Disability act does not halt bar discipline

by Scott Drexel

While the enactment of the Americans with Disabilities Act (42 U.S.C., §§12101-12213) provides important protections to ensure equality of opportunity for disabled individuals, it does not preclude the imposition of discipline against those attorneys who engage in professional misconduct.

The stated goal of the ADA is to achieve "equality of opportunity, full participation, independent living and economic self-sufficiency" for disabled individuals. (42 U.S.C., §12101 (a)(8).)

It defines "disability" with respect to an individual as a physical or mental impairment that substantially limits one or more of the major life activities of the individual.

Additionally, there must either be a record of the impairment or evidence that the individual is regarded as having the impairment. (42 U.S.C., §12102(2).)

The act also defines the term "qualified individual with a disability" as an individual with a disability who, with or without reasonable modifications to rules, policies or practices, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. (42 U.S.C., §12131(2).)

The ADA further provides that no "qualified individual" with a disability may, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity or be subjected to discrimination by that entity. (42 U.S.C., §12132.)

Finally, subchapter II of the ADA provides that the act is applicable to a broad range of "public entities." (42 U.S.C., §12131.) Case law uniformly provides that the ADA is applicable to state bar associations and to their admissions and discipline processes. (In the Matter of Wolfgram (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 355, 361; State ex rel. Oklahoma Bar Assn. v. Busch (1996) 919 P.2d 1114, 1118; Florida Bar v. Clement (1995) 662 So.2d 690, 700; Clark v. Virginia Bd. of Bar Examiners (E.D.Va. 1994) 861 F.Supp. 512-516-517.)

Although there are as yet few published opinions relating to the application of the ADA to attorney discipline, the developing case law clearly indicates that attorneys whose conduct violates established ethical standards or who are unable to practice law without substantial threat of harm to their clients and the public are not being permitted to avoid the imposition of discipline based upon application of the ADA.

In Florida Bar v. Clement, the Florida Supreme Court disbarred an attorney suffering from bipolar disorder (manic depression) who had misused and misappropriated client funds.

In that case, the Florida court found that the attorney's misconduct was not a direct result of his bipolar disorder and that the disorder did not preclude him from distinguishing between right and wrong.

Moreover, the Florida Supreme Court held that, even if the attorney's disability was causally connected to his misconduct, the ADA would not preclude the court from imposing discipline.

The court reasoned that the attorney is not "qualified" to be a member of the Florida bar because he committed serious misconduct and that no "reasonable modifications" to the bar's ethical rules prohibiting misuse of client funds were possible. (Florida Bar v. Clement (1995) 662 So.2d at p. 700.)

Oklahoma case

Similarly, in State ex rel. Oklahoma Bar Assn. v. Busch, the Oklahoma Supreme Court suspended an attorney suffering from Attention Deficit Disorder (ADD) for a period of two years and one day after finding him culpable of making a misrepresentation to a judge and entering into an agreement without his client's permission.

The Oklahoma Supreme Court rejected the argument that the ADA precluded the attorney from being disciplined, holding that the court would be shirking its duty to the members of the bar were it to permit the attorney to avoid discipline and that such failure would erode public confidence in the legal profession.

Mitigating factor

Nevertheless, the court considered the attorney's ADD as a mitigating factor in light of the fact that he was being successfully treated for the disability and that he had become extensively involved in a volunteer program to assist other attorneys suffering from disabilities. (Busch, 919 P.2d at pp. 1118-1120.)

Finally, in In the Matter of Wolfgram, the State Bar Court review department placed an attorney who was suffering from psychological and emotional problems on involuntary inactive enrollment pursuant to Business & Professions Code §6007(b)(3), despite his claim that the ADA precluded that enrollment.

Citing cases arising in the employment context in which the federal courts have held that an employee is not a "qualified individual" entitled to protection under the ADA unless he or she meets the essential requirements of the job (Tyndall v. National Edu. Centers Inc. of California (4th Cir. 1994) 31 F.3d 209, 212-214), the review department concluded that the attorney was not being enrolled as an inactive member merely because he was suffering from a disability but, rather, because he was unable to or had habitually failed to perform his duties competently or was unable to practice law without substantial threat of harm to his clients and the public. (Wolfgram, 3 Cal. State Bar Ct. Rptr. at p. 362.)

High ethical standards

Thus, while the ADA removes artificial barriers to disabled individuals seeking to engage in the practice of law, it does not require or authorize a reduction in the ethical standards of conduct required of attorneys and does not preclude the imposition of discipline against errant members.

Scott Drexel is chief counsel of the State Bar Court.