Ohio State Bar Assn. v. Resnick , 128 Ohio St. 3d 56 ( 2010 )

[Cite as Ohio State Bar Assn. v. Resnick, 128 Ohio St.3d 56, 2010-Ohio-6147.]
OHIO STATE BAR ASSOCIATION v. RESNICK.
[Cite as Ohio State Bar Assn. v. Resnick, 128 Ohio St.3d 56, 2010-Ohio-6147.]
Attorney misconduct — Convictions of possessing cocaine, resisting arrest, and
disrupting public service — Indefinite suspension.
(No. 2010-1188 — Submitted September 15, 2010 — Decided
December 21, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 06-051.
__________________
Per Curiam.
{¶ 1} Respondent, Ramie Ann Resnick, a.k.a. Ramie Reisman Resnick
of Cleveland, Ohio, Attorney Registration No. 0023382, was admitted to the
practice of law in Ohio in 1984.
{¶ 2} Respondent was convicted of possession of cocaine, a fifth-degree
felony, in the Butler County Common Pleas Court on February 14, 2006, and
placed on community-control sanctions. As a result of that conviction, this court
imposed an interim suspension of her law license, In re Resnick, 112 Ohio St.3d
1432, 2007-Ohio-151, 860 N.E.2d 111, and relator, Ohio State Bar Association,
charged her with violating the Code of Professional Responsibility.
{¶ 3} On October 19, 2006, respondent was arrested again and was
subsequently indicted in the Cuyahoga County Common Pleas Court for multiple
counts of violating R.C. 2909.04, disrupting public service, a felony of the fifth
degree, and one count of R.C. 2921.33, resisting arrest, a misdemeanor of the
second degree. On June 27, 2007, she entered guilty pleas to resisting arrest and
one count of disrupting public service, and in August 2007, she was sentenced to
community-control sanctions.
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{¶ 4} On November 21, 2007, relator filed an amended complaint with
the Board of Commissioners on Grievances and Discipline setting forth two
counts that detail the events in Butler County and Cuyahoga County. A panel of
the board began a formal hearing on the amended complaint in Cleveland on
September 25, 2009. That hearing included the testimony of respondent’s treating
psychiatrist, Cathleen Cerny, M.D., but was continued by agreement of the parties
in order to have respondent submit to an independent psychiatric examination by
Arthur L. Rosenbaum, M.D. On January 27, 2010, the panel received a report
from Dr. Rosenbaum regarding his evaluation of respondent. On April 8, 2010,
the panel resumed its hearing and respondent testified.
{¶ 5} The panel and board found that respondent had violated DR 1-
102(A)(3) (a lawyer shall not engage in illegal conduct involving moral
turpitude), 1-102(A)(4) (a lawyer shall not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 1-102(A)(6) (a lawyer shall
not engage in conduct that adversely reflects on the lawyer’s fitness to practice
law) as charged in Count I, and DR 1-102(A)(6), as charged in Count II, and
recommended that respondent be indefinitely suspended from the practice of law
on conditions. We adopt the board’s findings of fact and misconduct and the
recommended sanction.
Misconduct
Count I — The Butler County Incident
{¶ 6} On February 17, 2005, respondent traveled from Cleveland to
Oxford, Ohio, for a court appearance. Respondent traveled in her car, driven by a
male companion, Daryl Taylor. Respondent had previously represented Taylor in
a criminal case, and it is undisputed that she knew that Taylor had previously
been convicted of drug-related crimes.
{¶ 7} While en route to the court, respondent’s vehicle ran out of gas. A
police officer took respondent to court while Taylor remained with the vehicle.
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Taylor abandoned the car, and another officer had the car towed. Before the car
was towed, however, the officer conducted an inventory search. During the
search, police discovered a change purse in the glove compartment that contained
a page of advertisements typically found in legal publications. A small amount of
cocaine was found inside the folded page of advertisements, as was a straw
containing white residue. Police also found a small amount of cocaine in a
makeup bag behind the driver’s seat.
{¶ 8} These facts formed the basis of the charge of cocaine possession in
the Butler County Common Pleas Court. Respondent was convicted of that
offense.
{¶ 9} Despite that conviction and her admitted occasional use of cocaine,
respondent maintains that the cocaine found in her vehicle was not hers. And at
times during the hearing, she suggested that she is not guilty of the crime of
possessing cocaine. In her view, her error was simply that she had used poor
judgment in having Taylor drive her.
{¶ 10} In defense of her actions, respondent asserts that she was forced to
have Taylor drive her to Oxford because she was under the influence of asthma
medications and had been ordered by her physician not to drive, that she was
unable to have the court hearing continued, and that Taylor was the only person
she could find to drive her. She concedes that having him drive her was
“extremely ill advised” and that she had used “very poor judgment.” And
although she steadfastly denies that the cocaine belonged to her, she does admit
that the makeup bag was hers.
{¶ 11} As noted above, the board found that respondent’s misconduct
related to the events in Butler County constituted violations of DR 1-102(A)(3),
(4), and (6).
Count II — The Cuyahoga County Incident
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{¶ 12} On October 19, 2006, respondent called 9-1-1 to report that her car
had been stolen. Respondent avers that she became agitated because she did not
think the police were responding appropriately to her report of the crime. She
testified that she did not have a good relationship with the police department at
the time and that she had called the police at least three times that day pertaining
to her stolen car. Although the panel was not presented with any significant
evidence of the other circumstances surrounding this event, it is undisputed that
respondent was indicted subsequently for nine counts of disrupting public service
in violation of R.C. 2909.04, a felony of the fifth degree, and resisting arrest in
violation of R.C. 2921.33, a misdemeanor of the second degree.
{¶ 13} During respondent’s appearance in court on the disrupting-public-
service and resisting-arrest charges, the judge was so concerned about
respondent’s demeanor and erratic behavior that he ordered that she undergo a
mental-competency evaluation. She was held for approximately 60 days at
Northcoast Behavioral Healthcare Center (“the treatment facility”) in Cleveland.
{¶ 14} After respondent was found competent, she pleaded guilty in the
Cuyahoga County Common Pleas Court to one count of disrupting public service
and one count of resisting arrest.
{¶ 15} Although there was much evidence submitted at the hearings
regarding respondent’s mental health, we are still unsure whether she requires
treatment. Respondent was diagnosed with bipolar disorder during her
hospitalization at the treatment facility. But Dr. Cerny testified that she believes
that respondent does not have bipolar disorder and that respondent’s behavior was
caused by the use of illegal and/or prescription drugs.
{¶ 16} Notably, there is no evidence (1) that respondent has experienced
similar symptoms since her time at the treatment facility, (2) that she continues to
use cocaine or other illegal drugs, or (3) that she misuses prescription drugs. And
Dr. Cerny testified that she does not expect respondent to have another manic
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episode unless she abuses drugs. Dr. Cerny explained that she had not referred
respondent for substance-abuse treatment because respondent denied using drugs
after her discharge from the treatment facility and because Dr. Cerny saw no
evidence of drug abuse by respondent. And according to respondent, she has
been evaluated for substance abuse in the past and been told that she did not have
a substance-abuse problem.
{¶ 17} The panel and board found that respondent’s misconduct in
Cuyahoga County constituted a violation of DR 1-102(A)(6).
Sanction
{¶ 18} “When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (‘BCGD Proc.Reg.’). Disciplinary Counsel v. Broeren, 115 Ohio St.3d
473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary case is
unique, we are not limited to the factors specified in the rule but may take into
account ‘all relevant factors’ in determining what sanction to impose. BCGD
Proc.Reg. 10(B).” Ohio State Bar Assn. v. Peskin, 125 Ohio St.3d 244, 2010-
Ohio-1811, 927 N.E.2d 598, ¶ 11.
{¶ 19} The panel and board found as aggravating factors that respondent
acted with a dishonest or selfish motive and that she had been convicted of
multiple offenses. See BCGD Proc.Reg. 10(B)(1)(b) and (d). In mitigation, the
panel and board found that respondent did not have a prior disciplinary record,
that she exhibited a cooperative attitude toward the proceedings, and that she had
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been under an interim suspension since January 18, 2007, as a result of the felony
conviction in Butler County. See BCGD Proc.Reg. 10(B)(2)(a), (d), and (f).
{¶ 20} Although relator sought respondent’s disbarment, the panel and
board recommended that respondent be indefinitely suspended from the practice
of law in Ohio and that her suspension be made retroactive to the date of her
interim felony suspension, January 18, 2007. The panel and board recommended
further that should respondent “reapply to resume her law practice, [(1) she must]
provide proof that she participated in a program of ‘intensive and long term
therapy’ (as recommended by Dr. Rosenbaum in his evaluation) resulting in a
report that [she] is mentally fit to resume the practice of law,” (2) she must show
proof that she entered into a contract with the Ohio Lawyers Assistance Program
(“OLAP”) “with respect to her chemical dependence and mental health and she
must show compliance with that contract,” and (3) she must submit to a law-
practice monitor.
{¶ 21} The recommendation by the panel and board was supported by the
report of Dr. Rosenbaum, who, like Dr. Cerny, found no evidence that respondent
is currently suffering from a mental disability. However, Dr. Rosenbaum noted
that respondent’s failure to keep her attorney-registration record up to date
suggests that she might have some issues that would affect her fitness to manage a
law practice. Thus, although he found no evidence of current mental-health issues
or substance abuse, he observed that “[o]nly in an intensive and long term
therapy” could there be a determination of respondent’s mental health.
{¶ 22} Although we are aware of the conflicting evidence of whether
respondent has a substance-abuse problem or mental-health issues, the record
establishes the need for ensuring that any such problems or issues are treated
before she resumes the practice of law. We recognize that respondent has been
cooperative with the disciplinary process, but we are concerned that there are
indications that she may not be fully compliant with treatment plans. For
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example, although she kept appointments with her treating physicians
immediately after her discharge from the treatment facility, she later repeatedly
missed scheduled appointments with Dr. Cerny. Similarly, even though there is
no evidence before us of current substance abuse, respondent did admit that she
has used cocaine in the past, she was convicted of possession of cocaine, and her
use or misuse of prescription drugs may have at least played a part in her inability
to properly function when she faced charges in the Cuyahoga County courtroom.
Thus, there is an obvious need to ensure that respondent does not have untreated
substance-abuse and mental-health issues if and when she is reinstated to the
practice of law.1 The primary purpose of disciplinary sanctions is not to punish
the offender but to protect the public. Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 33. We impose the conditions in
this case with that purpose in mind.
{¶ 23} Relator sought disbarment of respondent. Here, however, the
evidence suggests strongly that respondent’s drug use led to the ethical breaches
at issue. In such cases, we tailor the sanctions imposed to assist in and monitor
the attorney’s recovery. Cincinnati Bar Assn. v. Lawson, 119 Ohio St.3d 58,
2008-Ohio-3340, 891 N.E.2d 749, ¶ 73, citing Cincinnati Bar Assn. v.
Washington, 109 Ohio St.3d 308, 2006-Ohio-2423, 847 N.E.2d 435, ¶ 9.
{¶ 24} We therefore accept and agree with the recommendation of the
board, to which no objection was filed. The question of respondent’s ability to
manage her affairs and the affairs of her clients is particularly salient here, given
respondent’s admitted poor judgment and her expressed desire to return to her
work as a sole practitioner in criminal law.
1. Although the panel did not mention it in its report, respondent admitted to one of her mental-
health counselors that she had been convicted of driving while under the influence of alcohol in
1997 and again in 1999.
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{¶ 25} Accordingly, respondent is hereby suspended indefinitely from the
practice of law in Ohio, and the suspension is retroactive to the date of her felony
conviction, January 18, 2007. Any petition for reinstatement must include (1)
proof that respondent was evaluated by OLAP for chemical dependency and
mental-health issues and that, if recommended by OLAP, she entered into a
contract with OLAP and is in compliance with the contract and (2) a report from a
qualified mental-health-care professional certifying that respondent is competent
to resume the practice of law. Also, if respondent is reinstated, she must submit
to a law-practice monitor pursuant to Gov.Bar R. V(9).
Judgment accordingly.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Eugene P. Whetzel and Carla J. Cannon, for relator.
Gary H. Levine, for respondent.
______________________
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