Monthly Archives: May 2019

Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 2

Sleep debt – especially when coupled with extreme stress and mental disorders – can result in lawyer misconduct and ethics violations. Sleep deprivation impairs your cognitive abilities, energy level, mood and mental health. Thus, left unchecked, it is bound to have ripple effects on your work, life and overall performance. As such, in certain situations, it may be considered a mitigating factor in attorney disciplinary matters.

What is the Role of Sleep Debt in Lawyer Misconduct and Disciplinary Action?

The Minnesota Supreme Court has stated the purpose of attorney discipline 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.”

The court reviews three factors when determining the appropriate sanction: 1) the nature of the misconduct; 2) the cumulative weight of the disciplinary violations; and 3) the harm to the public, the legal profession, and the administration of justice. The court considers the facts of each case, including aggravating and mitigating circumstances, and uses similar cases as guidance.

In March 2018, the Minnesota Supreme Court issued a decision, In Re: Petition for Disciplinary Action Against Adam William Klotz, in which sleep deprivation was considered a mitigating factor. The Director of the Office of Lawyers Professional sought disbarment due to misconduct involving lying to the Director, not cooperating with the Director’s investigation, creating a false and misleading document, misappropriating client funds, and neglecting and lying to clients. The court agreed with the referee’s recommendation to impose indefinite suspension with no right to petition for reinstatement for 18 months.

The Director disputed the referee’s finding that the multiple stressors in Klotz’s life were a mitigating factor. The court noted, “We have recognized that extreme or extraordinary stress can be a mitigating factor.” Even if there is no proof that turmoil in the attorney’s life caused the misconduct, it may still be considered a mitigating factor.

The Director argued that the stress Klotz faced was not sufficiently extreme or extraordinary to mitigate misconduct. The court responded as follows:

But we have never examined whether particular stressors in an attorney’s life were objectively so extreme or extraordinary as to warrant mitigation. In prior cases, we have examined the particular facts and circumstances facing each attorney and whether the record showed that those stressors constituted extraordinary stress for that attorney. To create the legal threshold the Director requests would impose an objective standard onto what is an inherently subjective matter. Accordingly, we decline the Director’s invitation to set a legal threshold for the types of stress eligible for mitigation. We instead look to the record for factual support of any claims of mitigation due to extreme stress.

The court found:

Here, the record establishes that, after his child was born, the stress that Klotz experienced increased by a significant amount. The referee found that Klotz suffered stress related to his son’s sleep problems, suffered substantial sleep deprivation, and experienced stress related to caring for his son while his wife worked long hours. The referee found that the stress Klotz experienced was “among the causes of his inability to manage his own practice and the ethical violations that resulted,” and “compound[ed] and exacerbate[d] respondent’s mismanagement of his practice.” Because evidence in the record supports this finding, the referee’s conclusion that extreme stress was a mitigating factor was not clear error.

Sleep problems have been rejected as a mitigating factor in other cases. For example, in an earlier 2003 case, In Re Petition for Disciplinary Action against Alan J. Albrecht, the Minnesota Supreme Court discussed sleep apnea in determining appropriate attorney discipline. The court stated:

We have held that when a mental or physical disability is put forward as a mitigating factor the attorney must show by clear and convincing evidence that he or she has the disability, the disability caused the misconduct, the attorney is undergoing treatment for the disability and making progress in recovery, the recovery has halted the misconduct, and the misconduct is not likely to reoccur.  In re Merlin, 572 N.W.2d 737, 741 (Minn. 1998).

The court agreed that sleep apnea could lead to attorney misconduct:

Here, the referee relied on the testimony of Dr. Theodore M. Berman to conclude that Albrecht’s sleep apnea mitigated his misconduct.  Dr. Berman testified that Albrecht had severe sleep apnea, symptoms of which include daytime hypersomnia, impairment of memory and attention to detail, and lack of concentration.  Dr. Berman further testified that the allegations of misconduct by Albrecht, such as failing to follow through and failing to return phone calls, are consistent with the effects of sleep apnea.  There was also evidence presented at the hearing that, at the time of the hearing, Albrecht was being treated for sleep apnea.  Thus, there was evidence before the referee that would permit the finding that Albrecht suffers from sleep apnea, that the symptoms of sleep apnea could result in Albrecht missing dates, failing to return calls, and sleepiness during the day, and that Albrecht was undergoing treatment for the sleep apnea at the time of the hearing

Nevertheless, the court concluded:

Other than Albrecht’s own testimony, however, there is no evidence in the record to support a finding that Albrecht was making progress in his recovery from sleep apnea.  Further, there is no evidence that the recovery has halted the misconduct or that the misconduct is unlikely to recur.  Because there is no evidence that would support such findings, we conclude that the referee’s findings and conclusions that Albrecht’s sleep apnea is a mitigating circumstance are clearly erroneous.

Sleep apnea has been discussed in attorney disciplinary matters in other jurisdictions. For example, in March 2019, the New Hampshire Supreme Court issued a decision in which the Professional Conduct Committee recommended a three-year suspension, with 18 months stayed, for attorney Joshua Mesmer, who claimed sleep apnea caused his inaction on client matters and contributed to his misrepresentations.

The Committee pointed out that Mesmer lied to his clients about the work he was not doing, falsely attributed unfavorable outcomes to court corruption, overbilled his clients, and then aggressively pursued payment. The Committee noted, “Though Mr. Mesmer was inattentive to many matters in this litigation, he remembered to bill his clients, and he remembered to make efforts to collect money from them that he had not earned.”

In another case, Canadian lawyer Vassilios Apostolopoulos — who was disbarred in 2002 and reinstated by the Law Society of Upper Canada 10 years later — blamed obstructive sleep apnea as the cause of his mood disorder, which affected his cognitive abilities. He was misdiagnosed and treated wrongly for clinical depression.

When the treatment for depression and undiagnosed sleep apnea took its toll, he committed two violations: neglecting to file proper documents in a mortgage case and misappropriating a large sum of client funds. Following his disbarment, he was eventually diagnosed with sleep apnea and began proper treatment. This allowed him to get reinstated as a licensed lawyer.

Avoid Sleep Debt or Take Protective Measures While You Pay it Down

When you are sleep deprived, you are more likely to make mistakes, overlook key details, and fail to recall information. Lack of sleep also prevents you from learning new things, making sound judgments, prioritizing what needs to be done, and engaging in thoughtful decision-making.

Instead of relying on sleep debt as a justification for ethics violations or a mitigating factor for disciplinary action, you need to avoid it in the first place. Tips for getting good sleep include: soak in sunlight during the day; avoid screen time on computers, smartphones, and television at least 90 minutes before you go to bed; reduce your caffeine intake; have a consistent bedtime, preferably between 9 pm and 11 pm; create a nightly routine such as sitting quietly, meditating, doing restorative yoga, or reading light fiction before you go to bed.

While you are paying down your sleep debt, you need to take protective measures against its effects, such as fatigue, impaired stress response, and slower executive functioning.

First, get the professional support you need, whether it’s seeing a therapist or consulting a sleep disorder specialist. You may also contact Lawyers Concerned for Lawyers (LCL), which provides a free, confidential Lawyers Assistance Program for Minnesota lawyers, judges, law students and their immediate family members. This program offers help to those affected by alcohol, drugs and other addictions; depression, anxiety and other mental illnesses; stress and other life-related problems.

Second, develop work-related habits and practices that will help steer you away from ethics traps. When you have sleep debt, it’s especially critical to take detailed meeting notes; document communications in writing; maintain and refer to up-to-date filing checklists; double check or triple check your work; have an accountability partner to point out your blind spots; refuse cases with strict and aggressive timelines for which you lack the bandwidth; and focus on areas where you are highly proficient and knowledgeable, rather than venture into new areas with steep learning curves.

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For more information on what creates Sleep Debt and its effects, read the related article, Sleep Debt: A Cause of (and a Potential Mitigating Factor) for Lawyer Misconduct – Part 1.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 1

On the list of essential habits to practice self-care, cultivate well-being and sustain peak performance, good sleep is at the top. But sleep deprivation is common among lawyers facing heavy caseloads, long work hours, pressing deadlines, and high rates of alcohol use, drug addiction and mental disorders. Lack of sleep impairs your focus, memory, decision-making, and judgment, which are necessary to practice law effectively and ethically.

While there are many factors contributing to lawyer misconduct, there is no doubt that sleep debt makes you tired and less capable of meeting the demands of the profession. When you are sleep deprived, it is much harder to think creatively, solve problems, make steady progress on client matters, and communicate effectively as the rules of professional responsibility require.

What is Good Sleep?

In a 2017 study titled Short- and long-term health consequences of sleep disruption and published in the Nature and Science of Sleep journal, sleep is defined as a biologic process necessary for brain health and the functioning of immune, hormonal and cardiovascular systems in the body.

The American Academy of Sleep Medicine and Sleep Research Society jointly recommend at least 7 hours of sleep per night for adults. Besides adequate duration, sleep also has to be of good quality. This means you sleep for most of the time while in bed (at least 85% of the total time), fall asleep in 30 minutes or less, wake up no more than once per night, and drift back to sleep within 20 minutes if you do wake up, according to a report in Sleep Health.

What is Sleep Debt?

The American Sleep Association defines sleep debt as the cumulative effect of a person not having sufficient sleep, either through total sleep deprivation (when you are kept awake for a minimum of 24 hours) or partial sleep deprivation (when you have limited sleep for several days or weeks).

Long-term sleep debt is difficult to repay and the negative effects are persistent. One 2013 study in the American Journal of Physiology found that extended recovery sleep over the weekend reverses the impact of one work week of mild sleep restriction on daytime sleepiness and fatigue, but does not correct performance deficits. 

What Creates Sleep Debt?

Sleep deprivation and disturbances stem from multiple factors, including:

Lifestyle, e.g. consuming too much caffeine, alcohol use, drug abuse, jet lag

Environmental, e.g. excessive noise, excessive light

Psychosocial, e.g. anxiety, worry and rumination; parents of young children; caregivers to a family member with a serious illness

Sleep disorder, e.g. insomnia (difficulty falling or staying asleep), obstructive sleep apnea (disordered breathing that causes multiple awakenings), restless legs syndrome and other movement syndromes (unpleasant sensations that prompt night fidgeting), narcolepsy (extreme sleepiness or falling asleep suddenly during the day)

Medical conditions, e.g. pain, kidney disease, diabetes, neurodegenerative diseases, psychiatric disorders, use of certain medications

There is also a widespread fallacy that lawyers must work long hours for greater achievement, better results, and higher productivity. Getting good sleep is viewed as a luxury, instead of a necessity.

What are the Effects of Sleep Debt?

A 2016 study titled The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys and published in the Journal of Addiction Medicine, reported that among the 12,825 lawyers surveyed, 28%, 19%, and 23% experienced symptoms of depression, anxiety, and stress, respectively.

Sleep Debt Affects Your Well-Being

Funded by the American Bar Association Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation, the study helped to trigger a Call to Action for Lawyer Well-Being from the Minnesota Supreme Court and create a National Task Force on Lawyer Well-Being comprised of a consortium of organizations such as the American Bar Association (ABA).

Sleep deprivation is cited as one of the major problems lawyers face. Lack of sleep reduces your overall health and wellness, lowers your energy level, and interferes with coordination, agility, and endurance. As Robin M. Wolpert, Chair of the Lawyers Professional Responsibility Board, notes in her March 2019 Minnesota Lawyer article, “The National Task Force Report’s recommendations could be strengthened by prescribing sleep.”

Sleep Debt Affects Your Cognitive Abilities

The normal sleep cycle is comprised of four different stages: 1, 2, 3 of Non-REM (non-rapid-eye-movement) sleep, followed by REM (rapid-eye-movement) sleep. A complete cycle takes about 90 to 120 minutes. Non-REM sleep (which includes deep sleep) is critical for memory formation, and REM sleep (dream state) boosts creativity and problem solving skills.

Sleep deprivation makes you susceptible to lawyer misconduct because it compromises your cognitive skills and disrupts your brain function at a cellular level. In a 2017 study, researchers at the University of California – Los Angeles Health Sciences found that sleep deprivation disrupts brain cells’ ability to communicate with each other, leading to mental lapses that affect memory and visual perception.

A 2007 study, published in the Neuropsychiatric Disease and Treatment journal, states that total sleep deprivation impairs attention and working memory, as well as long-term memory and decision-making. It adds that partial sleep deprivation affects attention, especially vigilance. This makes it more challenging to focus and concentrate on tasks for steady progress and successful completion.

When you lack sleep, your brain does not get to fully remove dead cells, flush out toxins and complete other housekeeping actions through the glymphatic system (functional waste clearance pathway for the vertebrate central nervous system). Sleep enables you to remove waste and make room for new learning, growth and development.

Acquiring and recalling memories take place when you’re awake. But memory consolidation – which allows you to store new memories for future retrieval – occurs when you’re asleep. Memory consolidation frees up space in the brain to acquire new memories and learn new things the next day.

Sleep debt is often associated with dementia, Alzheimer’s disease, and general cognitive decline. It not only makes it harder to acquire and store memories, but also more challenging to recall memories you already made, such as the password for an account.

The prefrontal cortex, which is the cerebral cortex covering the front part of the frontal lobe of the brain, is especially vulnerable to sleep loss. This region of the brain is responsible for executive functions, such as analyzing complex thoughts, processing information, determining right from wrong, making decisions, predicting outcomes, evaluating risks, understanding consequences, prioritizing and sequences actions, exerting control, and moderating social behavior.

In addition, when sleep is disrupted, you miss out on REM sleep, which is important for creative thinking, staying motivated, and generating ideas. During this stage of sleep, your brain makes important neural connections that are needed for mental health and overall well-being.

Sleep Debt Affects Your Mood

Sleep loss is also associated with changes in levels of hormones, such as serotonin, dopamine, and cortisol.

Serotonin is linked with well-being and happiness. It helps regulate the body’s sleep-wake cycles, increases wakefulness in the morning, and keeps moods stable. Low serotonin levels is associated with depression.

Dopamine is also associated with well-being and happiness. But instead of regulating mood, it makes you feel good. Dopamine drives behavior towards things (e.g. drugs) that will activate the pleasure and reward centers of the brain.

Cortisol regulates a wide range of processes in the body, such as blood sugar levels, metabolism and the immune system. It influences memory formation and is critical in helping the body respond to stress. Excessive cortisol levels contribute to mood swings, anxiety and depression.

Sleep Debt Affects Your Mental Health

Sleep, mood and mental states are closely interrelated and often overlap. Anxiety and extreme stress, for example, make it hard to fall asleep or stay asleep. In turn, sleep problems impair your mental health.

A Harvard Health Publishing article, titled Sleep and mental health, notes that studies reveal 65% to 90% of adult patients with major depression experience some kind of sleep problem, such as insomnia and obstructive sleep apnea. It states that sleep problems increase the risk of developing depression and make it less likely to respond to treatment.

Studies further report that 69% to 99% of patients experience insomnia or report less need for sleep during a manic episode of bipolar disorder. Meanwhile, in bipolar depression, 23% to 78% of patients sleep excessively (hypersomnia), while others may experience insomnia or restless sleep. Lack of sleep can trigger mania, destabilize mood and contribute to relapse.

In addition, sleep problems affect more than 50% of adult patients with generalized anxiety disorder, are prevalent in those with post-traumatic stress disorder (PTSD), and may occur in panic disorder, obsessive-compulsive disorder, and phobias. Insomnia can interfere with recovery or exacerbate the symptoms of anxiety disorders.

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For more information on the Role of Sleep Debt in Lawyer Misconduct and Disciplinary Action, read the related article, Sleep Debt: A Cause of (and a Potential Mitigating Factor for) Lawyer Misconduct – Part 2.

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

On appeal, a USCIS Field Office reconsidered and reversed its denial of our U.S. citizen client’s Form I-130 petition for her spouse under INA 204(c), which is commonly known as the marriage fraud bar. The Board of Immigration Appeals (BIA) has authority to review such decisions, but USCIS chose to vacate the section 204(c) bar on its own and approve the petition without a BIA order. In addition, the spouse was granted a green card based on his concurrently filed Form I-485 application for permanent resident status. These favorable decisions were made within three months of our filing the Notice of Appeal and within two months of our submitting the legal memorandum to support the appeal.

Beneficiary’s File is Flagged Due to USCIS’ Denial of Prior I-130 Petition by Previous U.S. Citizen Spouse

Section 204(c) of the Immigration & Nationality Act states that no petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, through a sham marriage, i.e. a marriage determined by USCIS to have been entered into for the purpose of evading U.S. immigration laws.

In our clients’ case, the beneficiary was previously married to another U.S. citizen who filed a prior I-130 petition for him. They completed two different interviews with USCIS over a two-year period. They were separated and asked various questions about their courtship and marriage, from which USCIS listed a total of five discrepancies between their answers.

USCIS investigators also went to their shared residence when neither of them was present. The petitioner’s mother – who lived with them – was at the home when the officers arrived. She confirmed the couple resided there with her, but the officers found very few personal items belonging to the beneficiary. Through further investigations, USCIS discovered the beneficiary was the lessee of a separate apartment and determined that he lived there instead of with the petitioner.

With the help of prior counsel, the petitioner and beneficiary submitted a Response to the Notice of Intent to Deny the I-130 petition, in which they described the reasons for the discrepancies at the interview, confirmed they lived together, and explained the separate apartment under the beneficiary’s name was being subleased to another person.

Three months after receiving the Response to the NOID, USCIS denied the I-130 petition based on the discrepancies at the interviews and their investigations from which they determined the beneficiary did not live with the petitioner. The evidence filed with the Response was disregarded. The decision was not appealed because the marriage fell apart and the parties ultimately divorced.

Beneficiary Faces INA 204(c)/Marriage Fraud Bar in Subsequent I-130 Petition by Second U.S. Citizen Spouse

Following his divorce from his first U.S. citizen spouse, the beneficiary entered into marriage to another U.S. citizen, who filed an I-130 petition for him about 18 months after the prior petition was denied. After interviewing the couple, USCIS issued a Notice of Intent to Deny the petition a year later.

In the Notice of Intent to Deny, USCIS acknowledged the couple’s marriage is bona fide and cited to no discrepancies between their testimonies at the interview. The Service, however, pointed out the beneficiary is ineligible for an I-130 approval under INA 204(c), in that his prior marriage was found to be a sham.

Petitioner Receives Guidance on Responding to Notice of Intent to Deny through Consultation

The petitioner contacted our firm, Dyan Williams Law, for help just four days before the Response to Notice of Intent to Deny was due to USCIS. Due to the time constraints and pre-existing commitments, we declined to represent her in the Response, but agreed to provide her with a consultation.

To prepare for the consultation, I reviewed the Notice of Intent to Deny the petition, the earlier Response to Notice of Intent to Deny that was filed by the prior U.S. citizen spouse, and other key items. During our telephone call, I gave the petitioner a list of documents and information to gather and present in her Response. I also summarized applicable case law and essential legal arguments she should mention in her Response.

Using my recommendations, the petitioner filed a timely and persuasive Response, which included a notarized declaration from the beneficiary’s ex-spouse confirming they had a good-faith marriage.

Representation on Appeal Leads to Reversal of INA 204(c) Finding and Approval of I-130 and I-485

A week after receiving the Response to Notice of Intent to Deny, USCIS issued a decision denying the I-130 petition under INA 204(c). The Service found there was no credible evidence to substantiate the claim of a bona fide marriage between the beneficiary and his prior U.S. citizen spouse.

The petitioner contacted me soon after she received the decision. This time, I accepted her case for representation and agreed to prepare and file the appeal on her behalf.

On appeal, I argued it was not the petitioner’s burden to prove her spouse’s prior marriage was bona fide. Rather, the Service has the burden to show by “substantial and probative evidence” that the beneficiary previously attempted or conspired to enter into a sham marriage for U.S. immigration purposes. I cited to applicable law, the credible explanations for the discrepancies at the interviews, and material evidence demonstrating the beneficiary and his prior spouse lived together and shared a real marriage before it ended in divorce. I noted the Service made a reversible error by applying the harsh statute – INA 204(c) – to deny the petition.

About two months after the legal memorandum to support the appeal was submitted, the petitioner informed me that USCIS approved the I-130 petition. She and her spouse also received notice that the concurrently filed I-485 application was reopened by USCIS, on its own initiative.

A couple weeks later, the beneficiary received his 10-year green card in the mail. He is now a permanent resident of the United States who may eventually file for naturalization (citizenship). After more than seven years of seeking to obtain permanent residence – first through a failed marriage and then via his current marriage – he finally achieved true success in his immigration journey with our counsel.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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