bd. on Professional Responsibility.

Before MACK, NEWMAN and STEADMAN, Associate Judges.

MACK, Associate Judge:

On this appeal the basic issue is whether a sanction of one year's suspension recommended by the Board on Professional Responsibility ("Board") for a violation by respondent of Disciplinary Rule 1-102(A)(4) (dishonesty) is consistent with dispositions for comparable conduct and otherwise warranted.¹ Encompassed within that issue are questions of whether the Board properly found that respondent, a thirty-three (33) year old black female attorney, failed to prove the necessary nexus between alcoholism and the misconduct, and whether the Board improperly failed to consider mitigating factors going to respondent's perception, at least, of racism and sexual harassment. We conclude, after reviewing a record showing undisputed evidence of alcoholism, see In re Kersey, 520 A.2d 321 (D.C. 1987), as well as testimony as to events further fostering emotional instability and psychological trauma, that the Board should have given weight to these combined factors as mitigating. We therefore hold that the sanction recommended by the Board is inappropriate.²

I.

Ms. Thajuana Miller, with an exemplary record of accomplishment as a lawyer, began work as an associate at a local law firm on June 1, 1980. It was not to be a harmonious or successful association. According to Miller's testimony before the Hearing Committee of the Board on Professional Responsibility, on her first day of work, the secretary who was assigned to work for her, refused. When Ms. Miller inquired as to whether her race had been the cause of the secretary's refusal, Ms. Miller was reassured that the secretary simply did not want to work for a woman.

Things quickly went downhill. Miller was assigned to a huge litigation matter and she came to feel that the client was contemptuous and that her assignment was made with an undercurrent of racism. There was testimony that racist jokes were told in the firm and by the client and that the firm was less than sensitive to Ms. Miller's discomfort. There was also further testimony that Ms. Miller was informed by a secretary that she should "be careful" and that she was getting a reputation for being "uncooperative." Ms. Miller turned to alcohol; she later attempted suicide. In March, 1981, Miller received an unsatisfactory rating from the firm and six months later she left to begin work for a government agency.

On October 15, 1981, twenty days after she had left the employ of the law firm, Miller left work early to keep a doctor's appointment. The doctor's office was located near the firm's offices and Miller decided to stop by the firm to see a friend. She knew that most of the attorneys would not be there; there was a firm dinner that evening. She testified that she expected to find her friend, an associate who had recently decided to leave the firm and who had expressed to her his intention not to attend the dinner. An acquaintance at the firm admitted her to the offices, but she was unable to find her friend. She worked in the library and ate dinner.

Miller testified that as she sat in the firm's library, she began to think about her experiences over the last several months and to worry about what might be in her personnel file. She decided to investigate. She went first to her personnel file and discovered that the file contained only blank evaluation forms. She then went to the office of the partner who had supervised her work at the firm. En route, she took a pair of plastic gloves from the copy room. Once in the partner's office, she took a key from his desk, unlocked his credenza and searched his files. A surprised partner walked into his office at that moment to find a surprised ex-associate kneeling at his open credenza. He asked what she was doing. Miller responded that she was looking for her file. She handed the partner his key, walked out of his office with her briefcase and hid in a closet for about an hour to avoid meeting him in the elevator.

On February 24, 1982, Bar Counsel petitioned this case charging Miller with violating DR 1-102(A)(4) (dishonesty) of the Code on Professional Responsibility. The case was heard before the Hearing Committee which found that Miller had indeed violated the dishonesty provision of the Code. The Board on Professional Responsibility agreed and recommended that the court suspend Miller for two years.

On March 19, 1984, this court remanded the case to the Board for further hearings, concluding that the hearing had been tainted as a result of ex parte communications between the Chair of the Hearing Committee and the Assistant Bar Counsel assigned to the case. The Board thereafter remanded the case to a new hearing committee for a de novo hearing.

A second Hearing Committee held a hearing on July 25 and 26, 1984. The Committee found Miller guilty of violating DR 1-102(A)(4) and recommended that she be suspended from practice for a year and a day.³ Miller then filed a motion for remand in order to present evidence regarding alcoholism. The motion was granted.

On remand, Miller presented evidence from a former colleague, her husband and her treating psychologist as to her alcoholism. After Miller submitted an affidavit from her treating alcoholism counselor, Bar Counsel conceded that Miller was an alcoholic and that her alcoholism had substantially caused her unethical behavior.

Notwithstanding Bar Counsel's concession, the Hearing Committee concluded that the "evidence presented does not materially alter the previously submitted report and recommendation." The Committee found that Miller was an active alcoholic at the time of her misconduct but that there was insufficient evidence of a causal connection between her alcoholism and her misconduct.

The Board again remanded the case, asking the Committee to explain its reasons for rejecting the stipulation between the parties as to causation. The Committee heard testimony from an expert on alcoholism but remained convinced that the causal connection between Miller's alcoholism and her misconduct had not been sufficiently established.

The Board agreed with the Hearing Committee's conclusions: respondent violated DR 1-102(A)(4); she was an alcoholic; and causation (the requisite nexus between alcoholism and the misconduct) had not been proven. The Board thus did not consider alcoholism in mitigation. It did, however, consider the delay in disciplinary proceedings in mitigation and recommended that the court suspend Miller for one year.

Miller, in appearing before this court, argues that suspension from practice is a disproportionately severe penalty in light of all the circumstances present here. She argues that her perceptions of sexism and racism should have been considered in mitigation. She also argues that she has adequately shown that her alcoholism caused her misconduct and thus should be considered in mitigation. Further, she contends that the sanction recommended is excessive in light of sanctions imposed in other disciplinary cases.

II.

In In re Kersey, supra, this court held that alcoholism can be a mitigating circumstance in determining attorney discipline provided there is adequate proof of causality between the alcoholism and the underlying misconduct. The court held that to be considered in mitigation, the alcoholism must be a "but for" cause of the charged misconduct. Id. at 327.

In Kersey, respondent had been charged with twenty-four violations of the Code on Professional Responsibility. There was no dispute that Kersey was an alcoholic. Id. at 325. This court was also convinced that there was a close nexus between the alcoholism and his misconduct: "[b]ut for Kersey's alcoholism, his misconduct would not have occurred." Id. at 327 (footnote omitted). But the court recognized the difficulty of proof in such cases. "While we believe that it is an impossible burden to prove that Kersey's alcoholism caused each and every disciplinary violation, the fact that alcoholism has a severe effect on human physiology and behavior, along with the record evidence of Kersey's own behavior, establish that Kersey's professional conduct was substantially affected by his alcoholism." Id. at 326 (emphasis added). This court noted that Kersey had presented expert testimony describing his behavior as "delusional," and his judgment as "poor." Id. at 326. Kersey also testified that many of his writings during this period were "irrational and nonsensical." Id. at 326-27.

Our reading of Kersey convinces us that where an attorney claims alcoholism as a mitigating circumstance in a disciplinary proceeding, the attorney has the burden of proof on that issue and the attorney must show that the alcoholism "substantially affected" the charged misconduct by a preponderance of the evidence⁴ How the nexus between misconduct and alcoholism may be demonstrated — by the nature of the misconduct itself, i.e., misappropriation to buy alcohol or neglect resulting from alcohol-induced stupor; by evidence concerning the respondent's behavior contemporaneously with the misconduct, i.e., grossly delusional explanations for improper actions or a pattern of otherwise unexplainable behavior; or, in the proper case, the respondent's own testimony linking the two — will vary from case to case.

In this case, there is no real dispute that Ms. Miller was an alcoholic at the time of the incident which led to these proceedings. Both she and her husband testified that she was...