Dayton Bar Assn. v. O'Neal , 134 Ohio St. 3d 361 ( 2012 )

[Cite as Dayton Bar Assn. v. O’Neal, 134 Ohio St. 3d 361, 2012-Ohio-5634.]
DAYTON BAR ASSOCIATION v. O’NEAL.
[Cite as Dayton Bar Assn. v. O’Neal, 134 Ohio St. 3d 361, 2012-Ohio-5634.]
Attorneys at law—Misconduct—Mishandling and neglect of probate matters—
Age-associated cognitive decline does not qualify as mitigating factor—
Two-year suspension with 18 months stayed.
(No. 2012-0306—Submitted April 24, 2012—Decided December 5, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-042.
_______________________
Per Curiam.
{¶ 1} Respondent, Raymond Walter O’Neal Sr. of Dayton, Ohio,
Attorney Registration No. 0031153, was admitted to the practice of law in Ohio in
May 1981. On May 24, 1995, we suspended his license for six months, stayed the
suspension, and placed him on a two-year probation period after finding that he
had handled a client’s legal matter without adequate preparation and neglected an
entrusted matter. Dayton Bar Assn. v. O’Neal, 72 Ohio St. 3d 234, 648 N.E.2d
1344 (1995). On July 9, 1997, we terminated his probation. Dayton Bar Assn. v.
O’Neal, 79 Ohio St. 3d 1223, 681 N.E.2d 1335 (1997).
{¶ 2} On April 11, 2011, relator, Dayton Bar Association, charged
O’Neal with multiple violations of the Rules of Professional Conduct for his
alleged mishandling and neglect of two probate matters for the same client.
O’Neal answered, and in September 2011, a three-member panel of the Board of
Commissioners on Grievances and Discipline conducted a hearing, where O’Neal
testified and the parties submitted stipulations of fact and misconduct. As a
sanction, the parties jointly recommended a one-year suspension with six months
stayed on conditions.
SUPREME COURT OF OHIO
{¶ 3} During the hearing, the panel became concerned about O’Neal’s
cognitive abilities and memory. At that time, O’Neal was 71 years old, and he
repeatedly referred to his confusion as an explanation for his neglect of the
probate matters. The panel requested that O’Neal submit to a psychiatric
examination by a qualified health professional, and he agreed. In November
2011, the panel-appointed physician filed his independent report, which
diagnosed O’Neal with “age-associated cognitive decline.”
{¶ 4} After submission of the physician’s report and the parties’ final
arguments, the panel determined that O’Neal had committed some of the charged
misconduct, dismissed the remaining allegations, and recommended a two-year
suspension, with 18 months stayed on the conditions that he complete ten hours of
continuing legal education in law-office management and probate law, submit to
an additional psychiatric evaluation to show that there has been no further decline
in his cognitive functioning, and serve two years of monitored probation. The
board adopted the panel’s findings of fact and misconduct but recommended that
O’Neal be suspended for two years, with the entire suspension stayed on the
conditions that he (1) complete the continuing-legal-education courses as
recommended by the panel, (2) serve two years of monitored probation, and (3)
contact the Ohio Lawyers Assistance Program (“OLAP”), undergo an assessment,
and enter into a contract with OLAP under the conditions and for the duration that
it deems appropriate. O’Neal has consented to the findings and recommended
sanction, and relator has not filed any objections.
{¶ 5} We adopt the board’s findings of fact and misconduct, but for the
reasons that follow, we agree with the panel that a two-year suspension, with 18
months stayed on conditions, is the appropriate sanction. In addition, we
condition O’Neal’s reinstatement upon his completing a geriatric psychological
assessment and his submitting proof that he is fit to return to the competent,
ethical, and professional practice of law.
2
January Term, 2012
Misconduct
{¶ 6} In March 2008, Alicia Wingo retained O’Neal to represent her in
two probate cases involving the estates of her uncle, George Taylor, and her
father, Albon Wingo. Alicia Wingo was the representative of both estates, and
she paid O’Neal a $100 initial consultation fee. In May 2008, Wingo paid O’Neal
a $2,000 retainer. At that time, O’Neal did not have—and therefore did not
deposit the money into—a client trust account. Over the next year, O’Neal
neglected the two probate matters by persistently missing court deadlines, failing
to appear for court hearings, and failing to keep in contact with Wingo, and he
was eventually held in contempt by the probate court.
{¶ 7} Specifically, in the Taylor case, O’Neal missed three consecutive
deadlines to file the commissioner’s report, and he failed to appear for the ensuing
show-cause hearing. The probate court cited him and fined his client, who
eventually filed the report without O’Neal’s assistance. Wingo, however,
wrongfully distributed estate funds to herself and her brother, and the court
ordered that she recover the funds and file an amended report. But neither O’Neal
nor Wingo filed the amended report, and the court issued two additional citations
for missed deadlines. Similarly, in the Albon Wingo probate case, the court
issued five citations to O’Neal for missing deadlines to file the estate’s inventory
report and account reports.
{¶ 8} On April 3, 2009, Wingo sent O’Neal a letter terminating their
attorney-client relationship and demanding the return of her money and files.
O’Neal received the letter by certified mail, but he did not refund the money or
seek to withdraw as counsel. Instead, on April 29, 2009, he filed a
commissioner’s report in the Taylor case, which showed a distribution of legal
and commissioner fees that had not been previously approved by the court. The
court immediately ordered O’Neal to appear for a May 26, 2009 show-cause
hearing regarding why he and his client had not followed the court’s prior orders.
3
SUPREME COURT OF OHIO
By the time of the May hearing, however, Wingo had obtained new counsel, who
assumed responsibility for the case.
{¶ 9} O’Neal’s participation in the probate matters did not end there. In
December 2009, Wingo and her new counsel filed a fiduciary’s account report in
her father’s case, which listed a $3,050 distribution to O’Neal. These fees had not
been approved by the probate court, as required by local rule, and the court
ordered O’Neal to appear for a February 1, 2010 hearing. O’Neal failed to appear
but later requested additional time to submit applications for attorney fees in both
the Albon Wingo and Taylor probate cases. O’Neal, however, did not timely file
the fee applications.
{¶ 10} The court’s magistrate thereafter determined that O’Neal was not
entitled to any attorney fees and ordered that he return all fees he had obtained
from Wingo. Upon receipt of O’Neal’s motion to submit fees “out-of-time,” the
magistrate gave him one final opportunity to justify his fee distribution.
However, O’Neal again failed to appear for the scheduled hearing, and on July 9,
2010, the magistrate reordered O’Neal to return all fees to Wingo. By March 16,
2011, O’Neal had not returned his client’s money, and the probate judge found
him in contempt. O’Neal then disgorged his client’s funds, and his sentence was
set aside.
{¶ 11} The parties stipulated, the board found, and we agree that O’Neal’s
conduct violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent
representation to a client), 1.3 (requiring a lawyer to act with reasonable diligence
in representing a client), 1.15(a) (requiring a lawyer to hold property of clients in
an interest-bearing client trust account, separate from the lawyer’s own property),
and 1.15(c) (requiring a lawyer to deposit advance legal fees and expenses into a
client trust account, to be withdrawn by the lawyer only as fees are earned or
expenses incurred). In addition, although the parties did not stipulate to the
violation, the board found that O’Neal’s conduct violated Prof.Cond.R. 1.15(d)
4
January Term, 2012
(requiring a lawyer to promptly deliver funds or other property that the client is
entitled to receive), and we agree.
{¶ 12} Relator also charged O’Neal with violations of Prof.Cond.R. 1.4
(requiring a lawyer to reasonably communicate with a client), 1.16(d) (requiring a
lawyer withdrawing from representation to take steps reasonably practicable to
protect a client’s interest), 3.4(c) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal), 8.4(c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct
that is prejudicial to the administration of justice). Relator requested and the
board recommended dismissal of those allegations. Because relator has not
proven the allegations by clear and convincing evidence, we hereby dismiss the
charges.
Sanction
{¶ 13} 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 BCGD Proc.Reg. 10. Disciplinary Counsel v. Broeren, 115 Ohio St. 3d
473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 14} We have already addressed how O’Neal breached ethical duties
owed to his client. As aggravating factors, the board found a pattern of
misconduct and multiple offenses. See BCGD Proc.Reg. 10(B)(1)(c) and (d). As
mitigating factors, the board found that O’Neal (1) did not act with a dishonest or
selfish motive, (2) made restitution, although not timely, (3) displayed a
cooperative attitude toward the disciplinary proceeding, and (4) demonstrated
good character and reputation. See BCGD Proc.Reg. 10(B)(2) (b), (c), (d), and
5
SUPREME COURT OF OHIO
(e).1 Indeed, as to the fourth factor, the board noted that throughout his career,
O’Neal has represented underserved individuals who might not otherwise be able
to hire legal counsel, and such services are valued by the Dayton community and
the courts. Further, Judge Timothy N. O’Connell of the Montgomery County
Court of Common Pleas testified to O’Neal’s good character, stating that he is
“industrious, very honest and has an excellent work ethic demonstrating
commitment to his clients and his community.”
{¶ 15} O’Neal’s age-associated cognitive decline does not qualify as a
mitigating factor under BCGD Proc.Reg. 10(B)(2)(g). The panel-appointed
physician, David G. Bienenfeld, M.D., reported that there is no treatment for the
condition, and under BCGD Proc.Reg. 10(B)(2)(g)(iii), a “sustained period of
successful treatment” is a necessary element for any mental disability to be
considered in mitigation. We nonetheless find that the diagnosis is relevant to
determining the appropriate sanction. As we have previously explained, each
disciplinary case is unique, and 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. Cincinnati Bar Assn. v. Hartke, 132 Ohio St. 3d 116, 2012-Ohio-2443,
969 N.E.2d 1189, ¶ 9, quoting BCGD Proc.Reg. 10(B); see also Disciplinary
Counsel v. Parker, 116 Ohio St. 3d 64, 2007-Ohio-5635, 876 N.E.2d 556, ¶ 86
(“[W]e frequently do weigh concerns not specified [in BCGD Proc. Reg.
10(B)]”).
{¶ 16} According to the panel report, O’Neal repeatedly testified that he
had “confusion” about what was required by the probate court and about Wingo’s
termination of his legal services. The panel found that O’Neal’s answers often
rambled, and he referred to irrelevant information, was vague, and was difficult to
1. In mitigation, the board also noted an “absence of a disciplinary record.” However, as noted
above, we found that O’Neal had engaged in professional misconduct in Dayton Bar Assn. v.
O’Neal, 72 Ohio St. 3d 234, 648 N.E.2d 1344 (1995). We therefore reject the board’s reliance on
this mitigating factor.
6
January Term, 2012
follow. The panel further reported that he had difficulty remembering his age.
The panel was in the best position to assess O’Neal’s testimony, and we defer to
their description of his demeanor and mental state. See, e.g., Cuyahoga Cty. Bar
Assn. v. Wise, 108 Ohio St. 3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶ 24 (“Unless
the record weighs heavily against a hearing panel’s findings, we defer to the
panel’s credibility determinations, inasmuch as the panel members saw and heard
the witnesses firsthand”).
{¶ 17} Dr. Bienenfeld reported that O’Neal’s condition does not meet the
definition of a “mental illness” in R.C. 5122.01(A). Instead, age-associated
cognitive decline is defined as “an objectively identified decline in cognitive
functioning consequent to the aging process that is within normal limits given the
person’s age.” Individuals with this condition “may report problems
remembering names or appointments or may experience difficulty in solving
complex problems.” According to Dr. Bienenfeld, O’Neal’s ability to conduct a
normal everyday life is not impaired, but he may be affected in “specific areas in
which an attorney must function above the cognitive levels required for everyday
life, including keeping track of multiple simultaneous tasks, adapting quickly to
changing circumstances, [and] integrating disparate types of information towards
a legal task.” Further, Dr. Bienenfeld reported that O’Neal “does demonstrate
cognitive impairment that likely impairs his ability to deliver quality legal
services.”
{¶ 18} Because the condition is part of the “normal aging process,” Dr.
Bienenfeld concluded that “it is not classified as a disease, and there is no
treatment.” If O’Neal continues to practice law, Dr. Bienenfeld recommended
either periodic monitoring or more rigorous neuropsychological evaluations at
yearly intervals to determine whether there is any further decline in cognitive
abilities.
7
SUPREME COURT OF OHIO
{¶ 19} We have consistently explained that “ ‘in determining the
appropriate length of the suspension and any attendant conditions, we must
recognize that the primary purpose of disciplinary sanctions is not to punish the
offender, but to protect the public.’ ” Disciplinary Counsel v. Agopian, 112 Ohio
St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10, quoting Disciplinary Counsel
v. O’Neill, 103 Ohio St. 3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53. That
purpose is served by suspending O’Neal from the practice of law for two years,
with 18 months stayed, and imposing conditions on reinstatement. While relator
did not show that O’Neal intended his client to suffer any harm—and O’Neal has
acknowledged his wrongdoing, demonstrated his good character, and cooperated
in the disciplinary investigation—Dr. Bienenfeld reported that no treatment is
available for age-associated cognitive decline and O’Neal’s cognitive impairment
“likely” impairs his ability to provide quality legal services. Therefore, to protect
the public and maintain the integrity of the legal profession, any future
reinstatement must be conditioned on O’Neal’s undergoing another evaluation
and submitting proof that his age-associated cognitive decline does not prevent
him from competently and ethically practicing law. If O’Neal meets the
conditions of reinstatement, an on-going OLAP contract, which should assist him
in addressing and managing the identified aging issues, combined with the
monitoring, reporting, and other probationary restrictions imposed by Gov.Bar R.
V(9) on his professional relationships, will allow him to practice law and continue
to serve the courts and his community without posing a threat to the public.
{¶ 20} Based on the foregoing, Raymond Walter O’Neal Sr. is hereby
suspended from the practice of law in the state of Ohio for two years, with 18
months stayed on the conditions that he (1) commit no further misconduct and (2)
complete a minimum of ten hours of continuing legal education in topics related
to law-office management for solo practitioners and estate and probate law in
addition to the requirements of Gov.Bar R. X(3)(G). If O’Neal fails to comply
8
January Term, 2012
with the conditions of the stay, the stay will be lifted, and O’Neal shall serve the
entire two-year suspension. In applying for reinstatement, O’Neal shall (1)
submit evidence from a qualified medical professional that he completed a
geriatric psychological assessment and provide proof to a reasonable degree of
medical certainty that he is fit to return to the competent, ethical, and professional
practice of law and (2) submit evidence that he has entered into a contract with
OLAP to address aging issues—the duration of which shall be determined by
OLAP—and has complied with all of OLAP’s recommendations. If reinstated,
O’Neal shall serve a two-year probation under the supervision of a monitoring
attorney in accordance with Gov.Bar R. V(9) to review his files and ensure
compliance with ethical and professional standards of practice. Costs are taxed to
O’Neal.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
_______________
Christopher R. Conard, Bar Counsel, for relator.
Gary J. Leppla, for respondent.
_______________________
9