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

McShane, Disciplinary Counsel v.
121 Ohio St.3d 169, 2009-Ohio-746. Decided 2/25/2009.
Case Summaries- 210
Respondent failed to provide promised legal services to two clients, return unearned portions of the
clients‘ fees, and respond during an investigation of this misconduct. Respondent was charged with three
counts of professional misconduct, but did not answer the complaint. Relator moved for default pursuant
to Gov.Bar R. V(6)(F). A master commissioner appointed by the board granted the motion, made
findings of fact, conclusions of law, and recommended an indefinite suspension. The board adopted the
master commissioner‘s findings and recommended sanction. Respondent filed a motion for remand to the
board, objections to the board‘s report, a motion to supplement the record, and a second motion for
remand in response to the Supreme Court‘s order to show cause as to why it should not confirm the
board‘s recommendation. The Supreme Court denied the motion to supplement, but remanded the case to
the board for further proceedings as to appropriate sanction, because respondent proffered compelling
evidence of mental disability in explanation for his failure to answer, as well as substantial evidence
in mitigation of his misconduct. On remand, the parties stipulated to the master commissioner‘s
findings of misconduct. The panel hearing focused on mitigating evidence. In Count I, Philip C. Roholt
retained respondent in September 2004 to pursue an antitrust claim. Roholt paid respondent an initial fee
of $5,000 but respondent failed to maintain contact with Roholt, did no work on his case, and did not
return any of the $5,000 fee as unearned. As to Count I, the board found violations of DR 1-102(A)(5),
1-102(A)(6), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), 7-101(A)(3), and, because it was stipulated to,
Gov.Bar R.V(4)(G). In Count II, Thomas G. Holowitz asked the Columbus Bar Association (CBA) to
arbitrate his fee dispute with respondent, but respondent did not participate in the arbitration. In October
2006, a fee- arbitration committee determined that respondent had improperly withheld $1,350 in fees and
directed respondent to return the money. There is no evidence suggesting he ever did. As to Count II, the
board found violations of DR 1-102(A)(6) and 9-102(B)(4). In Count III, respondent failed to respond to
an investigation of his misconduct by the CBA, which inquired several times about issues raised during
the arbitration proceeding, including whether respondent had deposited a $500 refund from a court into
his client trust account. Further, respondent failed to answer a certified letter from relator. As to Count
III, the board found violations of DR 1-102(A)(5), 1-102(A)(6), and Gov.Bar R. V(4)(G). In
aggravation, the board found a failure to cooperate with the disciplinary process and failure to make
restitution before the case was remanded to the board. These aggravating factors were offset by
respondent‘s mitigating factors including a 35-year career (including 10 years in the Office of the
Ohio Attorney General) without disciplinary incident, good character and reputation, making full and
complete restitution with interest, lack of a dishonest or selfish motive, and an established mental
disability (diagnosed with dysthmia and major depressive disorder) that is now being treated. BCGD
Proc.Reg. 10(B)(2)(a), (b), (c), (d) (e), and (g). Respondent also showed much remorse for his actions.
The board recommended a two-year stayed suspension on conditions that respondent continue treatment
with his psychologist and treating physician until released, provide quarterly reports to relator from his
mental-health professional or treating physician, comply with his OLAP contract in all respects, and
practice only in association with other lawyers and under auspices of a monitoring attorney to be
appointed by relator. The Supreme Court agreed with the findings and recommended sanction and so
ordered.
Rules Violated: DR 1-102(A)(5), 1-102(A)(6), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), 7-101(A)(3), 9-
102(B)(4); Gov.Bar R.V(4)(G)
Aggravation: (e), (i)
Mitigation: (a), (b), (c), (d) (e), (g)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: YES Sanction: Two-year suspension, stayed