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

Zapor, Disciplinary Counsel. v.
127 Ohio St.3d 372, 2010-Ohio-5769. Decided 12/2/2010.
Case Summaries- 364
Respondent, while serving as a court-appointed guardian, misappropriated funds from a ward‘s account.
In December 2009, he was convicted of theft, a fifth-degree felony for which he was ordered to serve
one year community control, pay a fine, and provide complete restitution. In March 2010, he received an
interim felony suspension from the practice of law. Respondent was appointed in 2007 as guardian for a
ward. The ward‘s only assets were her OPERS pension, Social Security benefits, and a house. For a
year and a half, respondent made unauthorized withdrawals to pay his personal expenses. The
withdrawals totaled over $20,000 and resulted in several overdrafts. In two accountings to the court, he
falsely represented he collected and deposited the Social Security checks and had not made withdrawal in
excess of the monthly withdrawal amount authorized by the court for the ward‘s care. Board adopted the
panel‘s findings of violations of Prof.Cond.R. 1.3, 3.3(a)(1), 8.4(b), 8.4(c), 8.4(d), and 8.4(h) and
recommended sanction of an indefinite suspension. In mitigation, the Board found as the parties
stipulated that respondent lacked a prior disciplinary record, made restitution, had a cooperative attitude,
and had other penalties imposed upon him. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (f). In
aggravation, although not stipulated to, the board found that respondent: acted with a dishonest or
selfish motive, pattern of misconduct, and multiple offenses. BCGD Proc.Reg. 10(B)(1)(b), (c), and (d).
Although respondent testified in deposition about his problems with alcohol and gambling, the board did
not find that it rose to the level of mitigation pursuant to BCGD Proc.Reg. 10(B)(2)(g). Respondent
declined to attend a formal hearing and present such evidence, even though it was suggested to him by
the panel chair, and respondent admitted he was not in compliance with his OLAP contract. The board,
citing Hunter (2005, noted that the presumptive sanction for this type of behavior is disbarment. Citing
Thomas (2010), it was noted that mitigating circumstances can support an indefinite suspension. The
court noted that according to the Board, respondent seemed genuinely contrite and confessed that the
funds were misappropriated because of financial difficulties. According to his testimony, he has
taken steps to resolve his substance-abuse and gambling problems, which he claims played some
role in his choice, and he with the assistance of his family has made all the restitution in the criminal
case. The Court adopted the board‘s recommended sanction of an indefinite suspension, without credit
for time served under the interim felony suspension, but added that before petitioning for reinstatement,
respondent must comply with conditions: extend his current OLAP contract an additional 2 years from the
current expiration date; abide by obligations of the OLAP contract; continue his treatment and provide
proof of treatment, and refrain from any disciplinary violations.
Rules Violated: Prof.Cond.R. 1.3, 3.3(a)(1), 8.4(b), 8.4(c), 8.4(d), 8.4(h)
Aggravation: (b), (c), (d)
Mitigation: (a), (c), (d), (f)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: YES
Public Official: NO Sanction: Indefinite Suspension