Update (February 20, 2015): In the ethics matter, described below, the Minnesota Supreme Court has stepped in and increased the discipline meted out to Attorney Larry Severson, with two Minnesota Supreme Court justices dissenting (Anderson, J., and Gildea, J.) The referee for the Board of Professional Responsibility petition for discipline had recommended a 90-day suspension. The Supreme Court jacked that up to one year.
There are some odd things about attorney discipline in Minnesota. “An attorney’s remorse can be a mitigating factor in considering the appropriate discipline.” And “[a]n attorney’s selfish motive may be an aggravating factor.” But “[t]he purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather to protect the public, safeguard the judicial system, and deter future misconduct by the disciplined attorney and other attorneys.” (see p. 15). I have a little trouble getting my head around the fact that “discipline” is not intended to “punish.” I have a hard time understanding how “discipline” that is not intended to punish is made more severe if the lawyer shows insufficient remorse (or is less severe if the lawyer repents).
A great amount of intentional wrong-doing is the result of poor impulse control (“I have no idea what I could have been thinking….I can’t explain it…..I feel terrible that I did that…I had a substance abuse issue and was under great stress”). I can see how we might want to punish someone less if they respond to being caught like that rather than saying, “I did it and I am proud of it. I feel no shame. I am only sorry I got caught.” But if discipline is specifically untied to punishment, why wouldn’t the two wrong-doers, the penitent and the defiant, suffer the same penalty? The harm is presumably the same, right? And, in fact, if the primary goal is deterrence, we might worry more about recidivism from the penitent than the unapologetic for at least two reasons.
First, it’s pretty easy to feign penitence. So, probably hiding among the most apologetic lurk the most evil. Second, with the unapologetic, one can perhaps subject them to more monitoring or supervision, one might condition or limit their practice in one way or another in recognition of their self-declared ethical blind-spot(s). With the impulsive wrong-doer (or the weasel pretending to be one), on the other hand, it might be harder to figure out how to rein in the impulsivity (or deeper-seated dishonesty) that seems to take hold of them with bad results.
The majority of the Minnesota Supreme Court held:
Severson’s lack of remorse is troubling. Severson presented no evidence that he has any remorse, or even insight, into the harm he caused [a vulnerable client] or the profession by his multiple violations of the conflict of interest rules and multiple acts of dishonesty.
In the end, there are distinct issues: (1) Why shouldn’t attorney discipline be used to punish intentional wrong-doers? (2) Regardless, of Question 1, how much discipline is warranted for the wrong-doing of Attorney Larry Severson? The point of the Supreme Court dissent appears to me to be that the Minnesota Supreme Court should defer to the referee’s recommended discipline. The dissent also pointed out that the referee “noted that Severson’s actions were not ‘underhanded, malicious, or predatory,’ and that he acted in order to benefit a young woman who was like a daughter to him.”
As for question (1), I would suggest that the line, “The purpose of disciplinary sanctions for professional misconduct is not to punish the attorney, but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys,” derives from a 2005 Minnesota Supreme Court decision, which cites to two earlier Supreme Court cases for the proposition, but neither of them support or explain the riddle. And I think the proposition is wrong. I think that the purpose of discipline, in part, is to punish. Or at least I think it should be. Why not?
As for question (2), the majority opinion listed a handful of cases where similar wrong-doing met with similar discipline. In response, the dissent listed a handful of cases where worse misconduct met with milder penalties and concluded, “Given the unique facts in this record, however, I would suspend Severson from the practice of law for 3 months as recommended by the referee.”
On Question (2), there is no right (or wrong) answer, it seems to me. As with criminal sentencing, there is a continuum of reasonable discipline. We can agree on the extremes (too harsh, too lenient) but we will undoubtedly have to agree to disagree on the range reasonableness in between…
Original post (August 13, 2013) (under headline “For Triskaidekaphobes (it is August 13): Ruminating on The Anatomy of Evil”): In 1925, T.S. Eliot concluded his poem, The Hollow Men, with the often quoted lines, “This is the way the world ends/Not with a bang but a whimper.” Eliot had suffered from lung-related health problems. A heavy-smoker, he died of emphysema in London in 1965. In other words, Eliot’s prediction about the end of the world remains to be seen but it seems the prediction was dead on as it concerned the end of Eliot’s own worldly existence.
My understanding of Eliot’s idea is that the inherent egocentricity of people dramatizes, aggrandizes, polarizes, and distorts our experience.
Too often, we do the same thing when we think of good and evil. We think of evil in a way that it actually does not exist very often if ever — 100% pure, uncut…But contrast Minnesota lawyer, Larry Severson, and the allegations against him in the Board of Professional Responsibility’s Petition to the Minnesota Supreme Court for discipline.
The challenges faced by a little girl named D___ born in Minnesota in 1978 boggle the mind. Her parents were killed in a car accident when she was just three months old. Relatives adopted her, then divorced when Dawn was 10 years old. Two years later, Dawn’s adoptive father died. Her adoptive mother remarried. D___ did not get on well with her “new” adoptive family. She moved in with the Severson family to finish high school. At the age of seniority, D___ took possession of her $500,000+ inheritance and entrusted it to the care of attorney Severson.
D___’s “second mother,” her adoptive mother, died in 2000 when D___ was 22. She dropped out of an East Coast college to help with her adoptive mother’s terminal illness.
All the while, Severson is alleged to have used D___’s inheritance to bank-roll his commercial endeavors, various businesses.
It seems that Severson might have rationalized this alleged conduct by reminding himself that many times over the years he helped D___ out without getting compensation. So, he might have explained to himself, I deserve this, I have a right to it. Also, he might have told himself that he was not stealing D___’s money, he was just transforming it from cash to an interest in a business and, ultimately, D___ would come out of this whole.
The expression, “the monotony of evil,” is attributed to French philosopher, Simone Weil, who died at the age of 34 in 1943 of self-starvation (that is, with a whimper and no bang). Assuming the allegations made against Severson are true, I would suggest that this is the true portrait of evil. It is not dramatic. It is not bound to be made into a movie. It is dull. It is gradual. It is a fog of immorality that rolls inland off still waters to envelop well-meaning people to where they cannot see their hands in front of their faces and they do not even see that they cannot see.