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

Burkholder, Ohio State Bar Assn. v.
121 Ohio St.3d 262, 2009-Ohio-761. Decided 2/26/2009.
Case Summaries- 34
Respondent has been suspended for failing to comply with attorney registration requirements, suspended for
failing to comply with child support, and has been convicted of criminal offenses of violence. On September
17, 2008, in Toledo Bar Assn. v. Burkholder, 119 Ohio St.3d 1457, 2008- Ohio-4665, the Supreme Court
found respondent in contempt of the court‘s order issued in Toledo Bar Assn. v. Burkholder, 109 Ohio St.3d
443, 2006-Ohio-2817, and revoked the stay of the six-month suspension imposed for professional misconduct
involving improper sexual advances toward a client. In 2007, in In re Attorney Registration Suspension, 116
Ohio St.3d 1420, 2007-Ohio-6463, the Court suspended respondent‘s license for failure to properly register as
an attorney. Before that, on April 16, 2007, the Court in In re Burkholder, 113 Ohio St.3d 1455, 2007-Ohio-
1751, issued an interim suspension of respondent‘s license to practice because he was in default of courtordered
child support. At one time, respondent had a thriving domestic relations practice in Lucas County,
Ohio. By September 2001, he and his wife had separated, eventually divorced. In October 2005, he turned
his practice over to another lawyer so he could focus on recovering from his serious alcohol problem. Unable
to maintain sobriety even with treatment, he moved to Boston, Massachusetts in September 2006 to seek
help from a sister. While in Massachusetts, respondent was convicted of assault and battery, threatening to
commit crimes against the person or property of another, and of twice violating an abuse-prevention order.
The victim had been his fiancée. He served six months in jail and is on probation until October 7, 2009.
Respondent remains under the above suspensions, continues to live in Boston, abides by his probation terms,
and hopes to eventually return to Ohio. As stipulated by the parties, the panel and board found him in violation
of DR 1-102(A)(6) and Prof.Cond.R. 8.4(h) on two counts; DR 1-102(A)(3) and Prof.Cond.R. 8.4(d); and
Gov.Bar R. VI(1)(D) for his failure to register as an attorney at his current address. In aggravation, he has a
prior disciplinary record and multiple disciplinary infractions, including multiple criminal convictions.
BCGD Proc.Reg. 10(B)(1)(a) and (d). In mitigation, respondent freely disclosed his wrongdoing and is in the
process of recovery from his longstanding battle with alcohol dependency. BCGD Proc.Reg. 10(B)(2)(d)
and (g). He has a family history of alcoholism, began drinking at age 13 or 14, and the drinking increased in
law school, but at age twenty nine he quit drinking for ten years during which time he served on the bar
association‘s lawyer assistance committee. The board noted that at one point respondent was drinking a half
gallon of vodka a day, but now has attended five AA meetings per week, has participated in domestic abuse
counseling, successfully completed an eight month in-patient alcohol abuse program, and has contacted OLAP
in the hopes to participate in that program upon his return to Ohio. The board noted that respondent is ―a
talented lawyer with much to offer his clients if clean and sober‖ and ―appears committed to changing his life,
conquering his addiction, and returning to permanent sobriety.‖ Respondent testified that he is current with
all his child support payments. The sanction was submitted jointly by the parties. The board recommended an
indefinite suspension commencing from April 16, 2007, because a portion of this sanction follows from the
interim suspension for default on orders to pay child support. Further, the board recommended that in
addition to the requirements of Gov.Bar R. V(10)(B) through (E) for reinstatement, respondent must present
evidence that he has and continues to participate actively and meaningfully in OLAP, that he has entered
and continues treatment with a psychiatrist, psychologist, or other licensed health-care professional, that he has
completed all CLE requirements, that he is in compliance with all court orders for child support payment, and
present a report from a psychiatrist, psychologist, or other licensed health-care professional that to a
reasonable degree of certainty respondent is emotionally and psychologically able to withstand the pressures
and demands associated with the practice of law, and his mental health will not impair his ability to meet the
demands of the practice of law. The Supreme Court agreed with the finding of violations and recommended
sanction and so ordered an indefinite suspension with stated conditions for reinstatement.
Rules Violated: Prof.Cond.R. 8.4(d), 8.4(h); DR 1-102(A)(3), 1-102(A)(6)
Aggravation: (a), (d)
Mitigation: (d), (g)
Prior Discipline: YES (x3) Procedure/ Process Issues: NO Criminal Conduct: YES
Public Official: NO Sanction: Indefinite Suspension