Cincinnati Bar Ass'n v. Stidham

[This opinion has been published in Ohio Official Reports at 

87 Ohio St.3d 455

.]




                     CINCINNATI BAR ASSOCIATION v. STIDHAM.
                [Cite as Cincinnati Bar Assn. v. Stidham, 

2000-Ohio-476

.]
Attorneys at law—Misconduct—Two-year suspension with second year stayed—
        Failure to deposit client funds into an identifiable bank account—Failure
        to maintain records of funds and render appropriate accounts—Failure to
        promptly pay funds that client is entitled to receive—Neglect of an
        entrusted legal matter—Failure to seek lawful objectives of client—
        Failure to carry out contract of employment—Prejudicing or damaging
        client—Concealing or knowingly failing to disclose what attorney is
        required by law to reveal—Disregarding a standing rule of a tribunal—
        Conduct involving dishonesty, fraud, deceit, or misrepresentation—
        Conduct adversely reflecting on fitness to practice law—Using firm name
        containing name of one not a member of the firm—Holding oneself out as
        having a partnership with one who is not a partner.
            (No. 99-1156—Submitted September 15, 1999—Decided January 5,
                                           2000.)
        ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 98-43.
                                      __________________
        {¶ 1} On March 30, 1999, relator, Cincinnati Bar Association, filed a
second amended complaint charging respondent, Chuck Ray Stidham of
Cincinnati, Ohio, Attorney 

Registration No. 0031507,

 with violating several
Disciplinary Rules. The parties entered into numerous stipulations of fact and also
stipulated to multiple rules violations prior to a hearing before a panel of the Board
of Commissioners on Grievances and Discipline of the Supreme Court (“board”).
After the stipulations were entered into, relator withdrew several charged
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Disciplinary Rule violations.
          {¶ 2} The charges against respondent relate to six separate matters. Five of
the matters, relating to grievances concerning respondent’s handling of legal
affairs, are contained within Count One of relator’s complaint. The sixth matter,
concerning respondent’s alleged use of a firm name containing the name of an
attorney not a member of the firm, and also alleging that respondent held himself
out as having a partnership with an attorney who is not a partner, is detailed in
Count Two of relator’s complaint.
          {¶ 3} The hearing before the panel was held on May 24, 1999. Following
the hearing, the panel determined findings of fact generally based upon the
stipulations entered into by the parties. The panel’s conclusions of law, with several
exceptions, are also generally based upon the stipulations of rules violations entered
into by the parties. The six separate matters are detailed below.
                                     I. Count One
                                A. The Feltner Matter
          {¶ 4} In this matter, the panel adopted the relevant stipulations as its
findings of fact.
          {¶ 5} In August 1994, Barbara Feltner hired respondent to represent her in
an appeal in a personal injury case, and respondent, on September 1, 1994, filed a
notice of appeal on Feltner’s behalf. Respondent accepted a $1,000 retainer from
Feltner for attorney fees and did not deposit the retainer in his trust account.
Respondent failed to keep time records regarding the work he performed on the
appeal.
          {¶ 6} On February 27, 1997, respondent received a certified letter from
Feltner requesting an accounting of all funds expended on her appeal, as well as an
accounting of funds in another case that respondent handled on behalf of Feltner’s
minor son, and the return of all files. Respondent did not provide Feltner with the
accountings and did not return the files.




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        {¶ 7} The panel adopted the relevant stipulated violations as its conclusions
of law, concluding that respondent violated DR 9-102(A) (failure to deposit client
funds into an identifiable bank account), 9-102(B)(3) (failure to maintain records
of funds and render appropriate accounts), and 9-102(B)(4) (failure to promptly pay
funds that a client is entitled to receive).
                               B. The Caldwell Matter
        {¶ 8} In this matter, the panel also adopted the relevant stipulations as its
findings of fact.
        {¶ 9} Kimberly A. Caldwell retained respondent in June 1993 to represent
her in a divorce action. On July 2, 1994, Caldwell was shot in the chest by her
husband. Caldwell then became interested in filing a reparations application with
the Court of Claims of Ohio, Victims of Crime Division, seeking the recovery of
expenses she incurred due to the shooting.
        {¶ 10} After Caldwell and respondent discussed the application, Caldwell
brought a blank application form to respondent’s office, and respondent’s secretary
typed in information provided by Caldwell. Respondent wrote “will provide other
information when available” on page three of the form.
        {¶ 11} Caldwell signed the application on July 2, 1995, and left it at
respondent’s office. Respondent signed the application as Caldwell’s attorney. At
the time, respondent believed that the application was required to be filed within
one year of the date of the perpetrator’s conviction.        Caldwell’s application
remained in respondent’s office from July 1995 until Caldwell picked it up in
August 1996. Caldwell sent her application to the Court of Claims, where it was
rejected for being untimely filed.
        {¶ 12} Caldwell filed a civil action against respondent and the attorney who
shared office space with him. The matter was settled for $11,000, to be paid by
respondent over a period of time. At the time the stipulations were entered into, a
total of $9,000 had been paid. The case was dismissed without prejudice at the time




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of the settlement, and the settlement provided that it would be dismissed with
prejudice upon completion of the payments.
        {¶ 13} The panel adopted the relevant stipulated violations as its
conclusions of law, concluding that respondent violated DR 6-101(A)(3) (neglect
of a legal matter entrusted to him), 7-101(A)(1) (failure to seek the lawful
objectives of the client), 7-101(A)(2) (failure to carry out a contract of
employment), and 7-101(A)(3) (prejudicing or damaging a client).
                             C. The Rose Weiss Estate
        {¶ 14} In this matter, the panel also adopted the relevant stipulations as its
findings of fact.
        {¶ 15} Respondent was retained in January 1997 to represent the estate of
Rose W. Weiss. On February 12, 1997, respondent opened the estate. On March
18, 1997, respondent requested and received from the executor a check for $18,750
for attorney fees. The parties stipulated that under both a local rule of the Hamilton
County Probate Court and the Rules of Superintendence for the Courts of Ohio,
attorney fees for the administration of estates are not to be paid until the final
account is prepared for filing, unless otherwise approved by the court upon
application and for good cause shown. Respondent never applied to the probate
court for permission to receive his attorney fees early. Respondent was required to
pay $1,313.91 plus a penalty to the estate for taking attorney fees prematurely.
        {¶ 16} The panel adopted the relevant stipulated violations as its
conclusions of law, concluding that respondent violated DR 7-102(A)(3)
(concealing or knowingly failing to disclose what an attorney is required by law to
reveal) and 7-106(A) (disregarding a standing rule of a tribunal).
                            D. The Ruth Bollmer Estate
        {¶ 17} In this matter, the panel also adopted the relevant stipulations as its
findings of fact. The situation was very similar to that of the Rose Weiss estate,
with respondent collecting $18,570.60 in attorney fees from the estate in 1997




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before the final account was prepared for filing, and without obtaining the
permission of the probate court. Respondent was required to pay $1,193.75 plus a
penalty to the estate for taking attorney fees prematurely.
         {¶ 18} The panel adopted the relevant stipulated violations as its
conclusions of law, concluding that respondent violated the same disciplinary
provisions as he had violated in the administration of the Rose Weiss estate.
                               E. The Adkins Matter
         {¶ 19} In this matter, the panel adopted the relevant stipulations as its
findings of fact and also entered several additional findings of fact.
         {¶ 20} On September 26, 1998, Sandra D. Adkins and Sharon Bryant
entered into a contract for Adkins to sell her bar to Bryant. Respondent did not
draft the contract.    Bryant was the client of respondent.         Adkins was not
respondent’s client.
         {¶ 21} Pursuant to the purchase agreement, $37,000 of the purchase price
of $74,000 was to be held in escrow until the liquor license was transferred and
until certain obligations were satisfied. Respondent agreed to act as escrow agent
and took possession of the $37,000. Respondent agreed to prepare all necessary
paperwork to accomplish the transfer of the liquor license from Adkins to Bryant.
Respondent told Adkins that the transfer would be completed in six to twelve
weeks.
         {¶ 22} Respondent did not open an escrow account on behalf of Adkins.
Instead, on September 30, 1998, respondent deposited the $37,000 into his IOLTA
account at Valley Central Savings Bank in Reading, Ohio. Before this deposit was
made into the IOLTA account, there was no money in the account. Respondent
also maintained a business account for his law practice and a personal checking
account held jointly with his wife at Valley Central Savings Bank.
         {¶ 23} Between October 1, 1998 and February 18, 1999, approximately
fifty-seven checks were written on respondent’s IOLTA account. Only a few of




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these checks involved the sale of the bar. Respondent himself wrote more than
twenty checks. Almost all of those checks were written to pay court costs,
settlements, and other charges involving matters that were not related to the sale of
the bar. During this period, respondent made deposits into the IOLTA account in
excess of $43,000 from other sources.
       {¶ 24} Respondent authorized more than fifteen transfers of funds from his
IOLTA account into either his business account or his personal account at Valley
Central Savings Bank between October 14, 1998 and February 10, 1999. During
this time, respondent’s office expenses were being paid from his business account
and his personal living expenses were being paid from his personal checking
account.
       {¶ 25} By late January 1999, the balance in respondent’s IOLTA account
was $234.84. In January 1999, Adkins inquired of respondent about the location
and status of the money. Respondent wrote Adkins a letter dated January 22, 1999,
regarding the funds, but did not give Adkins any information identifying the
account holding the escrowed funds, and did not give the balance of the account.
In this letter respondent stated, “I sincerely apologize that you believe that I have
absconded with your funds. This could not be further from the truth.” Respondent
also stated, “I assure you that there is nothing untoward, nor out of the ordinary
happening with those funds.” The panel found that respondent also threatened
Adkins in this letter, apparently based on respondent’s statement in the letter
suggesting that he would take legal action against Adkins if she continued to
question his handling of the funds, and his accompanying statement that “if I hear
that you have impugned my name and reputation in any way, I assure you this is a
nightmare that you do not want to become involved in.”
       {¶ 26} On February 17, 1999, the day respondent was notified of Adkins’s
grievance against him, the balance in the IOLTA account was $3,755.24.
Respondent on that day presented three cash advance checks on credit card




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accounts totaling $25,000 to Valley Central Savings Bank for deposit into the
IOLTA account. Valley Central Savings Bank refused to accept the checks after
determining that they would not be honored. The next day, respondent made two
cash deposits, one in the amount of $9,900 and one in the amount of $9,950, into a
bank account at Fifth Third Bank in the name of a business owned by respondent’s
wife. The money for these deposits came from a safe in respondent’s office.
       {¶ 27} Later that day, respondent presented Valley Central Savings Bank
with a check in the amount of $19,850 written on his wife’s business account at
Fifth Third Bank. This check did not clear until the next day. On February 18,
1999, respondent also deposited cash in an amount in excess of $9,000 at Valley
Central Savings Bank.
       {¶ 28} On February 18, 1999, respondent obtained from the manager of
Valley Central Savings Bank a letter confirming that the current balance in the
IOLTA account was $32,755.24. Respondent submitted this letter to relator along
with his initial response to Adkins’s grievance.
       {¶ 29} On February 23, 1999, relator told respondent that he should open a
separate account for the escrowed funds. On February 24, 1999, respondent
withdrew $29,705.24 from the IOLTA account at Valley Central Savings Bank and
opened a new IOLTA account, a new business account, and a separate account for
the escrow funds at Firstar Bank in Reading, Ohio. On March 4, 1999, respondent
obtained a cashier’s check payable to both Adkins and Bryant in the sum of
$32,190.21, and turned it over to them. This $32,190.21 was what remained of the
original escrow account amount of $37,000 after bills and expenses were paid
pursuant to the escrow agreement.
       {¶ 30} The panel concluded in this matter that respondent violated DR 1-
102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and
1-102(A)(6) (conduct adversely reflecting on a lawyer’s fitness to practice law).
The panel concluded that two other alleged violations, of DR 9-102(B)(3) and 9-




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102(B)(4), were not proven.
                                  II. Count Two
        {¶ 31} In this count, the panel adopted the relevant stipulations as its
findings of fact.
        {¶ 32} When relator’s complaint was filed, respondent and attorney
Christopher J. Bernard practiced law under the firm name of Sand, Stidham &
Bernard, even though respondent and Bernard have never been partners and are not
members of the same law firm. The two merely shared office space. The parties
stipulated that as recently as January 29, 1999, respondent continued to use
letterhead with “Sand, Stidham & Bernard” printed on the top.
        {¶ 33} The panel concluded in this count that respondent violated DR 2-
102(B) (using a firm name containing the name of one not a member of the firm)
and 2-102(C) (holding oneself out as having a partnership with one who is not a
partner).
        {¶ 34} After reviewing the mitigation evidence, the panel considered that
respondent grew up in a home with an alcoholic father and a clinically depressed
mother, and that respondent had served his country in the United States Air Force
during the Vietnam war era until his honorable discharge.         The panel also
considered the numerous physical ailments suffered by respondent, and
respondent’s clinical depression, which respondent dated to the 1990 death of his
law partner, mentor, and friend, Robert Sand.
        {¶ 35} The panel recognized that respondent accepted fault for his problems
and acknowledged responsibility for his acts, and that respondent attributed many
of his ethical lapses to his depression and to the increased workload respondent
assumed upon the death of Sand. Furthermore, the panel considered respondent’s
assertions that he had “turned the corner” regarding the depression and that he had
modified office practices to prevent future ethical problems. However, the panel
expressed concerns about the truthfulness and candor of respondent in the Caldwell




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matter and in the Adkins matter. The panel concluded that in the Adkins matter,
respondent acted with the intent of misleading relator about his wrongdoing, and
reasoned that respondent’s depression “does not prohibit him from distinguishing
right from wrong.”      The panel recommended that respondent be indefinitely
suspended from the practice of law. The board adopted the findings, conclusions,
and recommendation of the panel.
                                __________________
        Sandra P. Kaltman and David T. Croall, for relator.
        H. Fred Hoefle, for respondent.
                                __________________
        ALICE ROBIE RESNICK, J.
        {¶ 36} We adopt the findings of fact and conclusions of law of the board,
but not its recommendation. Respondent principally takes issue with two aspects
of the board’s report, and so objects to the board’s findings of fact, conclusions of
law, and recommended sanction. Respondent’s major points of contention involve
(1) some of the board’s findings of fact and conclusions of law in the Adkins matter,
particularly the board’s conclusion that he violated DR 1-102(A)(4) by engaging in
willful deceit, and (2) his position that the board failed to take all mitigating factors
into account, particularly the effects of his depression, in recommending an
indefinite suspension as a sanction.
        {¶ 37} Issues relating to respondent’s depression color our consideration of
both of his major points of contention.
        {¶ 38} In disciplinary cases, the relator must prove that the respondent
committed the alleged violations by clear and convincing evidence. See Gov.Bar
R. V(6)(J); Ohio State Bar Assn. v. Reid (1999), 

85 Ohio St.3d 327

, 

708 N.E.2d 193

, paragraph two of the syllabus. Respondent argues that relator did not fully
meet its standard of proof.
        {¶ 39} With regard to the board’s conclusion that respondent violated DR




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1-102(A)(4) in the Adkins matter, we accept the findings of fact and also this
accompanying conclusion of law, but with a caveat. When respondent’s depression
is taken into account, respondent’s assertions that he ignored all the warning signs
that would have alerted a reasonable attorney that something was seriously wrong
in his handling of the escrow account do seem somewhat credible.
       {¶ 40} Respondent testified that he simply tossed all of his bank statements
aside without opening them since sometime in 1996, so that he was totally unaware
of the huge problems that had arisen in his handling of the money at issue.
Respondent further testified that he had an understanding with Valley Central
Savings Bank that if one of his several different accounts there ran short of funds,
bank employees would call him and get his authorization to shift the money around
to the fund that needed it. Respondent testified that he routinely gave the approval
without realizing that it often was the IOLTA account that was being depleted to
raise the balances in other accounts. Respondent stated that he made deposits of
more than $43,000 into the IOLTA account from sources other than Adkins, and
further stated that his safe at all times contained enough cash to cover Adkins’s
escrow amount. Therefore, respondent claims, Adkins, who was never his client,
was never in any danger of losing the money.
       {¶ 41} However, after thoroughly reviewing the entire record, we can
appreciate how the panel members could have become convinced that respondent’s
testimony that he ignored all the warning signs in the Adkins matter was lacking in
credibility. The severity of the problems in the Adkins matter accelerated to a point
that, even if one accepts at face value respondent’s testimony that he committed no
intentional misconduct but was merely negligent, the degree of obliviousness to the
problems became exacerbated so that it could be viewed as the equivalent of
intentional deceit. In addition, when Adkins inquired about the funds in the
account, respondent told her, “I assure you that there is nothing untoward * * *
happening with these funds,” apparently without even checking into the matter at




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that time to verify the truth of what he was stating. Considering that the board’s
finding of a violation of DR 1-102(A)(4) in this situation was effectively a mixed
determination of fact and law, and that the panel had an opportunity to evaluate the
credibility and demeanor of the witness through his actual testimony, we will not
second-guess the panel‘s and board’s determinations.
         {¶ 42} Nevertheless, we are impressed that respondent’s battle with the
debilitating effects of his depression is genuine, and recognize that the possibility
remains that respondent actually was subjectively unaware of the numerous
warning signs all around him that normally would have indicated problems with
the IOLTA account.             Respondent acknowledged at the hearing that when
everything came to light, he knew that he had “totally screwed it up” in handling
the funds. Due to his depression, respondent was not functioning as a reasonable
attorney in his approach to this entire matter, but at times was paralyzed into
inaction by his depression. When, however, he did become aware of the magnitude
of the problems, he took immediate steps to correct them.
         {¶ 43} In sum, although we do not second-guess the board’s finding of a
violation of DR 1-102(A)(4) in the Adkins matter, the circumstances surrounding
that violation affect our evaluation of what sanction is appropriate.1



1. We note at this point that, although the board also found that respondent was not totally truthful
and candid in the Caldwell matter, the record appears to support respondent’s contentions that once
he realized that he had earlier had a mistaken impression regarding the events in that episode, he
recanted his previous resistance to Caldwell’s claims against him, admitted his mistake, and settled
the claims for more than they may have been worth. Since respondent stipulated to all four
violations charged in that matter, and since the board adopted the stipulated facts as its findings of
fact without adding any further findings, respondent does not directly challenge the findings of fact
and conclusions of law with respect to the Caldwell matter, but takes issue with the board’s comment
that he was less than truthful.
          In addition, we also recognize that the board’s finding that respondent attempted to mislead
relator in the investigation of the Adkins matter is similarly based on the board’s interpretation of
events that could have been viewed differently. In the same way that we accept the board’s findings
of fact and conclusions of law in the Adkins matter, we do not separately address or specifically
agree with respondent’s contention that the board misinterpreted the record in reaching the
conclusion that respondent intended to mislead relator.




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       {¶ 44} Respondent contends that the board, in recommending an indefinite
suspension, did not give enough weight to all the mitigating factors present,
including his depression. We agree that there are significant mitigating factors.
Respondent was cooperative with relator, allowing the parties to achieve extensive
stipulations of fact in the matters at issue. Respondent also stipulated to most of
the violations charged by relator. Respondent had an exemplary record in the
military service of this country. Many letters attesting to respondent’s character
and standing in the legal community were supplied to the board by respondent from
judges and lawyers who had come into contact with respondent in his practice of
law. Respondent has no prior disciplinary history. Respondent shows remorse for
what he has done, takes responsibility for his actions, and has changed his office
and accounting practices to prevent future problems. Respondent has suffered from
many physical ailments during the time of the events at issue.
       {¶ 45} In addition, as stated above, we are convinced that respondent’s
depression had a severe and debilitating effect on his ability to function as an
attorney. The depression manifested itself most directly in the Adkins matter, but
also appears to have played a role in some of the other matters, notably the Feltner
matter and the Caldwell matter. The stipulations of fact, particularly in the Adkins
matter, support respondent’s position on the severity of the depression.
       {¶ 46} Respondent’s treating psychiatrist, J. Stephen Meredith, M.D.,
provided testimony and a letter detailing respondent’s condition that was entered
into evidence by respondent at the disciplinary hearing. Dr. Meredith diagnosed
respondent with dysthemia and major depression—recurrent.            Dr. Meredith
explained that respondent in his depression has experienced feelings of guilt, loss
of energy, distraction, preoccupation, anxiety, feelings of worthlessness, crying
spells, suicidal thoughts, social withdrawal, and sleep impairment. Dr. Meredith
stated that depression can impair the ability to follow up or to do needed things,
and that one who suffers from depression sometimes is unable to do what to




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observers appear to be very simple tasks.         Dr. Meredith also testified that
respondent often did not feel able to take care of details, so that respondent would
allow routine matters to go unattended, and that problems would worsen while
respondent put off dealing with them.
       {¶ 47} Dr. Meredith stated that he believed that respondent is fit to practice
law, and that there had been recent improvements in respondent’s condition. He
also stated that respondent needs continuing treatment, and that respondent’s
prognosis for recovery is good.
       {¶ 48} Respondent testified at the hearing about his struggle with
depression, detailing his inability to get any quality sleep, and graphically
describing his feelings of hopelessness and worthlessness, as well as his despair,
exhaustion, and anxiety. Respondent stated that he is now “dealing with it,” in part
due to recent successes with medications. He explained that he still has depression
symptoms, including problems sleeping, but that he feels that his recent treatment
causes him to be optimistic.
       {¶ 49} At the same time that we acknowledge the severity of respondent’s
depression, we cannot overlook the way that depression manifested itself in the
multiple disciplinary violations respondent has committed. Even though it does not
appear that anyone was seriously hurt by respondent’s ethical violations, his fitness
to practice law has been called into question.
       {¶ 50} In balancing all the considerations, we conclude that a two-year
suspension, with the second year of the suspension stayed, is the appropriate
sanction. In addition, respondent must submit to a monitoring program established
by relator, including the terms we detail below, and must satisfy the conditions we
impose as a prerequisite to resuming the practice of law.
       {¶ 51} Even though Dr. Meredith stated that respondent was making
progress with his treatment, Dr. Meredith also expressed an opinion that
respondent’s recovery might have progressed more rapidly in the past if respondent




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had scheduled more treatment visits, and if respondent had devoted more time to
his treatment. As a part of the monitoring obligations we impose, we require
relator, respondent, and respondent’s treating therapist (presumably Dr. Meredith)
to agree upon a treatment schedule that requires respondent to undergo more
consistent treatment than he has in the past. In addition, we impose the further
requirement that respondent’s treating therapist submit reports to relator, on a
schedule established by relator, concerning the course of treatment.
       {¶ 52} As a prerequisite to respondent’s resumption of the practice of law
at the end of the first year of the suspension, we require respondent to comply with
the monitoring conditions, and we require respondent to submit evidence to the
court establishing that he is at that time managing the depression and is capable of
returning to the practice of law. If these requirements are fulfilled, and respondent
returns to the practice of law, we require the monitoring to continue during the
second year of respondent’s suspension. Costs taxed to respondent.
                                                             Judgment accordingly.
       DOUGLAS, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., PFEIFER and COOK, JJ., dissent.
                               __________________
       Cook, J., dissenting.
       {¶ 53} I agree with the majority’s decision to adopt the findings and
conclusions of the board, but I respectfully dissent from the majority’s decision to
impose a more lenient sanction than the board recommended. I do not believe that
the majority should have assigned weight to respondent’s depression as a mitigating
circumstance in regard to the disciplinary violations that respondent committed in
the Adkins matter. Depression symptoms of inattention or unawareness should not
bear any mitigating weight in the application of the appropriate sanction in light of
the explicit deceit and threats contained in respondent’s letter to Adkins.
       {¶ 54} The ABA Standards for Imposing Lawyer Sanctions provide that




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before aggravating or mitigating circumstances are considered, disbarment is
appropriate for disciplinary violations of the character that respondent committed
in the Adkins matter. See ABA Center for Professional Responsibility, Standards
for Imposing Lawyer Sanctions (1991 and Amend.1992), Standard 5.1. Under the
ABA Standards, “[d]isbarment is generally appropriate when * * * a lawyer
engages in * * * intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s fitness to
practice.” Standard 5.1.
       {¶ 55} After failing to open an escrow account on behalf of Adkins as he
had agreed to do, and after mishandling the funds that were to be escrowed,
respondent answered Adkins’s inquiry (about the location and status of the funds)
with a misleading and threatening letter. For these acts, the panel and board
determined that respondent engaged in conduct involving dishonesty, fraud, deceit,
or misrepresentation in violation of DR 1-102(A)(4). A lawyer who engages in
deceitful or dishonest conduct “has violated one of the most basic professional
obligations to the public, the pledge to maintain personal honesty and integrity.”
Standard 5.1, Commentary.
       {¶ 56} My initial determination of disbarment as the appropriate sanction
would give way to the board’s lesser recommended sanction—indefinite
suspension—due to the presence of several mitigating factors in this case.
Respondent’s military service in Vietnam and his honorable discharge from the
armed services attest to his positive character and reputation. His cooperative
attitude toward the disciplinary proceedings, lack of prior disciplinary record, and
effort to modify his questionable office practices are additional mitigating factors
recognized in both the ABA Standards and the Board of Commissioners’ Proposed
Guidelines for Imposing Lawyer Sanctions. Cf. ABA Standards, supra, Standard
9.32; Board of Commissioners on Grievances and Discipline, Proposed Rules and
Regulations Governing Procedure on Complaints and Hearings, Section 10,




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Guidelines for Imposing Lawyer Sanctions, 

87 Ohio St.3d xliv

-xlvi.
       {¶ 57} I would, therefore, accept the board recommendation to indefinitely
suspend respondent rather than disbar him. The majority’s decision to credit
additional mitigation centers on its willingness to accept respondent’s depression
as an explanation for respondent’s behavior in the Adkins matter. The majority
concludes that due to respondent’s depression, “the possibility remains that
respondent actually was subjectively unaware of the numerous warning signs all
around him that normally would have indicated problems with the IOLTA
account.” (Emphasis added.)
       {¶ 58} The tone and language of respondent’s letter, however, belie the
majority’s assertion that the respondent could have been “subjectively unaware” of
what was happening. Respondent explicitly assured Adkins that there was nothing
“untoward” or “out of the ordinary” happening with the funds, and explicitly
threatened Adkins with a “nightmare” if respondent felt that Adkins was impugning
his name or reputation.
       {¶ 59} I do not suggest that clinical depression may never constitute a
mitigating factor under appropriate circumstances. And like the majority I believe
that respondent’s battle with depression is genuine. However, due to the tone and
content of the Adkins letter, I do not believe that respondent was “paralyzed into
inaction” or was “subjectively unaware” of what was happening when he
committed the disciplinary violations in the Adkins matter.
       {¶ 60} For these reasons,      I would have        accepted the board’s
recommendation to indefinitely suspend respondent.
       MOYER, C.J., and PFEIFER, J., concur in the foregoing dissenting opinion.
                              __________________




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