Ferren, Terry and Wagner, Associate Judges.
The opinion of the court was delivered by: Wagner
The Board of Professional Responsibility (the Board) found that respondent, William Jordan Temple, engaged in serious misconduct between 1979 and 1986 in violation of various disciplinary rules which, absent mitigating factors, would warrant disbarment. The violations cited are not disputed before this court. The principal issue raised is whether an attorney's addiction to drugs, legally acquired, may be considered as a mitigating factor in imposing sanctions for the attorney's misconduct. We hold, as the Board recommended, that addiction to prescription drugs lawfully obtained, like alcoholism, can be treated as a mitigating factor in sanctioning an attorney for misconduct.
Although the Board concluded that respondent was addicted to drugs lawfully acquired and that his addiction "substantially affected" his professional conduct, it nevertheless recommended that respondent be disbarred because he failed to prove by a preponderance of the evidence that addiction was the "but for" cause (except in one instance) of his misconduct. In reaching this Conclusion, the Board equated the "but for" cause found in In re Kersey, 520 A.2d 321, 327 (D.C. 1987), with "sole cause." The Board's interpretation of the requisite causal nexus between the attorney's misconduct and the mitigating factor is too narrow, and it is inconsistent with prior holdings of this court. We reaffirm that the "but for" test set forth in Kersey, as further explained in subsequent decisions, requires proof that the attorney's conduct was "substantially affected" by alcoholism or drug addiction. Therefore, we accept the Board's alternate Conclusion, which is supported by substantial evidence, that respondent's professional conduct was substantially affected by his drug addiction and may be considered in mitigation of sanctions. We remand the case to the Board for further proceedings to determine whether the current status of respondent's rehabilitation is such as to warrant mitigation of sanctions and for a recommendation of sanctions with consideration given to such additional information.
This case involves two disciplinary proceedings against respondent which were heard by two separate Hearing Committees. The first hearing was held before Hearing Committee Number Four which made findings that respondent failed to file three annual accounts in 1980, 1981 and 1982 as required by Super. Ct. Civ. Rule 305 (a) in connection with the guardianship of his nephew, as a result of which respondent was removed as guardian in 1985. The respondent also failed to file a required final account. The case was referred to the Auditor Master who found a deficiency of $7015.76 in respondent's account for the guardianship. Judgment was subsequently entered against respondent for that sum because he failed to promptly deliver the amount found due to the successor guardian. Hearing Committee Number Four also found that respondent knowingly filed four altered bank statements for the guardianship account with the Register of Wills. *fn1 As a result of this conduct, the Hearing Committee concluded that respondent violated the following disciplinary rules: (1) DR 1-102(A)(3) (illegal conduct involving moral turpitude) and DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation) (four instances related to each false bank statement); (2) DR 1-102(A)(5) (conduct prejudicial to the administration of Justice) (four instances for filing false bank statements and for failure to file four accounts); (3) DR 9-103(B)(4) (failure to pay promptly client funds) (for failure to deliver guardianship funds to successor); (4) DR 6-101(A)(3) (neglect of legal matter) and DR 7-101(A)(1) (failure to seek client's lawful objectives) (failure to file guardianship accounts).
Complaints involving two of respondent's other clients were heard by Hearing Committee Number Four. In June 1980, one of respondent's clients was awarded an absolute divorce in the Superior Court of the District of Columbia, and the trial Judge instructed respondent to submit an order for signature to effectuate the judgment of the court. Although the client brought the matter to respondent's attention in the intervening years, as of the date of the initial hearing in this proceeding, June 7, 1988, respondent had not submitted the order, and the judgment of the court had not been finalized. Based on this conduct, Hearing Committee Number Four concluded that respondent violated DR 1-102(A)(5) (conduct prejudicial to the administration of Justice); DR 6-101(A)(3) (neglect of a legal matter); and DR 7-101(A)(1) (intentional failure to seek client's lawful objectives). Neither respondent nor Bar Counsel contested these findings, and the Board adopted them.
The final matter heard by Hearing Committee Number Four involved respondent's representation of a defendant in a civil action in the Superior Court. Respondent failed to respond to the plaintiff's motion for summary judgment, and the motion was granted as unopposed. Respondent also failed to inform the client that the plaintiff had noted her deposition. Plaintiff's motion for sanctions against the client for failure to appear at the deposition was dismissed as moot because summary judgment had been granted. The Committee found that respondent's conduct in this case violated DR 6-101(A)(3) (neglect of a legal matter) and DR 7-101(A)(1) (intentional failure to seek client's lawful objectives). The Board also adopted these uncontested Conclusions.
Hearing Committee Number Six heard a complaint involving respondent's representation of a client in a domestic relations case. The client and her husband were residents of Virginia in April 1982 when she retained respondent at his office in Arlington, Virginia. Although respondent was not a member of the Virginia Bar and had been subject to actions by the Virginia authorities concerning practice there without a license, respondent failed to inform his client that he was not licensed to practice in Virginia. Respondent's stationery had the Virginia address, and the client thought he was licensed to practice there. Respondent filed his client's action for custody, support and maintenance in the District where he succeeded in overcoming jurisdictional challenges and obtained a $2000 per month support award in February 1984. In the meantime, the client's husband obtained in Virginia an order for temporary visitation rights after respondent's client, consistent with respondent's advice, appeared without counsel. A second hearing on visitation was continued because respondent had a family emergency. Respondent prepared his client and her children for a third scheduled hearing on visitation; however, on the morning of the hearing, respondent told the client that it was not necessary for her to appear. The Virginia court entered an order granting the client's husband visitation rights which respondent's client had sought to prevent. *fn2
In March 1984, the husband filed for divorce in Virginia. Respondent's client did not appear in the action based on respondent's advice that she could ignore the suit because the District action took "precedence." The Virginia court granted the husband a divorce decree which did not provide for child support, spousal support or property division. Thus, the client's right to spousal support was foreclosed permanently. The client first learned of the divorce when she received notice of a partition action for the sale of her home. Again, respondent advised his client to ignore the suit. The client was notified by the Virginia authorities that respondent was not licensed to practice in Virginia. She retained other counsel and arranged a settlement which allowed her to purchase her husband's interest in the home and to receive $100 per week in child support. Evidence was offered that in the fall of 1982, the attorney for the client's husband had made a settlement offer to respondent under the terms of which the husband would pay respondent's client $2000 per month and transfer the marital home to her. Respondent failed to convey the offer, which was later withdrawn. *fn3 Respondent claims that he has no recollection of the offer.
Hearing Committee Number Six concluded that respondent violated the following disciplinary rules in connection with this domestic relations case: DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation); DR 6-101(A)(3) (neglect of a legal matter entrusted to him); DR 7-101(A)(1) (failure to seek client's lawful objectives); DR 7-101(A)(3) (intentionally prejudicing client during representation); and DR 2-101(A) and (B)(6) and DR 2-102 (both related to misleading client about his status as an attorney).
In summary, the two Hearing Committees found that respondent violated a total of twenty-seven disciplinary rules, and the Board found their findings and Conclusions to be supported by substantial evidence in the record. Hearing Committee Number Four recommended a four-year suspension for the violations it found, and Hearing Committee Number Six found warranted a three-year suspension with proof of fitness prior to reinstatement. However, Hearing Committee Six recommended disbarrment in view of the violations found by both Committees. Considering the number, duration and seriousness of the violations, the Board concluded that the appropriate sanction was disbarment, absent mitigating circumstances. Respondent does not dispute here the specific findings of misconduct found by the Hearing Committees and adopted by the Board nor that the serious misconduct in which he engaged warrants disbarment, absent mitigation.
We turn then to the principal issue raised in this case, whether respondent's addiction to drugs lawfully obtained is an appropriate factor to be considered in mitigation. Both Hearing Committees concluded that the mitigation principles set forth in Kersey, supra, 520 A.2d at 321, should be extended to cases involving an attorney's addiction to prescription drugs. Hearing Committee Number Six concluded, and the Board agreed, that addiction to prescription drugs lawfully obtained should be treated like alcoholism in considering sanctions. We agree.
In holding in Kersey, supra, that alcoholism is a mitigating factor in determining discipline, this court recognized the severe effects of alcoholism on human physiology, behavior and judgment as shown by scientific and other pertinent information. Id. at 526. Likewise, the evidence before the Hearing Committees in this case demonstrated that similar symptoms are experienced by persons addicted to drugs. Three medical experts testified that drugs have an effect on the brain similar to alcohol. Dr. Kestutis J. Pauliukonis, a medical doctor specializing in evaluation and treatment of addicts, testified that use of mood altering drugs over time can interfere with the physical functioning of the brain and cause memory lapses, impaired judgment and irrational thinking. He also testified that drug addiction, like alcoholism, seems to be affected by genetic history. Dr. Rodney Burbach, a psychiatrist specializing in alcoholism and drug abuse, provided similar testimony. He also explained that persons like respondent, suffering an addictive disease, can be disorganized and experience memory loss, apathy, paranoia, depression and anxiety. Bar Counsel's expert witness, Dr. Thomas Goldman, a psychiatrist, identified similar effects on persons addicted to drugs. He testified that amphetamines can result in paranoia psychosis. A ...