Not long ago, while “talking shop” with several other lawyers, the conversation turned to a colleague’s rather unusual, even foolhardy, strategic choices about how to proceed in a case.
One of the other attorneys proclaimed our colleague’s plan as “downright insane,” and was surprised when I responded that just because he was crazy didn’t mean he couldn’t practice law. After all, I said, there are legally insane lawyers and even judges practicing today.
Sound surprising? Then consider this: last November, the Texas 3rd Court of Appeals received a brief from the attorney for Randy Gourley, appealing charges of theft against Gourley for allegedly trying to sell prescription animal medications online.
The brief came from Carolyn Barnes, duly licensed to practice law in Texas since 1984. But Barnes’ address was not quite what you’d expect for a member of the bar—Unit 3B of Kerrville State Hospital, which just happens to be an inpatient psychiatric facility.
Barnes has been there since 2011, when she was found mentally incompetent to stand trial on criminal charges of aggravated assault with a deadly weapon.
It seems that Barnes is accused of firing a gun at a Census worker outside her home in 2010; the lawyer says the incident never happened, while the Census worker disagrees.
At the Kerrville facility, Barnes has access to a cellphone, a fax machine, the U.S. Postal Service and the Internet. She even completed continuing legal education course work online in order to make her law license current.
The Court of Appeals sent Barnes’ filing on behalf of Gourley back to a Williamson County court-at-law, stating “We question whether Barnes, having been found incompetent to stand trial in her own matter, may represent Gourley in this separate matter.”
Barnes, of course, asserts that the fact that she’s still licensed to practice law should indicate that she’s competent to stand trial in her own case and should be released from her involuntary commitment to Kerrville.
After all, she points out, being “competent” means understanding the charges against her and being able to participate meaningfully in her own defense; if she’s licensed to represent clients in Texas courts, Barnes says, “then I’m fully competent to stand trial.”
The Williamson County D.A.’s office, on the other hand, maintains that Barnes—by virtue of her involuntary commitment and being adjudged incompetent to stand trial in her own case—has no business representing clients. It has asked State Bar of Texas regulators to suspend Barnes’ license.
The case raises interesting questions, not only about how the State Bar polices the legal profession to protect the public from lawyers who have a mental disability or illness that keeps them from practicing law, but also about the nature of mental illness itself. Under State Bar disciplinary rules, an attorney can lose his or her license due to “any physical, mental, or emotional condition” that prevents him or her from practicing law.
After receiving and investigating a complaint (which is confidential), the State Bar refers the matter to the Board of Disciplinary Appeals (BODA), which is a group of 12 lawyers appointed by the Supreme Court of Texas. BODA, in turn, directs the case to an ad hoc District Disciplinary Committee (composed of a lawyer, a doctor and a public—i.e., non-lawyer—member).
But there are no specific standards that define just what constitutes a “disability” that would warrant prohibiting an attorney from practicing law.
The committee may rely on testimony from doctors or other healthcare providers, as well as medical records that are introduced as evidence. And, if the committee determines that the lawyer does have a disability that prevents him from practicing law, it sends the case back to BODA for license suspension.
Lawyers who want to return to practicing law after a disability finding must persuade BODA that they are better (such as when an attorney with a drug or alcohol dependency completes a stint in rehab).
At least the State Bar of Texas is concerned with having measures in place to protect the public in the event of a lawyer operating under a disability. In Chicago, they elect the mentally ill to judicial office, while the Department of Justice is actively recruiting for lawyers with “psychiatric disabilities.”
Last November, Cook County, Ill., voters re-elected Judge Cynthia Brim to her $182,000-a year post as a Cook County Circuit Court judge, despite the fact that Judge Brim (who suffers from bipolar disorder) had previously been declared “legally insane” by a court-appointed psychiatrist.
Why was there a court-appointed psychiatrist, you ask? Judge Brim, at the time of her re-election, was a defendant in a battery case. Yet this fact, complaints over a period of years over her “bizarre behavior,” or the Cook County Bar Association rating of her as “not qualified,” didn’t prevent the Cook County Democratic Party from backing her or the voters for voting for her with 63.5 percent of the vote.
And, in a classic case of your tax dollars at work, the Justice Department—in what can only be described as “political correctness” run amok—issued a directive in 2012 to recruit new employees (including lawyers) with “psychiatric disabilities” and “severe intellectual disabilities . . . .”
This wasn’t merely a ban on discriminating against applicants with such disabilities. On May 31, 2012, Assistant Attorney General Tom Perez issued a directive to affirmatively recruit those with such “targeted disabilities.”
Carolyn Barnes, the U.S. government may have a job for you.