Attorneys and judges in New York: until you are caught, snort (cocaine)

This is the so-called "diversion rule" of the NYS Supreme Court Appellate Division 4th Judicial Department.  It says:

"When an attorney who is the subject of a disciplinary investigation or proceeding raises in defense of the charges or as a mitigating factor alcohol or substance abuse, or, upon the recommendation of counsel to the Attorney Grievance Committee, the Court may stay the matter under investigation or the proceeding and direct that the attorney complete a monitoring program sponsored by an approved lawyers’ assistance program (22 NYCRR 1022.20 [d] [3] [a]).

Upon proof of successful completion of a Court-ordered monitoring program, the Court may dismiss the charges. In the event of failure to successfully complete such a program or the commission of additional misconduct during the pendency of the proceeding, the Court may rescind the order diverting the attorney to a monitoring program and reinstate the charges or matter under investigation (see 22 NYCRR 1022.20 [d] [3] [b])."

Now, when did a statement of, let's say, a criminal that he committed a crime because he was drunk or high prevented courts from finding him guilty?

Good luck trying to prove to the court that, since your client was drunk or high, it somehow negated his guilty state of mind.

It will, most  likely, be considered as an aggravating circumstance, not as a mitigating circumstance.

Not so with attorneys.

As soon as you say - in your defense, no less, or "in mitigation" of allegations of already adjudicated misconduct - that you committed attorney misconduct because you were drunk or high on illegal drugs, you get a chance to have the charges dismissed after you complete a "court-ordered monitoring program".

And remember - proceedings where you admitted that you were drunk or high, but which are dismissed because of the court-ordered monitoring program, never become public, so your clients will never know that you actually were drunk or high when handling their cases.

Is not that great?

Yet, I know of one court case where the NYS Supreme Court Appellate Division 3rd Judicial Department actually found, in a custody proceeding, that the father should lose custody because he used illegal drugs - cocaine.

Please, note that the Appellate Division 3rd Department which, similarly to the 4th Department, has a "rule of diversion" for attorneys who are drunk or high when handling their client's cases, considered that same factor against a father in a custody proceedings.

But the kicker in this case is that - guess what? - the father, David Rikard, who lost custody of his child  in this custody case because of the use of cocaine WAS AND STILL IS AN ATTORNEY!!!

So - do his clients know about his cocaine use?  Did he stop the cocaine use?  Does he still continue it while representing his clients?

Look at David Rikard's arguments to the court when he tested positive for cocaine in a court-ordered drug test:

"The father, on the other hand, never directly disputed his use of cocaine, but argued that he had not used drugs in the presence of the child."

So, David Rikard did not use cocaine in 2009-2011 in the presence of his child, but did he use cocaine while preparing for his court cases?  Do his clients whom he represent at that time know about Mr. Rikard's use of cocaine.

Time and again substance abuse is called a growing problem in the legal profession, see here.

New York State Lawyer Assistance Trust published a study about substance abuse recently which starts with the phrase "Lawyers work high stress jobs in a high stress world".

Tell me, whose jobs nowadays is not stressful?

But why only for attorneys being working for their clients under the influence of illegal drugs is a mitigating, not an aggravating factor?

Why it is an aggravating factor in a child neglect proceeding? Custody proceeding - see, again, Rikard v. Matson? Criminal proceeding - where the use of drugs and alcohol is a conscious choice and does not negate the state of mind (and good luck making that argument to the court)?

Of course, Attorney Rikard is untouchable by attorney discipline for a simple reason that he is a buddy of the former Vice-Chair of the NYS Commission for Judicial Conduct Stephen R. Coffey, who was still in office at the time Rikard v. Matson was decided on January 13, 2011.  

That is likely why the Appellate Division could, but did not refer David Rikard to be investigated and prosecuted for potential attorney misconduct.  

Who would dare touch Mr. Rikard?  What if Stephen Coffey would then investigate and prosecute the offending judges for hurting his buddy?  

So - nobody dared to investigate or discipline him for his potential drug use when representing his clients.

You know how this little "diversion program" in all 4 Departments came to be?

On the initiative of the former Chief Judge of the New York State Court of Appeals Judith Kaye:

Somehow the good judge Kaye's concerns resulted somehow in application of "diversionary" rules to attorney discipline proceedings, which are allegedly commenced for protection of the public, of clients, not of attorneys.

And yet, the public may not even be allowed to know that a certain attorney HAD a drug problem when he did something that hurt his clients.  Rehabilitation through undergoing a secret monitoring program under the secret monitoring of a secret court does not do the clients whose cases the attorney did while drunk or high any good, will it?

Once again - why for lawyers being committing misconduct while being high on illegal drugs is a mitigating factor while for everybody else the same behavior is an aggravating factor?

Because some politically connected lawyers and - God forbid - judges - may be "using" and conveniently created rules protecting themselves, under the guise of protecting the public?

Because, "to be part of the club", "to belong", you need to drink together?  Use together?

Why the fact that substance abuse is rampant in the legal profession must be used to protect not the clients from such attorneys, but attorneys from discipline for misconduct toward those clients?

So, as far as my case is concerned - I have no excuse.

When I was making motions to recuse a biased judge, I was not drunk or high.

What a pity.  That could have been a "mitigating factor" or a "defense". 

And the scariest part for the public is what the NYS Lawyers' Assistance Trust stated in yet another of its studies: 

What is scary is that not just statistics of attorneys seeking help is not available, but also nobody knows numbers of attorneys NOT seeking help and being drunk and high on illegal drugs while representing clients.

Do we need to now new rules mandating random "pee-in-a-cup" test for attorneys as a pre-requisite of practicing law?  Because otherwise you will never know if your attorney is drunk or high while representing you.

And guess what - attorney David Rikard is now - yahoo! - Judge David Rikard in the Prattsville Town Court, New York.

So, the question is, is he snorting on the bench, or off the bench when he is reading your pleadings?