disciplinary handbook: volume v - Supreme Court - State of Ohio

Larkin, Columbus Bar Assn. v.
128 Ohio St.3d 368, 2011-Ohio-762. Decided 2/23/2011.
Case Summaries- 171
Respondent was indicted for possession of cocaine and heroin and she entered a diversion program that
required drug and alcohol counseling, drug screening, and abstention from drug and alcohol use. She
failed to comply with the diversion program and the trial judge returned her criminal case to the court‘s
active docket. She also failed to cooperate in the disciplinary process after her deposition. In 2010,
during the pendency of disciplinary action, respondent has been sanctioned for failing to comply with
continuing legal education requirements. A master commissioner was appointed to make findings of fact,
conclusions of law, and a recommended sanction on relator‘s default motion. The facts underlying
respondent‘s indictment arose from respondent‘s automobile accident in 2009 in which she was
seriously injured. While investigating the accident, police found a crack-cocaine pipe and used heroin
syringes in respondent‘s car. At deposition, respondent admitted to longstanding problem with drugs and
alcohol and unsuccessful treatment. She also admitted that at the time of the accident she possessed drug
paraphernalia containing residue of heroin and cocaine and that she was travelling to see someone who
encouraged her illegal drug use. Respondent has had no contact with OLAP since August 2007,
despite relator‘s urging to contact OLAP. The master commissioner and the board found a violation of
Prof.Cond.R. 8.4(b) and 8.4(h) and recommended an indefinite suspension. The court adopted the
findings of fact and conclusions of law, and the recommended sanction. In aggravation, respondent
engaged in a pattern of misconduct involving multiple offenses and failed to cooperate in the disciplinary
process after the deposition. BCGD Proc.Reg. 10(B)(1)(c), (d), and (e). The court also found a prior
disciplinary record for failure to comply with attorney- registration requirements as an aggravating factor,
citing Mitchell (2010) and Paulson (2006) ―(both holding that attorney-registration violations are prior
disciplinary offenses pursuant to BCGD Proc.Reg. 10(B)(1)(a)).‖ BCGD Proc.Reg. 10(B)(1)(a). The
court rejected the board‘s finding of imposition of other penalties as a mitigating factor, since the court
found no evidence of other penalties or sanctions. Relator requested an indefinite suspension, citing
Ridenbaugh (2009), Wolanin (2009), and Young (2004), cases involving mental illness or substance
abuse, but not qualifying as a mitigating factor under BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv).
The court, citing Young (2004) which cited Johnson (2002), noted that the court‘s duty to protect the
public but also to not deprive the public of attorney who through rehabilitation may be able to ethically
and competently serve. The court ordered that respondent be indefinitely suspended, with reinstatement
conditioned upon proof that respondent successfully completed treatment for substance abuse and is
capable of competent, ethical, and professional practice.
Rules Violated: Prof.Cond.R. 8.4(b), 8.4(h)
Aggravation: (a), (c), (d), (e)
Mitigation: NONE
Prior Discipline: YES Procedure/ Process Issues: YES Criminal Conduct: YES
Public Official: NO Sanction: Indefinite Suspension