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

Van Sickle, Columbus Bar Assn. v.128 Ohio St.3d 376, 2011-Ohio-774. Decided 2/24/2011.Case Summaries- 340Respondent practiced law while his license was under registration suspension, neglected client matters,failed to communicate with his clients, and failed to cooperate in the ensuing disciplinary investigation.The panel granted the parties joint motion to dismiss a number of violations and the panel dismissedseveral stipulated violations not charged in the complaint. The board adopted the panel‘s findings andrecommended sanction. In Count One, respondent‘s license was suspended for failure to register for the2007-2009 biennium. While suspended, respondent sent a letter to his wife‘s former landlord andidentified himself as a ―Counselor and Attorney at Law‖ stating he his wife in a security deposit dispute.The board found a violation of Prof.Cond.R. 5.5(a). The court agreed. In Count Two, a client retainedrespondent to prepare a will. Respondent failed to prepare the will and failed to respond to client‘stelephone inquiries about the will, as well as the client‘s new attorney‘s requests for return of theclient‘s documents. The board found violations of DR 7-101(A)(2), and 9-102(B)(4), and Prof.Cond.R.1.15(d), 1.3, and 1.4(a)(3). The court agreed. In Count Three, respondent failed to prepare and filecertain bankruptcy documents for his clients, a husband and wife, even after the bankruptcy courtinstructed him to do so. Respondent did not access his files or his mail for three months after thelocks to his office were changed, and made no effort to have his mail forwarded elsewhere. As aresult, respondent failed to receive notice of a scheduled hearing and subsequent show cause order,and failed to appear. Respondent was found in contempt, sanctioned, and ordered to return received feesin the bankruptcy case, and he failed to certify to the court that he complied with its order. The boardfound violations of DR 1-102(A)(5), 1-102(A)(6), 2-110(A), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and9-102(B)(4). The court agreed, but in footnote 1, the court noted that although the parties stipulated to aviolation of 2-110(A), the Court found no evidence of a violation of 2-110(A)(1), and thus made itsfinding solely on 2-110(A)(2). In Count Four, respondent orally agreed in June 2005 to represent a groupof partners in some tax matters, reorganization of certain business entities, and a possible bankruptcy.However, respondent has not communicated with these clients since 2005 and failed to complete thework. Although respondent did not return all of their documents to them, he did deliver the entire fileto relator in June 2007. The board found violations of DR 7-101(A)(2) and 9-102(B)(4). The courtagreed. The panel did dismiss the stipulated violations of several Rules of Professional Conduct,because they were not alleged in the complaint. In Count Five, respondent failed to submit a writtenresponse to any of the grievances alleged in Counts One through Four. He was subpoenaed andappeared at a deposition and agreed to provide various documents and information, but failed to do so.Respondent, despite being advised at the deposition of his obligation to cooperate and expressing remorsefor not doing so, continued to ignore letters from relator. The board found violations of Prof.Cond.R.8.1(b) and 8.4(h). The court agreed. In aggravation, respondent had a prior disciplinary record,engaged in a pattern of misconduct involving multiple offenses, was initially uncooperative in thedisciplinary investigation and was slow to produce requested documents, harmed several clients, andfailed to make prompt restitution. BCGD Proc.Reg. 10(B)(1)(a), (c), (d), (e), (h), and (i). In mitigation,respondent lacked a dishonest or selfish motive and was eventually cooperative in the disciplinaryprocess. BCGD Proc.Reg. 10(B)(2)(b) and (d). The panel also found that respondent was dealing withseveral significant stressors (including divorce, financial problems, lack of health insurance, a majordepressive disorder), but not to the extent of mental health mitigation in BCGD Proc.Reg. 10(B)(2)(g).Relator recommended an indefinite suspension, while respondent argued for a six-month suspension.The board recommended respondent be suspended for two years, with the second year stayed onconditions that he comply with the requirements of Gov.Bar R. V(10)(C) through (G), that he refrainfrom further misconduct, and that he make restitution to the clients in Count Three. The panelexpressed concern about respondent‘s depression which was first diagnosed in 2006 and its treatment.Respondent submitted a report by Donald J. Tosi, Ph.D., diagnosing him with severe, single episode,major depressive disorder that was causally connected to his misconduct, but not offering any prognosisas to whether respondent will be able to return to competent, ethical, and professional practice of law atthe completion of treatment. Respondent had stopped treatment with two other mental health