Legal Ethics

Lawyer who blamed sleep apnea for case inaction faces 3-year suspension

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A lawyer who blamed sleep apnea for his inaction on a case should be suspended but not disbarred, according to a recommendation by the New Hampshire Supreme Court’s Professional Conduct Committee.

The committee is recommending a three-year suspension, with 18 months stayed, for Manchester attorney Joshua Mesmer, the New Hampshire Union Leader reported last week. An appeal is planned.

According to the committee, Mesmer lied to his clients about the work he wasn’t doing, falsely blamed bad outcomes on court corruption, billed his clients far above any time he spent on the case, and then aggressively pursued payment.

“Though Mr. Mesmer was inattentive to many matters in this litigation,” the committee said, “he remembered to bill his clients, and he remembered to make efforts to collect money from them that he had not earned.”

Mesmer practices at the law firm Mesmer & Deleault, which paid Mesmer’s clients the value of ownership interests lost as a result of Mesmer’s inaction, according to the committee’s Feb. 19 recommendation.

The misconduct allegations concern Mesmer’s representation of Tires Inc. after it stopped making promised payments to satisfy a judgment in excess of $165,000. The unpaid litigant filed a motion for contempt and claimed that Tires Inc. was unable to pay because it distributed assets to its owners.

Mesmer told the owners that he was drafting an objection and a motion to dismiss and promised to send them a copy. When one of the owners emailed Mesmer about failing to receive the pleadings, Mesmer was reassuring. “Try not to stress about this,” he said. “We’re taking care of it.”

That was just the beginning, according to the committee. “This began a chain of broken promises that Mr. Mesmer made,” the committee wrote. Mesmer actually took no action, leading to the entry of a default judgment against his clients.

Mesmer had asserted that his sleep apnea had caused his inattention to the case and contributed to his misrepresentations. He said his sleep apnea had been undiagnosed for years, making him unable to focus, multitask and exercise sound judgment.

Mesmer’s medical expert had testified that sleep apnea can cause forgetfulness and harm work productivity. The doctor called the condition “presenteeism,” which means that someone is physically present at work but not able to fully function.

A hearing panel had concluded that Mesmer did suffer from sleep apnea, but it didn’t impair his judgment to such an extent that his conduct was unknowing.

The sleep apnea was a mitigating factor that justified a lesser sanction than the baseline of disbarment, but it didn’t excuse the conduct, the committee concluded.

Mesmer had argued that no suspension is warranted since his sleep apnea has been diagnosed and treated. He also said his firm had imposed its own “suspension” of him after the misconduct came to light, and his apnea is now cured, according to the committee.

The committee concluded that punishment would be too light. Messmer’s conduct “was severe, protracted and injurious,” the committee wrote. “This committee has an obligation to protect the public, and any recommendation less than a significant period of suspension would be inappropriate.”

Mesmer’s father, Frank Mesmer, is a founding partner of Mesmer & Deleault. “We disagree with the findings and recommendations and are going to appeal,” he told the New Hampshire Union Leader.

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