Not asleep on the job? Lawyer's sleep apnea claim rejected

Not asleep on the job? Lawyer’s sleep apnea claim rejected

Associated Press

CONCORD, N.H. (AP) — A lawyer who blamed his professional misconduct on a sleep disorder was appropriately punished for lying to a client and charging her for work he never did, the state Supreme Court ruled.

Attorney Joshua Mesmer appealed to the high court after an attorney disciplinary committee recommended that he be suspended for three years. According to the committee, Mesmer represented the owner of a tire company in a dispute over money it owed another company, but repeatedly lied to her about filing paperwork on her behalf.

“Throughout this period, the client sent the respondent near-daily messages seeking updates on the case, and stating that the case was causing her significant stress and anxiety,” the court wrote in its Feb. 21 ruling. “The respondent often did not reply to those messages. When he did, he never told the client the truth: that he had filed no pleadings , and thus nothing was pending before the court.”

Mesmer argued that his severe sleep apnea rendered him incapable of “knowingly” committing the violations, and that the illness — which is marked by interrupted breathing during sleep — should have been considered a significant mitigating factor in determining his punishment. But the court agreed with the professional conduct committee, which found that he acted knowingly, and at times, intentionally.

The court said given that Mesmer violated duties to his client, the public, the legal system and the legal profession, disbarment was an appropriate baseline sanction. Lowering that to a three-year suspension was appropriate, it said, because he had no prior disciplinary record and cooperated with the investigation. It considered his sleep apnea a mitigating “personal problem” but not a disability, in part because Mesmer’s expert witness called the disorder mild, not severe.

“Sleep apnea did not cause the respondent’s most serious misconduct: his dishonesty to his client and the court,” the justices wrote.

Mesmer’s attorney declined to comment on the ruling Wednesday.




Associated Press
Published: 3/3/2020 4:22:23 PM


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