Matter of a Member of the Bar: Poliquin ( 2016 )

IN THE SUPREME COURT OF TI~IE STATE OF DELAWAR.E
IN THE MA'I"I``ER OF A MEMBER §
OF THE BAR OF THE SUPREME § No. 129, 2016
COURT OF TI-[E STATE OF §
DELAWARE: § Board Case No. l12318-R
§
RONALD G. POLIQUIN, §
§
Petitioner. §
Submitted: March 29, 2016
Decided: April 5, 2016
Before HOLLAND, VAUGHN, and SEITZ, Justices.
0 R D E R
This 5"’ day of April 2016, it appears to the Court that:
(l) On August 9, 2012, this Court suspended the petitioner, Ronald G.
P0liquin, from the practice of law for a period of six months and one day.' On
February 21, 20l4, we denied Poliquin’s first petition for reinstatement.z He
filed his second petition for reinstatement on June 8, 20l5. The OfEce of
Disciplinary Counsel ("ODC”) filed a response in opposition to the petition for
reinstatement A panel of the Board on Professional Responsibility held a
hearing on the petition on November I0, 2015, and post-hearing briefing
concluded on January 15, 2016.
' in re Pah'qu:n,_ 49 A.sd 1 1 15 (1)¢1. 2012).
2 m re 1>011¢;11:»,'2014 WL 103432 (1)¢1. Feb. 21, 2014).
(2) The panel filed its Report and Recommendation with this Court on
March 15, 201 6. The panel found that Poliquin has met the standards for
reinstatement and recommends that he be reinstated subject to a two-year period
of probation with specific conditions attached to his probation. Neither the ODC
nor Poliquin has filed any objections to the panel’s Report and Recommendation.
(3) The Court has reviewed the Report and Recommendation carei``ully.
The Court has determined that the panel’s Report and Recommendation should
be adopted in its entirety.
NOW, 'I'I-]EREPORE, IT IS ORDER.ED the panel’s Report and
Recommendation is hereby ACCEPTED. Ronald G. Poliquin shall be reinstated,
effective immediateIy, as a member of the Bar of this Court subject to a two-year
period of probation with all of the conditions set forth in the attached Report.
BY TI-[E COURT:
perform appropriately as a lawyer than the testing already administered." The Panel is
unpersuaded by Dr. Mack’s testimony largely because of what it perceives is his lack of
objectivity and lack of consistency between his stated approach to evaluation and the approach
he actually took. By failing to give weight all of the information available through collateral
sources, Dr. Mack fails to follow his own protocol in developing his opinion about Respondent’s
fitness to practice. Specifically, he ignored the extensive and entirely unrebutted testimony of
witnesses about Respondent’s progress in resolving the areas of deiiciency that led to his
suspension (focus and integrity). Similarly, he ignored the battery of tests, in addition to the
WAIS lV test, administered by Dr. Hopwood.
Discussion
The Panel notes that reinstatement can occur in two conte)tts, suspension and disbarment. Under
Rule 22(a) lawyers suspended for more than six months have to apply for reinstatement, which
requires proof of rehabilitation and a final order of reinstatement by the Court. As was noted
above, since the Petitioner was suspended for more than six months, he has the burden of
establishing by clear and convincing evidence that he has met the criteria for reinstatement under
Rule 22(g). Rule 22(g) requires that the petitioner prove ( l) his professional rehabilitation,
including substantial rehabilitation from his drug problem; (2) his compliance with all applicable
disciplinary orders; (3) his fitness to practice; (4) his overall competence and awareness of recent
developments in the law; (5) that he has not engaged in professional misconduct in other
jurisdictions; (6) that he sincerely recognizes the wrongfulness and seriousness of his misconduct
on which his suspension was predicated; (7) that he has the requisite honesty and professional
integrity to resume the practice of law; and (8) that his resumption of practice will not be
detrimental to the administration of justice.
The ethical violations leading to Petitioner’s suspension from practice were violating deadlines
established by the Supreme Court, Superior Court and Family Court, failing to provide
competent representation, failing to act with reasonable diligence and promptness in several
situations and failing to act with appropriate candor to the Supreme Court.“ They were brought
about and exacerbated by his difficulty focusing and dealing with stress in a very hull practice
and his addictions. W'hile these were serious infractions and suspension was necessary to protect
the public from a pattem of conduct that caused actual and threatened hann to his clients and the
administration ofjustice, they were not of the nature to result in a longer suspension or even
disbarment.
Cases involving reinstatement proceedings cited by ODC in its brief involved petitions for
reinstatement from disbannent, where the underlying misconduct was serious misconduct such
as theft from clients. See, fn re Reed, 584 A.2d 1207 (Del. l990)(disbarred aiier conviction for
then following a series of other disciplinary actions), fn re Benuethum, 278 A.2d 831 (Del. l97l)
" rr., ar zsa-zss.
‘“ Paliqu\n l.
(disbarred as a result of being convicted of giving false testimony and fabricating evidence in his
criminal trial for williiil failure to tile tax retums) and In re Hawlci'ns, 87 A. 243 (Del.
l9l3)(disbarred after being convicted of embezzlement from a client) and cases on reinstatement
like !n re Clark, 406 A.Zd 28 (Del. 1979) (cited in Reed) (disbarred after diverting approximately
$l00,000 from his clients). The Panel finds In re Pankowski, Del.Supr., No. 503, 2013, Jacobs J.
(0ctober |3, 2014) more helpiiil in that it specifically addressed a similar situations to that
leading to Petitioner’s suspension, where the attomey had an alcohol addiction that contributed
to the behavior leading to his suspension.
With these distinctions in mind the Panel will review the criteria of Rule 22(g) in order.
I. Professional Reliabilitation.
To satisfy this element, Petitioner must establish that he has addressed both his drug problem and
the underlying cause of his performance issues. The evidence is uncontroverted that Petitioner
successfully completed his inpatient treatment for his addiction and has passed numerous random
drug tests. He also remains active in Narcotics Anonymous from the time of his inpatient
treatment to the present. lt is now 5 years since Petitioner contacted DE.LAP. lt is approximately
four and three-quarters years since he underwent inpatient treatment. He remains drug free. We
conclude that he has proven by clear and convincing evidence that he has his drug problem under
control.
In the prior order denying reinstatement, the Court adopted the Panel’s recommendation that
found that the Petitioner had failed to establish by clear and convincing evidence that his
performance issues had been addressed We commend ODC for pointing out to Petitioner that he
needs an objective basis to support his contention that these issues have been addressed and
recommending that he be retested alter beginning Strattera, in light of the results of the Oliver
evaluation. This does not mean that "rehabilitation" can only be shown by expert testimony and
psychological testing.
Under the specific circumstances of this matter, however, where Dr. Oliver‘s report raised
significant questions about whether the underlying issues that led to Petitioner‘s performance
issues had been resolved, it seems appropriate that Fetitioner sought and obtained the
professional evaluation by Dr. Hopwood. As fn re Clark, 406 A2d 28, at 30 (Del. l979) noted,
"although precedent from this and other jurisdictions should be weighed as guidelines of
discretion, each case must rise and fall on its own facts and circumstances."
In the hearing before this panel there was a signiiicant amount of evidence presented regarding
whether Petitioner has addressed his performance issues. Petitioner has taken extensive measures
to address the root causes of his performance issues. Not only did he take a number of corrective
actions to improve his organizational abilities and the DELAP sponsored workshops to combat
procrastination, but he continues to employ the techniques in his role as a law clerk. Multiple
lines of evidence support this finding
10
As discussed previously, upon advice of Ms. O’Brien, Petitioner obtained a prescription for
Strattera, a non-narcotic medication that is used to treat attentional issues. Petitioner then asked
Dr. Hopwood to evaluate him to detennine if testing and evaluation could provide an objective
basis to establish that he had addressed the attentional and performance issues. She interviewed
Petitione``r, reviewed relevant records and administered what she detennined were the appropriate
tests to evaluate whether he suffered from attentional issues that would prevent him from
functioning as an attorney. She specifically testified that the WAIS test was valid when given a
second time seven months later."° However, she also administered a number of other tests and
did not rely on that test exclusively. Dr. Mack challenged her opinion and methodology, stating
that she didn’t do enough to be able to reach the conclusions she did. Notably, however, he could
not state that the additional testing he suggested would provide any greater degree of certainty. In
addition, he appeared to ignore the significant body of evidence in the forrn of letters from
people who lcnew, worked with and counseled Petitioner suggesting that he had vigorously
applied himself to addressing his problems and has done so successii.il|y. in fact Dr. Maclr fails
to acknowledge that Dr. Hopwood followed the very process that he said needs to be followed in
evaluating a person and, ii'om the Panel’s perspective, failed to follow his own advice in by
failing to give weight to all three areas (intervicwfassessment, review of collateral
sourceslrecords and testing).
Dr. Hopwood found, through testing, that working memory and other components of his
intellectual fiinctioning that had been below normal or created anomalous results in Dr. O|iver’s
testing had normalized. She found, through the WAIS test and other tests, that his executive
function was within normal range. She determined through her review of the totality of the
infomiation at her disposal that Petitioner would be able to meet deadlines and handle the
shifting priorities that are involved with the practice of law.
The Panel does not accept Dr. Mack’s implied assertion that fitness to practice could only be
deten'nined by a large battery of additional tests that he would detine. Nor does the Panel accept
Dr. Mack’s suggestion that such tests would be deterrninative, at the exclusion of all other
evidence. We find that this is contrary to both the decisions of the Court to date and the expert
testimony regarding how neuropsychological/cognitive issues are evaluated by the profession. lt
is up to the Court, not a single professional, to determine the criteria by which rehabilitiation
(and, generally, fitness to practice law) would be determined.
Following our careful review and weighing of the evidence and conflicting expert testimony, we
conclude that Petitioner has established by clear and convincing evidence that he has addressed
the attentional issues that gave rise to his performance issues.
" Dr. Hopwood testified that "practice effects are substantiated up to about six rnonths.” Tr. at 18. we take this to
mean that the test can be validly administered after 6 months. As she testified in detaii, this was not the only test
she used to come to her conclusions Tr. at 16-20. with her extensive professional experience, including as a
professor of Neuropsychoiogy at St. Joseph's university and Temple university (including overseeing doctoral
candidates at ``l‘emple), the Panel is satisfied that Dr. l-iopwood's testimony is competent on these issues.
11
2. Conrpliance with applicable disciplinary orders.
In the Order denying the Petitioner’s first petition for reinstatement, the Court directed that,
during the period of suspension, Petitioner will cooperate with the ODC in its efforts to monitor
his compliance with the suspension order, he must remain active with DELAP and submit to any
drug or alcohol testing deemed appropriate
The evidence is uncontroverted that the Petitioner has remained clean since his inpatient
treatment in 2011 and has cooperated with DELAP. The evidence in the record before the panel
suggests that Petitioner has cooperated with ODC’s efforts to monitor his compliance with the
ten'ns of his suspension. Nor does the panel understand ODC to argue that Petitioner has not met
this standard.
Accordingly, the Panel finds that the Petitioner has met his burden of establishing by clear and
convincing evidence that he has complied with applicable disciplinary orders.
3. Fitness to Practice.
As was noted in the prior Panel 's report denying the first petition for reinstatement, there is
overlap between this standard and "professional rehabilitation“ under the first criterion. Here the
question is whether the conditions that caused Petitioner to allow his cases to fall into disarray
have been addressed and whether there are any impairments that would prevent him from
meeting his obligations as an attorney.
As was noted in In re Johnso)r, 298 P.3"' 904 (Ariz. 2013), it is not the specific underlying
mental condition or diagnosis that is critical, but whether steps to address the conduct leading to
the discipline have been addressed in an appropriate manner. See, fn re Pankowski (adopting the
Board’s Report referring to In re Jolznson). in re Hirsh, 95 A.3d (Vt. 20 l 4) looked at the
question of fitness in the context of an application for admission to the bar. The Panel believes
the underlying principles are instructive here. First, Hr°rsh supports the position that it is
inappropriate to look to a person's mental health status as a basis for a determination of his or her
fitness to practice. Rather it is appropriate to look to his or her conduct or behavior. Second, the
key behaviors with respect to htness of a lawyer are the ability to make proper presentations of
fact and law on behalf of a client and to focus on the client’s needs in and out of court.
Although his lirst petition was dismissed because Petitioner failed to establish rehabilitation and
that he was capable of meeting the minimum standards for functioning as an attomey, that deficit
has been addressed in the present hearing. The record is replete with professional testimony that
establishes Petitioner has the capability to titlt'tll these obligations and other testimony that he is
motivated and, in his role as a law clerk, has shown the skills necessary to function capably as an
attorney.
In addition, the lay witnesses (members of the bar and respected members of the community)
testified that he was a loving father, dedicated provider, who is honest and caring and has the
requisite good character to practice law in Delaware.
The Panel finds that Petitioner has demonstrated by clear and convincing evidence that he is fit
to practice law.
4. C'ompetence
Petitioner put on unrebutted evidence in the fonn of testimony of his employer that he is up to
speed with the law and would be competent if he were reinstated. ODC does not oppose his
reinstatement on this ground. The Panel finds that Petitioner has established by clear and
convincing evidence that he is competent to practice.
5. Absence of other professional misconduct
There is no evidence on the record of other professional misconduct. Thus Petitioner has can'ied
his burden on this element.
6. Petitioner’s recognition of his prior wrongful conduct.
Petitioner’s testimony at the hearing and testimony of his friends, pastor and counselors all
support the finding that Petitioner recognizes the wrong“hilness and seriousness of his prior
conduct. This testimony is unrebutted Thus the Panel finds that Petitioner has established this
element of the test by clear and convincing evidence.
7. Petitioner has the requisite honesty and professional integrity
lt should be noted that one of the violations that led to Petitioner’s suspension was his lack of
candor to the Court, in his failure to correct a misstatement by his counsel until § the Court
had issued a disciplinary order in a Rule to Show Cause hearing. The Panel concludes, based
upon its review of the record, which includes testimony of character witnesses and his employer
and the experts who testified on his behalf, that Petitioner made a serious error injudgment
during the hearing before this Court. This mistake in choosing expediency over candor occurred
at a time when Petitioner had not fully addressed the issues that led to his suspension. The
hearing in front of the Supreme Court was in August, 20l0. He went to DELAP in March 201 l
and went to rehab at Caron in May 2011.5° However, subsequently, through his treatment,
counseling and consistent efforts to be responsible, Petitioner has acknowledged this issue and
demonstrated his commitment to doing things ri ght.
Evidence supporting is his performance as a law clerk, his interaction with his spiritual and
psychological counselors, participation in Narcotics Anonymous and his consistency in
following through on his commitments After carefully reviewing the evidence, the Panel
‘° Pan'qu:n u, at 2.
13
concludes that Petitioner has met his burden of demonstrating by clear and convincing evidence
that he has the requisite honesty and integrity to resume the practice of law.
8. Petitioner '.s' resumption of practice will nor be detrimental to the administration of
justice.
Petitioner has taken admirable steps to address his underlying performance issues. The evidence
strongly supports his rehabilitation and fitness to practice. There are no reasons, from the Panel’s
perspective, to support a finding that his reinstatement would be detrimental to the administration
of justice. Accordingly, the Panel finds that the Petitioner has demonstrated by clear and
convincing evidence that his resumption of practice will not be detrimental to the administration
of justice.
Recommendation
Bccause the Panel after carefully considering the evidence before it has found that the Petitioner
has established by clear and convincing evidence that he has met the criteria of Rule 22(g), it
recommends that the Petition for Reinstatement be granted. However, in reviewing the Court’s
decisions on other reinstatement petitions,s' the Panel observes that in the instances when the
Petition for Reinstatement is granted, the Court usually imposes conditions to ensure continued
ethical behavior.” The Panel suggests that such conditions would be appropriate in this instance
as well. Acc0rdingIy, the Panel recommends that a two year probationary period be imposed
upon Petitioner’s reinstatement. During the period of pr0bation, the Panel recommends that the
following conditions be imposed:
1. Petitioner shall reimburse ODC for the costs of this proceeding, except for the costs
attributed to the services of Dr. Mack. lf he is unable to pay the costs immediate|y,
ODC and Respondent shall enter into an agreement establishing a payment plan
allowing him to pay the costs of these proceedings within the period probation
2. Petitioner must obtain certification from the Delaware CLE authorities that he is
current in his CLE requirements Petitioner may not begin practicing law until those
requirements are satisfied
3. Petitioner shall not engage in the solo practice of law, without the prior written
consent of 0DC, which may be conditioned upon any reasonable terms and
conditions it deems are appropriate to protect against Petitioner missing deadlines and
appearances.
4. Respondent continue his agreement with DELAP, including the requirement of
random drug testing and following its reasonable recommendations regarding
" See, e.g., ln re Ponkowskl.
" rbtu.
14
counseling and training. DELAP will report to ODC on Respondent’s compliance
with this requirement on a quarterly basis during the term of the probationary period.
. Petitioner must remain in his active recovery from his addiction by his continued
participation in Narcotics Anonytnous.
. A practice monitor, other than his employer, shall be appointed to review Petitioner’s
work, including review of deadlines. They shall meet monthly during the first year of
probation and no less than quarterly during the second year. The monitor shall report
to ODC on a quarterly basis regarding Petitioner’s performance
. The Petitioner will cooperate with ODC in monitoring his compliance with the tenns
of Probation.
. Petitioner shall provide ODC with evidence that he is covered by legal malpractice
insurance before he begins practicing law and he shall keep such insurance in fdll
force and effect throughout his probationary period.
. Any failure to comply with the tenns of the probation may be grounds for discipline.
CONCLUSION AND SIGNATURES ON THE FOLLOWING PAGE
Conclusion
For the reasons and with the conditions stated herein, we recommend that the Petition for
Reinstatement be approved.
Respecthllly Submitted,
a@@ -.m._
Richmond L. Williams, Esquire (I.D. No. 2113)
Panel Chair
Deirdre McCartltey, Esquire (l.D. No. 4290)
Panel Member
Deborah L. Miller, Ph.D.
Panel Member
Date: March 15, 2016
BOARD ON PROFESSIONAL RESPONS [BILITY
OF THE SUPREM.E COURT OF THE STATE OF DELAWARE
In the Matter of a )
Member of t]1e Bar of ) CON``F]DENTIAL
the Supreme Court of ) §§
Delaware: ) Board Case No. 1 l23l8-R .___, §
noNALo G.PQLIQurN, ) ¢=§ § _,_.-’.
Respondent. ) § § ;- i -‘r§
I ~»" m \'J
) 57 Q ».~.»',"3
_°_‘=:: >
QN _ -¢
This matter is before a Panel of the Board on Professional Responsibility ("Panel") on
Petitioner’s second Petition for Reinstatement following his suspension from practice for six
months and a day. Mernbers of the Panel were Rjchmond L. Williarris, Esquire (chair), Deirdre
McCartney, Esquire and Deborah L. Miller, Ph.D. The Oftice of Disciplinary Counsel ("ODC")
opposes this petition, claiming that the Petitioner has failed to meet his burden of proving by
clear and convincing evidence that: “(l) his professional rehabilitation; (2) his Htness to practice;
(3) his requisite honesty and professional integrity to resume the practice of law; and (4) his
resumption of the practice of law will not be detrimental to the administration of justice."' A
hearing was held on November 10, 2015. Following the hearing the Panel asked for briefing.
Brieting was concluded on january 15, 2016. This is the Panel's Report and Recommendation on
Petitioner’s Second Reinstatement Petition.
Proccdural Histog
Petitioner was admitted to the Bar of the Supreme Court of Delaware in 2003. At all times
thereafter, until his suspension, he was engaged in the private practice of law.
0n August 9, 2012 Petitioner was suspended from the practice of law for 6 months and a day,
following a series of complaints to ODC that began in 2006.2 By adopting the Report and
Recommcndation of the Board on Professional responsibility, the Court held that Petitioner
!ODC'S ANSWERING MEMORANDUM lN DPPDSIT|ON TO PET|T|ONER'S REINSTATEMENT (hel'ell‘laftel’ “DDC
Opposltlon") at 1.
' m re P.~.»nqu:n, 49 A.a"' ms ¢\)¢1.2012) ¢here:nan¢r ~Panqu:n r'}.
1
violated Delaware Lawyers’ Rules of Professional Conduct l.l , l.3, 3.4(c), 3.4(d), 8.4(c) and
3.4(¢\).’
Petitioner filed his first Petition for Reinstatement on May 13, 2013 alter advising ODC of his
intent to seek reinstatement and submitting a completed Reinstatement Questionnaire." By its
Order dated February 21 , 2014, the Court denied the Petition.’ lt specifically approved the
Board’s findings stating:
the Board concluded that that Petitioner had not demonstrated by clear and convincing
evidence (i) that he is professionally rehabilitated, (ii) that he is tit to practice, (iii) that he has not
engaged in any other professional misconduct, (iv) that his readmission would not be detrimental
to the administration of justice. Finally, given its findings that Petitioner has not sufficiently
overcome his perfon'nance related issues, the Board concluded that Petitioner's reinstatement
would be prejudicial to the administration of justice. We agree.°
Petitioner filed his second Petition for Reinstatement on june 8, 2015. ODC opposed the Petition
in its Answer dated .luly l4, 2015. A hearing was scheduled for September 24, 2015. The
hearing was postponed to allow the parties to advise the Panel regarding the issues surrounding
ODC’s request that Petitioner undergo additional neuropsychological testing. Upon the Panel’s
determination that it would not require Petitioner to undergo additional testing, the hearing was
conducted on November i0, 2015. The record closed on january 15, 2016 with the conclusion of
post hearing briefing
In the post hearing briefing regarding the second Petition, an issue was raised about the scope of
the hearing. As was reflected in Poliqur°n I!, the Petitioner has the burden of demonstrating by
clear and convincing evidence that he meets the requirements of Rule 22(g) of the Delaware
Lawyers’ Rules of Disciplinary Procedure" and that he has overcome his performance related
issues. The background of this issue is provided by an email exchange between the Panel Chair
and counsel for the parties. Following a teleconference with counsel, the Panel Chair wrote:
In the conference, ODC confirmed that the issue of whether Mr. Poliquin has
made sufficient progress in addressing the impacts of his ADl-lD on his ability to
practice is the sole basis for its objections to Mr. Poliquin’s reinstatement.
If I have misstated the position of any party or the issue or have omitted anything
important to the steps needed to resolve this issue, please bring it to my
attention.°
’ td., ac 1131.
‘ m re Pauqutn, as Aa"' 1119 (oel.zoi»t) ther¢tnaner "Ponqum m
5
fd.
"’ :d.
’ Herelnafter, the "Ru|es.”
° Fo|iquir\ letter submlsslon, september 28, 2015, Exhtblt 21
2
In his email of October 30, 20|5, the Panel Chair determined that the Panel would not compel
Petitioner to undergo additional testing as recommended by ODC.° Again, the focus of this email
and the Panel’s expectations of the hearing, based upon the representations of the parties, was
that the main focus would be whether Petitioner has met his burden of showing that he was able
to perform the functions of a lawyer (in other words, whether the deficits identified in prior
testing had been addressed). At no point prior to the commencement of the hearing did ODC
advise the Panel that ODC opposed the petition on any other basis.
At the hearing, the question of the scope of the hearing was again raised by the parties. The Panel
Chair stated that the Panel has an obligation to detennine whether the Petitioner has met his
burden of establishing by clear and convincing evidence that he has met the criteria of Rule 22.
However, the main focus of the hearing was the attentional issue.'° Neither party took issue with
this characterization of the focus of the hearing.
Facts
The record in this proceeding consists of the testimony of witnesses at the hearing, exhibits
submitted in connection with the hearing and other submissions of the parties. The Joint Bxhibits
include the transcripts of the prior hearings on reinstatement (August 2 l , 2013 and September
30, 20!3) and numerous reports and recommendations. This evidence will not be restated or
summarized, except to the extent necessary to address the issues relevant to the Petition and
ODC’s opposition.
In a report dated August l3, 2014, Dr. Edwin Oliver stated, “[Petitione``r] exhibited a rare 36
point difference between his Working Memory and Verbal Comprehension." His working
memory was signilicantly below average and this was a significant factor in the attentional
problems." Dr. Oliver summarized the issue in his report as follows:
’Iliere is significant scatter in Mr. Poliquin’s WA]S»N profile that makes his Full
Sca|e IQ to be essentially meaningless. In his verbal profile he exhibited a rare 36
point difference between his Working Memory and Verbal Comprehension
composite scores. This clinically significant and highly unusual finding would
surely explain a great deal of the frustration he experiences with retaining
inforrnation, especially details such as figures and numbers. Given his 4"‘
percentile Working Memory scale score, it is easy to see that Mr. Poliquin
requires a great deal of effort and repetition in order to retain meaningfl.tlly, or
ultimately comprehend some material. Given his High Average Verbal
Comprehension score, one would expect (theoretically) a score in about the same
range on the Perceptual Reasoning scale. However, again his scores were quite
9 Attachment to Pollquln Replv memorandum of January 15, 2015 (Pollquln Reply). We would note that ODC did
not affirmatively seek to compel the additional exarninatlon, but requested it lnforrnallv.
m Transcrlpt of the Hearing dated November 10, 2015 {"Tr."), at 11-13.
“ Joint Exhlbits at the November 10, 2015 Hearlng {"Jolnt E)chiblts“}, at Tab 10
3
discrepant ( 18 point difference), indicating that abstract (figural) information can
also be quite taxing for him. I believe that deviations and discrepancies such at
the ones that he displays make work often tiring, challenging and leave him quite
vulnerable to stress and other complications, like addiction.
Id., at 2. Dr O!iver then concluded by stating: “While 1 see problems sustaining focus and
attention with certain tasks, such as short tenn retention, 1 don’t think that this definitively
proves that he has a pure attention problern. Rather, attention problems can be secondary to other
biologic or environmental problems or stress, or a combination of these." Id.
The record reflects that after this evaluation, Petitioner continued to address behavioral issues
that would improve his performance and obtained a prescription for Strattera. In correspondence
between Petitioner’s counsel at the time and ODC, after the petition for reinstatement was liled,
ODC emphasized that, particularly in light of Dr. Oliver’s tindings, petitioner needed to be able
to demonstrate that he has addressed his performance issues. ODC also pointed out that while
Petitioner had obtained a prescription for Strattera, he needed to provide "objective evidence
documenting cognitive improvement resulting from the medication or otherwise.""
As a result, petitioner arranged to have an evaluation by Dr. Christianne Hopwood.
Christianne Hopwood, Ph.D. was the first witness at the hearing. She testified that she was
retained by Petitioner "to assess whether there was a difference in his performance now that he
was taking Strattera." Her evaluation report of the Petitioner concluded that his attentiona|
issues had significantly improved compared to what was reported by Dr. Oliver. She described in
detail the tests and evaluation she conducted. She indicated that in making her determination she
considered the clinical interview, infomiation from collateral sources and neuropsychological
testing.
As part of the evaluation relating to collateral sources, she considered the documents nom the
court proceedings, references, doctor‘s evaluations and all other sources of infonnation that was
provided to her. She specifically addressed all of the criticisms that Dr. Mack raised about her
report." She concluded that she felt strongly that the Petitioner is capable of performing his job
as an attomey."
On cross examination, ODC questioned whether Dr. Hopwood had reviewed all relevant records.
Her response was that she had reviewed and considered them in giving her opinion. Based upon
our review of her testimony and the exhibits, the Panel accepts her testimony.'°
n Letter from ODC to Andre Beauregard, Dated February 27, 2015, at 2.
" rr., at ts.
“ rr., at 23-2').
n Tr., at 2?.
m See, generally, Tr., at 27-51. $ee olso, our discussion at page 6, below.
4
In response to a question by Panel Member Miller, Dr. I-Iopwood testified that although the
specific diagnosis of ADHD is not clear (meaning it is not clear that Petitioner met the specific
criteria for this diagnosis and that it is not clear that a professional followed the precise protocol
to make that diagnosis), "he has symptoms consistent. .. with it.“" She also testified that
regardless of the cause of the memory and attentional issues, the things that are done to remedy
them are the same."' Dr. Hopwood‘s opinion is that the improvement shown through testing is
the result of Petitioner’s prescription for Strattera and lifestyle changes he has made, including
getting more sleep and exercise.'° She believes that he will be able to maintain his higher level of
performance because he is highly motivated to perfonn at that level in the fitture.z°
A|ice O’Brien testified that Petitioner has iitlly cooperated and has followed through on all of the
recommendations given to him regarding ways to address the problems that led to his
suspension.z' These include time management techniques, the DeIaware Lawyer’s Assistance
Program (DELAP) workshops on avoiding procrastination, faithful participation in Narcotics
Anonyrnous and becoming more involved with his church and faith. Her opinion is that
Petitioner has addressed the issues that led to his suspension, which in her mind were primarily
attentional and organizational issues.
Carol Waldhauser, the Executive Director of Delaware Lawyers Assistance Program (DELAP)
testified that Petitioner contacted her in 20| l (before his suspension).n He signed a "Blueprint
for Change" agreement with DELAP that included inpatient treatment for substance abuse,
random drug screening, counseling and periodic check-ins with DELAP. l-le successfully
completed the inpatient program at Caron and continues to adhere to his agreement today. She
supports his reinstatement. If Petitioner is reinstated, Ms. Waldhauser would recommend that the
random drug screening program continues
ODC has attempted to make a point in its cross examination of Ms. O’Brien and Ms. Waldhauser
that, in his ongoing treatment and other activities to address his performance issues, he was not
complaining about attentional issues. These witnesses explained that their focus with him was to
help him perfonn appropriately, and they were primarily concemed that he did the specific
things he promised to do and was able to successfi.llly perform at worlc. Thus while these issues
were addressed, it was more indirectly and more focused on the solutions.” The Panel finds that
ODC’s suggested interpretation of the testimony of these witnesses (that the work with them
somehow didn't address/ involve the attentional issues) is strained From listening to the
testimony as a whole, it is clear to the Panel that the foundation of the relationship between
n Tr., at 55.
‘° rr., ar ss-ss.
" Tr., ar ss-ss.
m Tr., at 59-60.
n Tr. at 62-69.
n Tr., at 94.
”see, .-.=.g., rr., ar vs-sz, 10a-11a
Respondent and both Ms. O’Brien and Ms. Waldhauser was the need to address a variety of
problems, starting with the addiction and then moving to the attentional issues.
In its argument, ODC asks the Panel to conclude:
1. "Poliquin never told the experts about his systematic failure to meet his professional
obligations and his inability to correct those failures despite implementation of
practice management techniques."g"
2. "Poliquin is incapable of changing his behavior to meet his professional duties owed
to clients, the conrts, and the legal prot``ession."”
The record does not support these arguments Dr. Hopwood was aware of the circumstances that
led to Petitioner’s suspension and had reviewed relevant infonnation.:° While it is possible that
some specific document was not given to her, ODC has not pointed out any material document
that was omitted. ln other words, ODC was not able to show that her opinion would have been
different had she been given any particular piece of infon'nation that was omitted. The panel
notes that, in being questioned by ODC, Dr. Hopwood gave a very concise and accurate
description of the issues that led to his suspension.” She also knew the progression of his
attempts to address his problems." This is quite persuasive in convincing the Panel that Dr.
Hopwood did, indeed, understand the issues she was dealing with. Although, Ms. O’Brien
acknowledged that she did not have all of the formal documents regarding Petitioner’s
disciplinary history,” her testimony demonstrated that she was quite aware of his performance
problems and was working to help him develop ways to address thern.’° 0DC’s proposed
conclusion is completely at odds with the overwhelming evidence on the record before the Panel.
The Panel similarly finds 0DC’s position that Petitioner "is incapable of changing his
behavior. .." is not supportable when viewed in light of the undisputed evidence on the record.
All experts, including ODC’S expert Dr. Maclc, support the conclusion that the problems
encountered by Petitioner g be addressed. All, including Dr. Mack, acknowledged that the
evidence demonstrated that change l_‘)a_d taken place.a'
Mr. Andre Beauregard testified that his firm has employed Petitioner as a law clerk since
Petitioner’s suspension. He testified in detail about the work Petitioner did for the firm and stated
" ooc ar 21.
" ooc ar 21.
" rr., ar 21, 34-40.
n Tr., at 39.
n Tr., at 37-49.
" rr., ar aa-ss.
’° rr., ar sa-s').
“ Tr., at 251. Dr. Mack did not believe that the change in test scores was sufiicient and appeared to ignore the
testimony of the people who observed his behavior on a day to day basis in concluding that the change was not
enough. Thls is evidenced by the fact that although given the opportunity to hear all witnesses at the hearing he
dldn't bother to take advantage of that opportunity. Tr., at 254.
6
without qualification that Petitioner was capable of meeting the standards of a Delaware
attomey.”
Sean Lynn, a Delaware attorney since 2005, Father James Lentini (Respondent‘s Pastor) and BiIl
Moser (Respondent‘s Narcotics Anonyrnous sponsor) all testified in support of Petitioner's
reinstatement.” They testified about his character, his remorse, his involvement in the
community and his honesty and integrity. All supported his reinstatement.“
Mr. Poliquin testified on his own behali".” He acknowledged the failings that led to his
suspension.’° He expressed remorse for his wrongful conduct and for harming the institution of
law.” He testified at length to the steps he took to address the causes of failure to meet the
standards, including what has been described before as his performance issues.” In cross
examination, ODC questioned a number of areas. One of which became a theme in its brief
suggesting that Mr. Poliquin had a candor problem. One example is the question of what
representations were made when Petitioner went to Mind & Body Consortium to seek a
prescription for Strattera. I-Iis direct testimony was:
Q: There was something about at the Mind and Body Consortium you had made
reference to you were having problems with doing assignments, clarity, f'ocus.
Was that at that time you went or were you relating what the problems were in
the past?
A: That‘s not what l presented to thern. 1 presented, l said-'€-f--first l told them I
had this evaluation taken and my counselor is recommending Strattera. And I
told them about my past issues with my ADHD and how l was handling it at that
point. 1 did not say that l was having issues as a law clerk at that point in time.
That was a mistake 39
0n cross examination, Petitioner agreed that he did not require Mind & Body Consortium to
correct this error, but he does not concede that the entry in its records is correct. However, in its
brief, ODC uses this inaccurate entry as a basis to argue that Petitioner was not candid with that
provider."° The record does not support ODC‘s argument that the entry is evidence of dishonest
behavior on the part of Petitioner.‘" While it is true there are some mistakes and inconsistencies
” 'rr., ar 112»116.
" Tr., ar 131-14a
“ The Panel also notes the transcripts of the prior reinstatement hearings that have been made a part of the
record before it. $ee, Exhlblts 3 and 4. They contain additional character evidence in support of his good character.
" Tr., ar 14a-20a
" rr., at 153»153.
" Tr., at lss~:teo.
” rr., ac 150-153.
" rr., ar 151.
‘° ooc ar ze.
‘“Slmilarly, the Panel does not find the argument raised by ODC regarding Petitioner's failure to list Dr. Vtl|abona in
the prior petition to suggest dishonesty. As Petitioner noted in response to cross examination although he failed
7
in the record of Petitioner since his suspension, mistakes and inconsistencies can be found in the
work product of all honest and well intentioned parties, including counsel for both ODC and the
Petitioner in this proceeding and, no doubt, this Report and Recommendation.
The Panel has careli.rlly looked at the evidence relevant to this issue. The Pane| finds that ODC
presents a strained interpretation of the evidence by suggesting Petitioner has demonstrated
neither honesty nor rehabilitation. The interpretation that is best supported by the evidence on the
record is that Petitioner has demonstrated his ability to meet deadlines and prioritize and to
honestly deal with life's adversities. This ability has significantly improved as a result of his
diligently pursuing a number of approaches, including counseling by Mr. Widder and Ms.
O’Brien, organizational techniques, spiritual counseling, Narcotics Anonymous, support of
DELAP, support of his employer, friends and family, his strong motivation to resume practice as
a lawyer and, finally, his prescription for Strattera. Most of ODC’s points suggesting inability or
failure to change are from the period prior to Petitioner’s suspension. The evidence following his
suspension is overwhelmingly of success in addressing his performance issues. His last petition
was denied, not because he had not progressed, but because he had not put on suflicient evidence
to meet his burden in all areas.
in opposition to the petition for reinstatement, ODC presented only one witness, Jonathan H.
Maclc, Psy.D. Dr. Mack was given the opportunity to be present during the testimony in the
hearing but chose to be present only during part of the testimony and had previously reviewed
the records relating to the neuropsychological assessments and had issued his own report based
upon his evaluation.” Dr. Mack explained that he was a "Forensic Psychologist." He testified
that his role was to look at the root cause of the issue "objectively" rather than to advocate for
the patient’s recovery."’ According to Dr. Mack the first part of the assessment requires
examination of the individual to determine his mental state, the second part requires review of
records and collateral sources and the third part is testing.“ These are the “three legs of the
stool" on which forensic neuropsychological and psychological evaluations must be based.``” He
testified at great length about what review should have been conducted in his view and, it secms,
concluded that there was insufficient information to determine if the Petitioner’s perfonnance
issues had been addressed in a satisfactory manner.‘° However, at the end, in response to a
question from the Panel Dr. Mack was unable to state whether the additional evaluative measures
he recommended would be a better predictor of whether or not the Petitioner would be able to
to list the doctor in the petitlon, he did disclose the doctor throughout the process and had provided
authorizations for access to all records from people who provided treatment, including Dr. Vil|abcna. Tr. at 176-
177.
n The report was introduced into evidence and is identified as Exhlbit DDC 7.
" 'rr., ar 210-212.
" id.
" rr., ar 211-212.
" 'rr., ar 212-250.