Opinion
D.D. No. 83-20
Decided November 23, 1983.
Attorneys at law — Misconduct — One-year suspension — Sexual assaults on female clients — Attorney mentally ill at time of misconduct.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar.
Saul A. Fettner, respondent herein, was admitted to the Bar in the state of Ohio in 1965. He has engaged in the practice of law for approximately seventeen years and has served as a Hamilton County Municipal Court referee for ten of those years.
Cincinnati Bar Association, relator herein, instituted the present disciplinary action against respondent, alleging that, on two separate occasions, respondent violated DR-1-102(A)(3) and DR-1-102(A)(6) when he sexually assaulted two of his female clients during their scheduled visits to his office. At the subsequent hearing before the Board of Commissioners on Grievances and Discipline (hereinafter "board"), respondent admitted that these attacks occurred, but offered psychiatric testimony to the effect that he was suffering from a recognized form of mental illness at the time of the incidents. The psychiatrists further testified that respondent was not suffering from mental illness at the time of the disciplinary hearing.
While recognizing that respondent had, in fact, been mentally ill at the time of the alleged misconduct, the board concluded that there was no legal warrant for excusing respondent's actions on that basis. Accordingly, the board recommended that respondent be suspended from the practice of law for a period of one year.
The matter is now before this court for consideration of the report of the board and the respondent's objections to the board's recommendations.
Mr. James J. Condit, Mr. David W. Mathews, Ms. Susan J. Dlott and Mr. Edwin W. Patterson III, for relator.
Mr. Jack C. Rubenstein, for respondent.
Respondent argues that the board's conclusion that he was mentally ill at the time of the misconduct but is not now mentally ill eliminates the need for a one-year suspension. In support of this position, he cites Gov. Bar R. V(10)(e) which allows a mental illness suspension to be terminated by showing the removal of mental illness. We find this rule, however, to be inapplicable to the present case.
Gov. Bar R. V(10)(e) reads as follows:
"Any suspension under this section may be terminated on Respondent's application to the Board and a showing of removal of the cause for the suspension, which is certified by the Board to, and affirmed by, the Court."
In Ohio State Bar Assn. v. Roest (1978), 54 Ohio St.2d 95 [8 O.O.3d 90], this court held that the mental illness provisions of Gov. Bar R. V(10) "* * * obtain only in controversies wherein a respondent proves he is mentally ill at the time of his disciplinary action." (Emphasis added.) Thus, while the board may properly consider respondent's mental illness at the time of the alleged misconduct as a mitigating factor in determining what sanction should be imposed, the mental illness provisions of Gov. Bar R. V(10) are not intended to be used by a respondent in a disciplinary action to avoid suspension on that basis.
Accordingly, we concur with the board's recommendation that respondent's violations of the disciplinary rules merit a one-year suspension from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.