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.
Photo by: aitoff
