The New Hampshire Supreme Court’s Professional Conduct Committee recommended a three-year suspension for a lawyer who claimed sleep apnea caused him to ignore his cases.
According to the Committee, the lawyer, Mr. Mesmer, lied to his clients about the status of the casework he performed, characterized the court as corrupt, billed his clients beyond the time he spent on the case, aggressively pursued payment, referred to opposing counsel in derogatory terms, made misrepresentations to the court, and directed his clients to execute inaccurate affidavits, which he then filed with the court.
Mr. Mesmer’s behavior came to light when his clients, the owners of Tires, Inc., hired Mr. Mesmer to defend them against a contempt motion. Tires, Inc. had previously agreed to make settlement payments to Motostar to satisfy a $165,000.00 judgement. Tires, Inc., however, became insolvent and ceased making payments.
In a series of emails, texts, and phone calls, Mr. Mesmer assured his clients he was working on a motion to dismiss. He told the clients he would send them copies of the pleadings. When informed by the owners that they did not receive the copies, Mr. Mesmer again reassured them, telling them “not to stress about it.”
According to the report of the Committee, Mr. Mesmer took no action, and continued to lie about the work he was not completing. This led to a series of events culminating in a default judgement against his clients.
In explaining his neglect, Mr. Mesmer claimed that he suffered from undiagnosed sleep apnea. He asserted this condition left him unable to focus, multitask, and exercise sound judgment. Thus, Mr. Mesmer claimed, his condition was responsible for his inattention and misrepresentations. At the hearing panel, Mr. Mesmer’s medical expert testified to the causal relationship between sleep apnea and forgetfulness. However, the Attorney Discipline Office (ADO) contested the claims, presenting testimony of an expert in sleep apnea. The expert opined that Mr. Mesmer’s suffered from mild sleep apnea.
The hearing panel found that Mr. Mesmer’s sleep apnea “did not prevent him from forming a knowing state of mind with respect to the charged misconduct.” The ADO charged Mr. Mesmer with violating New Hampshire Rules of Professional Conduct 1.1, 1.2, 1.3, 1.4, 1.5, 3.3 and 8.4.
Approving the findings and violations, the Committee found that Mr. Mesmer acted knowingly when he lied to his clients, failed in his duty to maintain candor to the court, undermined the public’s confidence lawyers, and brought injury to his clients.
In meting out discipline, the Committee departed downward from the baseline sanction of disbarment. The Committee considered Mr. Mesmer’s health, lack of a previous disciplinary record, and the “failure [of his firm] to apprehend that he was doing no work in this case, lying to his clients and the court, and trying to get his clients to pay legal fees that neither he nor the firm earned.”
Ultimately, the Committee recommend Mr. Mesmer be suspended for three years, with eighteen months stayed. Additionally, Mr. Mesmer is responsible for the costs of the investigation and prosecution of the charges.
Read Committee’s recommendation here.
