Summary
In Toledo Bar Assn. v. DeMars (1983), 6 Ohio St.3d 12, respondent, an alcoholic, committed three discrete and separate disciplinary breaches.
Summary of this case from Bar Assn. of Greater Cleveland v. WilsmanOpinion
D.D. No. 83-4
Decided July 13, 1983.
Attorneys at law — Misconduct — Indefinite suspension — Failure to file requisite inventories and accountings in guardianship and failure to place ward's funds in proper depository or separate account — Funds disbursed without prior court approval — Failure to perform professional services — Alcoholism of attorney — "Conditional" license suspension may not be imposed.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
On October 6, 1982, a hearing was held before the Board of Commissioners on Grievances and Discipline relative to a complaint filed by relator, Toledo Bar Association, against respondent, Robert E. DeMars. In its petition, as amended October 1, 1982, relator in four separate counts alleged that respondent had committed multiple violations of the Disciplinary Rules of the Code of Professional Responsibility. The parties entered into stipulations as to the first three counts, and the fourth was dismissed.
It was alleged in the fourth count that respondent, after accepting a fee, failed to file the appropriate action.
The first count was based on respondent's service as guardian of the estate of a party adjudged incompetent by reason of improvidence and mental disability. The evidence adduced at the hearing showed that respondent had, inter alia, failed to file the requisite inventories and accountings and had not complied with numerous court orders and citations issued as a result of his failures. Respondent further admitted that he had not placed his ward's funds in a proper depository or in a separate account, that he had disbursed funds directly to the ward without prior court approval, and that he had appropriated his fees from the estate's assets without first presenting his claim to the court for services rendered.
Respondent's failure properly to deposit his ward's funds was an infraction of R.C. 2109.41, while his failure to obtain court approval before distributing funds to his ward constituted a violation of R.C. 2111.16.
Respondent testified that he was unaware of his fiduciary obligations to maintain a separate account for his ward's funds and to secure the court's approbation before releasing any funds to his ward. In mitigation of his alleged misconduct, respondent offered that he had often provided monies to his ward out of his own pocket and that through his efforts on behalf of his ward he had earned the fees that he improperly disbursed to himself. The board concluded that respondent's actions constituted violations of DR 2-106 (A), DR 6-101 (A)(1), (2) and (3), and DR 9-102 (A) and (B).
The second count of the complaint arose from respondent's representation of a client in a personal injury action. In contravention of their agreement, respondent failed to remit, out of the settlement check, monies due a creditor who had performed medical services for the client. As a result, the client was forced to assume payment of the obligation. Respondent also informed his client that he had initiated a suit against the insurance company involved to get the obligation paid and that respondent had requested a trial date on the cause when, in fact, no legal action had been taken. The board found respondent's conduct a violation of DR 1-102 (A)(4), (5) and (6), as well as DR 6-101 (A)(1), (2) and (3).
The third count avers that respondent misappropriated the proceeds of a check paid in settlement of a claim asserted by an estate which respondent with co-counsel represented. Not only did respondent fail, until a year after he had received the $3,500 payment, to notify either his co-counsel or the executor of the estate that he had negotiated the check, but he also failed to apprise them that he had even settled the case. Respondent, nonetheless, asserted that he was entitled to retain the entire proceeds of the settlement as he had performed $2,750 in uncompensated legal services for the deceased, had loaned the deceased an additional $750, and had been given an assignment of the claim in payment for the monies allegedly owed. Respondent did not, however, produce a copy of such an assignment to co-counsel when requested to do so. The board determined that respondent's misfeasance comprised violations of DR 1-102 (A)(4), (5) and (6), DR 6-101 (A)(3) and DR 9-102 (B)(1), (3) and (4).
At the hearing respondent presented witnesses who testified that, during the period of his stipulated indiscretions, respondent was suffering from alcoholism. The evidence revealed that he had been hospitalized twice in 1982 because of his addiction and that he is presently under a physician's care and attends Alcoholics Anonymous meetings. Respondent also testified that he has voluntarily refrained from the practice of law for nearly one and one-half years.
For his violations of the Code of Professional Responsibility, the board recommended that respondent be suspended indefinitely from the practice of law.
Mr. John G. Mattimoe, Mr. J. Jeffrey Lowenstein and Mr. Carl F. Dorcas, for relator.
Messrs. Newcomer McCarter and Mr. N. Stevens Newcomer, for respondent.
Respondent does not remonstrate against the board's findings that he has violated several Disciplinary Rules; rather, he protests the severity of the sanction, i.e., indefinite suspension from the practice of law, which the board recommended. Respondent urges the court to defer imposition of the suspension for two years upon the following conditions: that he refrain from practicing law for another year, permit the local bar association to monitor his work upon resumption of his practice, make any restitution ordered by the court, abstain from any consumption of alcohol and continue his active involvement with Alcoholics Anonymous. Although respondent's proposal is not without some merit, we must reject it.
This court is not insensitive to the fact that, particularly in the past decade, the pernicious effects of alcoholism and drug addiction have permeated every sector of society and every profession. Members of the bar, of course, have enjoyed no special immunity. Indeed, it is clear that many of the recently observed incidents of attorney wrongdoing can be directly attributed to the influence of these twin scourges. Cognizant of the interrelationship between such addiction and misconduct, we have acknowledged alcoholism as a mitigating factor in imposing sanctions for infractions of the Code of Professional Responsibility. Ohio State Bar Assn. v. Roest (1978), 54 Ohio St.2d 95, 100 [8 O.O.3d 90].
The problem of disciplining the attorney whose misconduct is a result of alcoholism or drug addiction presents a most formidable dilemma. Although this court is committed to the expeditious rehabilitation of malfeasant lawyers, we simultaneously owe a prodigious obligation to the public. It is solely incumbent upon this court to ensure the fitness of those who practice law in Ohio. As the public is otherwise defenseless against the incompetent or unethical attorney who is not immediately identified and denied the right to practice, our primary responsibility must be to the citizens of this state, not the offending practitioner. Thus, if we must act harshly, we must do so at the expense of the attorney, however tragic and pitiable his plight.
In order to encourage the recovery of attorneys suffering from alcohol or drug abuse without sacrificing or in any way jeopardizing our superordinate commitment to the public, an extensive study of the problem posed by the chemically or otherwise dependent practitioner must first be undertaken. Only then can an equitable, comprehensive and consistent policy be developed that responsibly addresses the issues and is consonant with both the societal and individual objectives of disciplinary proceedings. Such a policy cannot and should not be constructed on the foundation of a series of ad hoc decisions.
Gov. R. V (6) sets forth the sole disciplinary options available to the court for punishing an errant attorney: public reprimand, one-year or indefinite suspension from the practice of law, and permanent disbarment. No provision is made therein for the sanction which respondent urges, and, for the reasons previously stated, we find inadvisable any attempt to fashion, without proper study, a new mode of discipline for the practitioner whose misconduct is a product of alcoholism or drug addiction. In concurring in the board's recommendation, we join with courts in other jurisdictions which, when faced with the same issue, have refused to impose "conditional" license suspensions. See In re Kiepura (1980), 75 App. Div. 2d 664, 426 N.Y.S.2d 591; In re Wooten (1973), 260 S.C. 12, 193 S.E.2d 808; In re Lanahan (1964), 95 Ariz. 268, 389 P.2d 263.
Finally, in favor of his proposal, respondent cites Stark County Bar Assn. v. Weber (1963), 175 Ohio St. 13 [23 O.O.2d 292]. We find Weber inapplicable, however, as the Rules for the Government of the Bar that bind us today were not in effect at the time of that decision.
Thus, this court concurs with the findings of the board that respondent violated DR 1-102 (A)(4), (5) and (6), DR 2-106 (A), DR 6-101 (A)(1), (2) and (3) and DR 9-102 (A) and (B), and it is the judgment of this court that respondent be indefinitely suspended from the practice of law.
Judgment accordingly.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.