Cleveland Metropolitan Bar Association v. Lemieux , 139 Ohio St. 3d 320 ( 2014 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Lemieux, Slip Opinion No. 2014-Ohio-2127.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-2127CLEVELAND METROPOLITAN BAR ASSOCIATION v. LEMIEUX.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as Cleveland Metro. Bar Assn. v. Lemieux,
Slip Opinion No. 2014-Ohio-2127.]
Attorney misconduct, including failing to act with reasonable diligence in
representing clients, failing to keep clients informed, engaging in conduct
prejudicial to the administration of justice, and failing to respond to a
disciplinary authority during an investigation—Indefinite suspension.
(No. 2013-1246—Submitted October 9, 2013—Decided May 27, 2014.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-095.
____________________
Per Curiam.
{¶ 1} Respondent, John Louis Lemieux of Gates Mills, Ohio, Attorney
Registration No. 0073494, was admitted to the practice of law in Ohio in 2001. In
October 2011, a probable-cause panel of the Board of Commissioners on
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Grievances and Discipline certified a four-count complaint1 filed by relator,
Cleveland Metropolitan Bar Association, against Lemieux. The complaint
alleged that while abusing drugs and alcohol, Lemieux accepted payment from
four clients and then failed to perform their legal work, failed to reasonably
communicate with them, and failed to cooperate in the resulting disciplinary
investigations.
{¶ 2} In December 2011, we granted relator’s motion for an interim
remedial suspension, finding that Lemieux had engaged in conduct that violates
the Ohio Rules of Professional Conduct and posed a substantial threat of serious
harm to the public. 130 Ohio St.3d 1501, 2011-Ohio-6674, 958 N.E.2d 962.
{¶ 3} Relator amended its complaint in June 2012, adding two counts: one
alleging that Lemieux had engaged in misconduct with respect to an additional
client and a second alleging that he had failed to deposit unearned payments from
clients into a client trust account.
{¶ 4} The parties submitted numerous exhibits and stipulated to many
facts, and Lemieux admitted some of the alleged rule violations with respect to
Counts One through Four and Count Six of the amended complaint. At the
January 2013 hearing, the panel heard testimony from Lemieux, three of the
grievants, and two physicians trained in addiction medicine, one of whom is
Lemieux’s treating physician.
{¶ 5} The panel made findings of fact and determined that Lemieux
committed the conduct charged in Counts One through Four and Count Six but
unanimously voted to dismiss Count Five based on the insufficiency of the
1
The original complaint actually listed five counts, but the fifth count alleged the aggravating
factors. When the complaint was later amended to add two counts, those counts were numbered
Counts Five and Six, and the aggravating factors were moved to Count Seven.
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evidence.2 After considering the applicable aggravating and mitigating factors
and the sanctions we have imposed for comparable misconduct, the panel
recommended that we impose an indefinite suspension with conditions for
reinstatement, which it asserts will adequately protect the public from future
misconduct without eroding Lemieux’s commitment to recovery. The board
adopted the panel’s findings of fact and misconduct and its recommended
sanction. Neither party filed objections to the board’s report.
{¶ 6} We adopt the board’s findings of fact and misconduct and
indefinitely suspend Lemieux from the practice of law in Ohio.
Misconduct
{¶ 7} Lemieux abused drugs and alcohol for years, and he first entered
into a contract with the Ohio Lawyers Assistance Program (“OLAP”) in late 2001
or early 2002, though he rarely complied with it. He entered into a detoxification
program in 2009 and signed a new three-year chemical-dependency contract with
OLAP in June 2009.
{¶ 8} In the spring of 2010, near the time that the misconduct at issue in
this case began, he entered another detoxification program. And in the summer of
that year, he entered a 30-day inpatient-treatment program and signed another
three-year OLAP contract. He entered another inpatient rehabilitation program in
January 2011.
2
In its report, the panel stated its intention to dismiss the alleged violation in Count Five of
relator’s complaint. Gov.Bar R. V(6)(G), which permits a unanimous panel of the board to order
the dismissal of a count without referring it to the board or this court for review, requires the panel
to provide notice to counsel of record and other interested parties. The record in this case does not
establish that the panel complied with the notice requirements of that rule. Instead, the panel
certified its findings of fact and recommendations to the board in accordance with Gov.Bar R.
V(6)(H) and (I). Because the board did not order dismissal and provide the notices required by
Gov.Bar R. V(6)(G), we treat the purported dismissal as a recommendation that Count Five be
dismissed. See, e.g., In re Complaint Against Harper, 77 Ohio St.3d 211, 216, 673 N.E.2d 1253(1996); Disciplinary Counsel v. Doellman, 127 Ohio St.3d 411, 2010-Ohio-5990, 940 N.E.2d 928,
¶ 31-33. We accept the panel’s recommendation and dismiss Count Five.
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{¶ 9} The Cuyahoga County Probate Court declared Lemieux legally
incompetent and appointed a legal guardian to handle his affairs in February
2011. The court terminated the guardianship in April 2011, following his release
from inpatient treatment. Despite his extensive treatment, Lemieux has suffered
multiple relapses, including an overdose in May 2011 and a failed drug screen in
October 2011.
Count One—The Hubbard Matter
{¶ 10} Michael Hubbard was arrested on September 7, 2010, and charged
with a felony. After obtaining docket information from the Cuyahoga County
Clerk of Courts, Lemieux sent Hubbard a solicitation letter in which he referred to
his solo practice as a firm with multiple skilled and experienced attorneys.
{¶ 11} Hubbard’s mother retained Lemieux on September 14, 2010, and
paid $1,000 of his quoted fee of $2,500. She paid the remaining $1,500
approximately six weeks later. Hubbard remained incarcerated throughout the
representation.
{¶ 12} Lemieux appeared at Hubbard’s arraignment and several pretrial
hearings, but requested a continuance at each pretrial to conduct further
discovery. He missed the final pretrial, scheduled for November 4, 2010, but the
court granted Hubbard’s request to reschedule it for the following day. Lemieux
attended the rescheduled pretrial, but obtained a continuance so that Hubbard
could undergo a competency evaluation.
{¶ 13} Hubbard’s mother testified that during one of her meetings with
Lemieux at his office, he had spoken with slurred speech and walked off balance
and she had advised him to go home. She also testified that he had not returned
her phone calls on several occasions. The court permitted Lemieux to withdraw
from Hubbard’s case on December 7, 2010, and appointed another attorney to
complete the representation.
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{¶ 14} Lemieux stipulated that Hubbard had requested a refund of her
$2,500 payment and that he had not refunded any portion of her fees. He admits
that the fees should be returned. He also stipulates that he failed to respond to a
certified letter from relator inquiring about Hubbard’s grievance.
{¶ 15} The board found that this conduct violated Prof.Cond.R. 1.2(a)
(requiring a lawyer to abide by a client’s decisions concerning the objectives of
representation and to consult with the client as to the means by which they are to
be pursued), 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with his
client about the means by which the client’s objectives are to be accomplished),
1.4(a)(3) (requiring a lawyer to keep his client reasonably informed about the
status of a matter), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable
with reasonable requests for information from his client), 1.4(b) (requiring a
lawyer to explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation), 1.5(a) (prohibiting a
lawyer from making an agreement for, charging, or collecting an illegal or clearly
excessive fee), 7.1 (prohibiting a lawyer from making or using false, misleading,
or nonverifiable communication about the lawyer or the lawyer’s services), 8.1(b)
(prohibiting a lawyer from knowingly failing to respond to a demand for
information by a disciplinary authority during an investigation), 8.4(d)
(prohibiting a lawyer from engaging in conduct that is prejudicial to the
administration of justice), and 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law) and
Gov.Bar R. V(4)(G) (prohibiting a lawyer from neglecting or refusing to assist in
a disciplinary investigation). We adopt these findings of fact and misconduct.
Count Two—The Heise and Giguere Matters
{¶ 16} Sashewa Giguere was arrested in March 2010 in connection with
the alleged abuse of one of her children by someone Giguere knew. She received
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a direct-mail advertisement from Lemieux that was identical to the advertisement
discussed in Count One. In late March, Giguere’s mother, Jennifer Heise,
retained Lemieux to represent Giguere in her criminal case and to represent her
(Heise) in her effort to obtain custody of Giguere’s four children. Lemieux
quoted Heise a fee of $3,000, which Heise assumed meant $1,500 for each matter.
She paid him a total of $2,760.
{¶ 17} Lemieux appeared at two pretrial hearings on behalf of Giguere
and requested a continuance each time. He failed to appear at a May 2010 pretrial
hearing and did not give Giguere a reason for his absence. Giguere eventually
entered into a plea agreement, and Lemieux said that he would file a motion for
early release on her behalf, but never did so. Consequently, Giguere filed the
motion pro se, but the court denied it.
{¶ 18} Although Lemieux said that he would initiate Heise’s custody
matter, he stopped returning her phone calls and failed to file the necessary
paperwork. Heise commenced the action pro se, but it was dismissed by the
court. While she currently has custody of three of her grandchildren, the fourth
child is in the child’s father’s custody.
{¶ 19} Lemieux failed to respond to relator’s first letter of inquiry
regarding Heise’s grievance, and he sent a handwritten response to the second
letter, denying any misconduct.
{¶ 20} The board found that Lemieux’s conduct in the Giguere and Heise
matters violated Prof.Cond.R. 1.3, 1.4(a)(2), 1.4(a)(4), 1.5(a), 7.1, 8.1(b), 8.4(d),
and 8.4(h) and Gov.Bar R. V(4)(G). We adopt these findings of fact and
misconduct.
Count Three—The Pritchett Matter
{¶ 21} Arnell Pritchett was arrested in August 2010. His fiancée, Shasta
Philpott, received a solicitation letter from Lemieux and asked him to represent
Pritchett. She informed him that she was not employed and would need to get the
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money for his retainer. She made five payments over the next five weeks, totaling
$1,350. To collect the payments, Lemieux either met Philpott at her car or had
her meet his friend Ken Watson at WalMart.
{¶ 22} Lemieux obtained at least six continuances of pretrials during his
brief representation of Pritchett, without offering any explanation to his client,
who was jailed throughout the representation. Philpott testified that she had
called Lemieux periodically to let him know that she had money for him but had
not discussed the case with him during these calls. And the one time that she
called Lemieux (with Pritchett also on the line, from jail) to get an update on the
case and find out why he had not visited Pritchett in jail, Lemieux flew into a
rage, and it became clear to her that he just wanted her money.
{¶ 23} Sensing that something was not right, Philpott made an
unannounced visit to Lemieux’s office, where she met attorney Val Schurowliew,
who shared office space with Lemieux. He indicated to her that Lemieux was
using drugs and that she would not get her money back. Although Lemieux did
not respond to relator’s first letter of inquiry, he did submit a written response to
the second inquiry. He stipulates that he did not complete Pritchett’s
representation and that Philpott is entitled to a full refund of her fee.
{¶ 24} The board found that Lemieux’s conduct in the Pritchett matter
violated Prof.Cond.R. 1.3, 1.4(a)(4), 1.5(a), 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar
R. V(4)(G). We adopt these findings of fact and misconduct.
Count Four—The Orr Matter
{¶ 25} Maxie Orr was arrested in August 2010. On October 6, 2010, Orr’s
mother, Lachelle Pearl, paid Lemieux $1,000 to handle his case. Pearl reported
that Lemieux was jittery during the initial consultation, and Lemieux has
stipulated that he was abusing drugs and alcohol throughout the time he
represented Orr. On October 17, 2010, he telephoned Pearl to discuss the case
and used profanities. The next day, he called again, requesting more money and
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telling Pearl, with slurred speech, that he was “working his ass off.” Pearl asked
Lemieux for an itemization of the work he had performed on the case, and he told
her that he would provide the list to get her “out of [his] hair.” When Pearl asked
him why he was speaking to her in that manner, he responded, “Yeah, yeah,” and
hung up the telephone. When she went to his office on October 19, 2010,
Schurowliew, the other attorney who rented space in the same office, informed
her that Lemieux had a drug and alcohol problem. Pearl also discovered that
Lemieux had never entered an appearance in Orr’s case.
{¶ 26} The parties stipulated that after relator sent its first letter of inquiry
regarding Pearl’s grievance, Lemieux called and requested an extension of time to
respond, purportedly to collect electronic records to show that he had spent many
hours on the computer working on the case. After the extended deadline passed
without a response from Lemieux, relator sent a second letter of inquiry, to which
Lemieux submitted a handwritten note denying any misconduct. Lemieux
stipulates that Pearl is entitled to a full refund of her $1,000 payment.
{¶ 27} The board found that Lemieux’s misconduct in this matter violated
Prof.Cond.R. 1.3, 1.5(a), 8.1(b), 8.4(d), and 8.4(h) and Gov.Bar R. V(4)(G). We
adopt these findings of fact and misconduct.
Count Six—Trust Account Violations
{¶ 28} Lemieux stipulated that he did not maintain a client trust account
and therefore the money he received from his clients was not deposited in such an
account to be held until he had earned it. Thus, the board found, and we agree,
that he violated Prof.Cond.R. 1.15(c) (requiring a lawyer to deposit legal fees and
expenses paid in advance into a client trust account and to withdraw them only as
fees are earned or expenses incurred).
Sanction
{¶ 29} In determining the appropriate sanctions for attorney misconduct,
we consider relevant factors, including the ethical duties that the lawyer violated
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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. We also weigh
evidence of the aggravating and mitigating factors listed in BCGD Proc.Reg.
10(B). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251,
875 N.E.2d 935, ¶ 21.
{¶ 30} Here, the board found that five of the nine aggravating factors
enumerated in BCGD Proc.Reg. 10(B)(1) are present: a dishonest or selfish
motive, a pattern of misconduct, multiple offenses, the vulnerability of and
resulting harm to the victims of the misconduct, and the failure to make
restitution. See BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h), and (i).
{¶ 31} In mitigation, the board found that Lemieux did not have a prior
disciplinary record. See BCGD Proc.Reg. 10(B)(2)(a). The board thoroughly
reviewed Lemieux’s lengthy history of drug and alcohol abuse and his treatment,
which dates back to late 2001, but it did not find that that his chemical
dependency qualified as a mitigating factor pursuant to BCGD Proc.Reg.
10(B)(2)(g).
{¶ 32} BCGD Proc.Reg. 10(B)(2)(g) provides that chemical dependency
or mental disability may be considered in favor of recommending a less severe
sanction when all of the following are present: (i) a diagnosis of a chemical
dependency or mental disability by a qualified health-care professional or alcohol-
or substance-abuse counselor, (ii) a determination that the chemical dependency
or mental disability contributed to cause the misconduct, (iii) in the event of
chemical dependency, a certification of successful completion of an approved
treatment program or in the event of mental disability, a sustained period of
successful treatment, and (iv) a prognosis from a qualified health-care
professional or alcohol- or substance-abuse counselor that the attorney will be
able to return to the competent, ethical, and professional practice of law under
specified conditions.
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{¶ 33} Lemieux has been diagnosed with a chemical dependency,
primarily on opiates. The nature of his misconduct and the fact that it occurred
during a period in which he was using drugs, entering into brief remissions, and
then relapsing sufficiently demonstrate that his chemical dependency contributed
to his misconduct. Thus, Lemieux has satisfied the first two criteria of BCGD
Proc.Reg. 10(B)(2)(g).
{¶ 34} While there is ample evidence that Lemieux participated in
multiple drug-treatment programs, the only evidence that he successfully
completed those programs was his own testimony. See BCGD Proc.Reg.
10(B)(2)(g)(iii). However, Lemieux presented evidence that he had passed
monthly drug tests for approximately 15 months and had been participating in
treatment, including the use of Suboxone, a prescribed opiate-agonist treatment,
under the supervision of Dr. Richard DeFranco, since April 2009. He also
presented evidence that he had been attending 12-step meetings in compliance
with his OLAP contract since February 2012.
{¶ 35} The most recent report from OLAP in the record is an October 11,
2012 letter from Paul Caimi, the associate director of OLAP, which states that
Lemieux had been sober for over ten months, had regularly tested negative for
illicit drug use, had been regularly attending 12-step meetings as required by his
June 2010 OLAP contract, and had satisfactorily remained in contact with Caimi
since approximately March 1, 2012.
{¶ 36} Neither Dr. DeFranco nor relator’s expert, Dr. Ted Parran, an
internal-medicine physician with a subspecialty certification in addiction
medicine, expressly stated that Lemieux would be able to return to the competent,
ethical, and professional practice of law under specified conditions, as required by
BCGD Proc.Reg. 10(B)(2)(g)(iv). While Dr. DeFranco believed that each
successive attempt at sobriety increased the odds that Lemieux would stay sober,
Dr. Parran testified that Lemieux’s multiple relapses while subject to an OLAP
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monitoring agreement were a “very poor prognostic sign in terms of long-term
sobriety.” But even he agreed that Lemieux’s remaining sober for more than a
year leading up to the hearing is a promising sign for his future.
{¶ 37} To be sure that Lemieux is not using drugs, Dr. Parran
recommended that the frequency of his random drug screens be increased from
approximately once per month to at least weekly, mainly because his drugs of
choice cannot be detected if they are used more than 36 hours before testing. Due
to Lemieux’s history of relapse, Dr. Parran would require 18 to 24 months of
“verified ironclad documentation of sobriety” with “verified ironclad
documentation of full adherence with a treatment plan” before even considering
whether Lemieux could return to work. He would also require Lemieux to obtain
an opinion regarding his fitness to practice law from an addiction specialist other
than his treating physician and would require a mental-health evaluation if the
addiction specialist felt it was a good idea.
{¶ 38} In a July 2012 letter to Caimi regarding Dr. Parran’s written
evaluation, Dr. DeFranco stated that Lemieux should continue to attend four or
more 12-step meetings per week. He indicated that his relapse-prevention plan
should include weekly therapy with a licensed addiction counselor and aftercare
for one to two years. DeFranco recommended that Lemieux be closely monitored
with random urine testing for five years—four times per month for one to two
years, and then two times per month. He also agreed that a mental-health
evaluation would be beneficial.
{¶ 39} Although Lemieux has not satisfied all of the requirements for his
chemical dependency to be considered as a mitigating factor, we nonetheless find
that his diagnosed condition, his sustained period of compliance with his OLAP
contract, and his ongoing treatment should be accorded some mitigating effect.
See, e.g., Disciplinary Counsel v. Anthony, 138 Ohio St.3d 129, 2013-Ohio-5502,
4 N.E.3d 1006, ¶ 13 (according some mitigating effect to the respondent’s
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diagnosed pathological gambling disorder, his entering into an OLAP contract, his
commencement of treatment with a clinical psychologist, and his involvement in
Gamblers Anonymous, even though he was not able to satisfy all of the
requirements of BCGD Proc.Reg. 10(B)(2)(g)).
{¶ 40} In its posthearing brief, relator argued that because Lemieux’s
misconduct includes neglecting client matters, taking retainers and failing to carry
out contracts of employment, failing to return unearned fees, and failing to
cooperate in the ensuing disciplinary investigations, he should be disbarred.
Alternatively, relator argued that he should be indefinitely suspended with his
reinstatement subject to stringent conditions. And given Lemieux’s propensity to
relapse, relator urged that he receive no credit for his interim remedial suspension.
{¶ 41} The panel and board concluded that an indefinite suspension with
stringent conditions for reinstatement and a three-year period of probation
following reinstatement will adequately protect the public from future misconduct
without eroding Lemieux’s current commitment to recovery.
{¶ 42} Lemieux engaged in multiple acts of misconduct by accepting legal
fees from clients and failing to perform the work, failing to reasonably
communicate with his clients during their representation, failing to maintain a
client trust account, and issuing solicitation letters that were misleading because
they gave the impression that he worked for a firm with multiple lawyers, when in
fact he was a solo practitioner.
{¶ 43} Neglect of legal matters and failure to cooperate in the ensuing
disciplinary investigation generally warrant an indefinite suspension from the
practice of law in Ohio. See, e.g., Disciplinary Counsel v. Hoff, 124 Ohio St.3d
269, 2010-Ohio-136, 921 N.E.2d 636, ¶ 10, citing, Disciplinary Counsel v.
Mathewson, 113 Ohio St.3d 365, 2007-Ohio-2076, 865 N.E.2d 891, ¶ 19. And
accepting retainers from clients but failing to carry out the employment is
tantamount to theft of the fee from the client—an offense for which we have
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stated the presumptive sanction is permanent disbarment. Cincinnati Bar Assn. v.
Weaver, 102 Ohio St.3d 264, 2004-Ohio-2683, 809 N.E.2d 1113, ¶ 16. But we
often temper that sanction in the presence of significant mitigating evidence. See,
e.g., Dayton Bar Assn. v. Fox, 108 Ohio St.3d 444, 2006-Ohio-1328, 844 N.E.2d
346; Disciplinary Counsel v. Tyack, 107 Ohio St.3d 35, 2005-Ohio-5833, 836
N.E.2d 568. As Cincinnati Bar Assn. v. Lawson, 119 Ohio St.3d 58, 2008-Ohio-
3340, 891 N.E.2d 749, and Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53,
2011-Ohio-2672, 950 N.E.2d 171, demonstrate, this is particularly true in cases
involving chemical dependency.
{¶ 44} Acknowledging that the primary purpose of disciplinary sanctions
is to protect the public, we have stated:
Thus, even in cases of egregious misconduct and illegal drug use,
we have decided against permanent disbarment based on the
lawyer’s probable recovery from the drug addiction that caused the
ethical breaches. See, e.g., Disciplinary Counsel v. Garrity, 98
Ohio St.3d 317, 2003-Ohio-740, 784 N.E.2d 691, ¶ 12 (lawyer and
former pharmacist convicted of stealing prescription drugs
suspended indefinitely after showing renewed dedication to his
treatment for his addiction). We tailor the sanction, when
appropriate, to assist in and monitor the attorney’s recovery.
Cincinnati Bar Assn. v. Washington, 109 Ohio St.3d 308, 2006-
Ohio-2423, 847 N.E.2d 435, ¶ 9.
Lawson at ¶ 73.
{¶ 45} In Lawson, we indefinitely suspended an attorney who was
addicted to prescription pain medications and who admitted to practicing law for
seven years while under the influence of drugs. We found that he had acted
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dishonestly and selfishly by spending fees paid by clients before earning them and
neglecting their cases while illicitly obtaining prescriptions for painkilling
medication from his doctor; failing to provide competent representation to his
clients by missing filing deadlines, including statute-of-limitations deadlines;
failing to reasonably communicate with his clients; authorizing his employees to
misuse his client trust account; misappropriating his clients’ settlement proceeds;
and lying during the disciplinary investigation. Id. at ¶ 19, 21, 24, 28, 30, 34, 37,
44, 49, 58, 60. His misconduct spanned a number of years, jeopardized numerous
clients’ interests, and cost his clients more than $40,000. Id. at ¶ 66.
{¶ 46} Lawson’s conduct was far more egregious than Lemieux’s in the
length of time during which it occurred, the number of clients harmed by his
conduct, and the extent of the harm they suffered. But evidence of Lawson’s
good character and reputation, his remorse, and his efforts to recover from his
chemical dependency persuaded us to impose an indefinite suspension—leaving
open the possibility that he could practice law again if he regained both his
sobriety and his ethical bearings. Id. at ¶ 74.
{¶ 47} In Hoppel, 129 Ohio St.3d 53, 2011-Ohio-2672, 950 N.E.2d 171, at
¶ 13-14, 26, we sustained the respondent’s objection to the recommended sanction
of an indefinite suspension and imposed a two-year suspension with 18 months
stayed on conditions for conduct that is more comparable to that of Lemieux.
{¶ 48} Hoppel, who was addicted to crack cocaine, had neglected 14
separate client matters, failed to keep clients reasonably informed about the status
of their matters, and failed to reasonably consult with one client about the means
necessary to achieve her objectives. Id. at ¶ 5-6, 10. His fees were excessive and
unreasonable because he failed to perform the clients’ work, and after converting
more than $14,000 in client funds to buy cocaine, he falsely advised his clients
that he needed more time to prepare their bankruptcy petitions. Id. at ¶ 5-6. He
also made false representations to the bankruptcy court by seeking leave to pay
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filing fees in installments despite the fact that his clients had already paid him the
full filing fee. Id. at ¶ 6.
{¶ 49} A number of mitigating factors were present, including Hoppel’s
full and free disclosure to the board, his cooperative attitude toward the
disciplinary proceedings, and evidence of his good character apart from the
charged misconduct. Id. at ¶ 10, 17. But perhaps most importantly, Hoppel had
successfully completed a 90-day inpatient-treatment program to address the drug
addiction that had caused his misconduct, complied with the terms of his OLAP
contract, and had been sober for a year and a half at the time of his hearing. Id. at
¶ 22. Moreover, following his disciplinary hearing, he made full restitution to the
clients harmed by his misconduct. Id.
{¶ 50} Lemieux’s conduct is most analogous to that of Hoppel. But the
only BCGD Proc.Reg. 10(B)(2) mitigating factor that Lemieux has established is
that he does not have a prior disciplinary record. While we accord some
mitigating effect to his diagnosed chemical dependency, his entering into an
OLAP contract, his treatment efforts, and his 15 months of sobriety at the time of
his hearing, he has not presented anywhere near the amount of mitigating
evidence that Hoppel did. Nonetheless, given his renewed dedication to his
treatment for his addiction, we conclude that an indefinite suspension with the
stringent conditions for reinstatement that have been recommended by the board
will adequately protect the public from future harm.
{¶ 51} Accordingly, we indefinitely suspend John Louis Lemieux from the
practice of law in Ohio. Before he may petition this court for reinstatement, he
must (1) execute and fully comply with a new OLAP contract that requires
random drug testing, (2) submit to and pass random drug tests once a week for
one year and then once every two weeks for a second year, (3) make full
restitution of $2,500 to Deborah Hubbard, $2,760 to Jennifer Heise, $1,350 to
Shasta Philpott, and $1,000 to Lachelle Pearl, (4) obtain a mental-health
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evaluation and a report from a mental-health counselor stating that he is able to
return to the competent, ethical, and professional practice of law, and (5) submit
to a mental-health evaluation conducted by an expert of relator’s choosing, and
obtain a report from that expert stating that he is able to return to the competent,
ethical, and professional practice of law.
{¶ 52} If Lemieux satisfies the above stated conditions and is reinstated to
the practice of law in Ohio, he shall be required to (1) execute a new three-year
OLAP contract and comply with its terms, (2) submit to random monthly drug
testing for a period of three years, (3) practice law in association with at least one
other experienced lawyer for the first year of his reinstatement, (4) serve a three-
year period of probation in accordance with Gov.Bar R. V(9) under which his
practice of law shall be monitored for the first year and his substance-abuse
recovery shall be monitored for the full three years.
{¶ 53} Costs are taxed to Lemieux.
Judgment accordingly.
PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
LANZINGER, J., concurs in judgment only.
O’CONNOR, C.J., and O’DONNELL, J., dissent and would disbar
respondent.
____________________
Tucker Ellis, L.L.P, Robert J. Hanna, and Seth H. Wamelink, for relator.
John Louis Lemieux, pro se.
_________________________
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