Lawyers: Don't Blame Failure on Sleep Apnea

By George Khoury, Esq. on April 04, 2019

For most lawyers, the workload can get to be overwhelming. It's not unusual to fall behind from time to time and lose some (or a lot of) sleep.

However, when you do fall behind, lying to clients, billing them for work you never did, then blaming an undiagnosed and questionably related medical condition probably isn't the best way to get yourself out of trouble, especially if you've already blown a deadline. And if you think that no attorney in their right mind would try such hijinks and/or shenanigans, then aggressively pursue payment from those same clients, then read on below.

Asleep at the Litigation

New Hampshire attorney Joshua Mesmer claimed that he suffered from undiagnosed sleep apnea, which made him "unable to focus, multitask and exercise sound judgment." The attorney's medical expert explained that sleep apnea can cause forgetfulness and productivity problems.

But, unfortunately for Mesmer, the state's disciplinary committee didn't believe that Mesmer's sleep apnea was to blame for the lying, and in the end, suspended the lawyer for three years, with half the suspension stayed. Curiously though, the committee did note that his sleep apnea was a real undiagnosed medical condition that he suffered from, and that it was considered a mitigating circumstance in Mesmer's favor, helping him to avoid full disbarment.

Firm Responsibility

The underlying case involved one of Mesmer's clients that had stopped making payments towards a judgment's payment plan. During the payment plan, the clients' company became insolvent and couldn't pay, prompting a contempt filing in the court. Mesmer repeatedly assured the client that he was taking care of it, but he failed to do so. Making matters worse for Mesmer, even after his failure, the disciplinary committee found that he had aggressively pursued legal fees for work he never completed.

Although Mesmer's firm did settle out the claim against it from the clients Mesmer failed, as well as imposed its own suspension of Mesmer, the disciplinary committee didn't think that doing so negated the need for discipline as Mesmer had argued. Mesmer's father, who is a founding member of Mesmer's firm, told the press that an appeal is planned.

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