Under what circumstances can an attorney raise psychological disability as a mitigating factor in disciplinary proceedings? He or she must establish that depression was a cause of the misconduct. Attorney Bergstrom of Minnesota succeeded in establishing such causation, despite the fact that his mental health expert's testimony was discredited. Attorney Sonsay of Wisconsin provided credible psychological testimony that ultimately failed to establish the necessary causation.

In the years between 1994 and 1996, Attorney Bergstrom allegedly failed to, among other shortcomings, file court documents on time, respond to discovery requests, and diligently pursue a client's interests. He allegedly lied to his client and did not promptly surrender a client's file. During this time, he was being treated by a psychologist for depression. The therapist provided periodic progress reports to the Office of Lawyers' Professional Responsibility, claiming that her patient had been working very hard in therapy and was making a considerable effort to resolve his procrastination problems. The hearing officer concluded that the psychologist's testimony was not credible. During the very time period she was lauding Attorney Bergstrom, he was engaging in the unprofessional behavior for which he was being disciplined. Therefore, he failed to prove by clear and convincing evidence that he had made sufficient recovery from his psychological problems, or that the misconduct had stopped and was unlikely to reoccur Mr. Bergstrom was suspended indefinitely from the practice of law. Upon appeal, the court found that Mr. Bergstrom's depression clearly played a significant role in his misconduct during the years between 1994 and 1996, but he now demonstrated significant improvement in his psychological condition and his part-time legal practice. Attorney Bergstrom was permitted to continue practice law, under the condition that he continue psychological treatment.

Attorney Sonsay allegedly converted client funds, misrepresented matters to clients, ignored clients' requests for information, filed frivolous lawsuits and failed to acknowledge his wrongdoing during the periods between 1984 and 1994. At his disciplinary hearings, Attorney Sonsay claimed that his psychological condition of dysthymia should be considered in mitigating his discipline. His psychologist testified that he began treating Sonsay in 1995 and diagnosed him as suffering from a long-term, untreated depression. He also testified that his patient was erratic in attendance at therapy sessions and refused to undertake a course of anti-depressant medicine. The psychologist acknowledged that he had not reviewed prior records about previous treatment sought by Mr. Sonsay, he did not test his patient, and his diagnoses was based solely on his observations of patient's behavior and self-reports. The hearing officer failed to find a link between his alleged condition and the numerous instances of professional misconduct. Sonsay's license to practice law in Wisconsin was revoked. Upon appeal, the court upheld the hearing officer's findings, emphasizing that Sonsay had not begun treatment with his psychologist until 1995, long after the misconduct occurred.