Cuyahoga County Bar Ass'n v. McClain , 99 Ohio St. 3d 248 ( 2003 )

Per Curiam.

{¶ 1} Respondent, Mark A. McClain of Cleveland, Ohio, Attorney Registration No. 0013148, was admitted to the practice of law in Ohio in 1982. On June 5, 2002, we suspended his license indefinitely for professional misconduct. Cleveland Bar Assn. v. McClain, 95 Ohio St.3d 488, 2002-Ohio-2428, 769 N.E.2d 390 (“McClain I ”). On September 23, 2002, relator, Cuyahoga County Bar Association, filed an amended complaint, charging respondent with additional violations of the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause, making findings of fact, conclusions of law, and a recommendation.

{¶ 2} The panel found that a client contacted respondent’s office in April 1998 to make an appointment with him to discuss her personal-injury and medical-malpractice claims. The client had initially met with another attorney with whom respondent was sharing office space, and respondent discovered the client’s file in June or July 1998, after the other attorney had moved out. In December 1998, respondent filed a personal-injury action and a separate malpractice action on the client’s behalf in the Cuyahoga County Court of Common Pleas. He did not, however, answer the client’s repeated inquiries about the status of her cases.

{¶ 3} In July 1999, respondent failed to appear at a case-management conference in the personal-injury action. He also failed to attend a hearing on August 17, 1999, at which the court considered dismissing the personal-injury action for failure to prosecute. The court subsequently dismissed the client’s lawsuit.

{¶ 4} Also in July 1999, the court dismissed the client’s malpractice action for respondent’s failure to comply with discovery and failure to prosecute. Respondent did not timely advise his client of these dismissals and did not perfect an appeal in either case. The statute of limitations for both causes of action expired before the client was able to refile them.

{¶ 5} The panel also found that another client retained respondent in May 2000 to represent her in a pending race- and sex-discrimination suit. Respondent failed to oppose a motion for summary judgment, which led to the court’s dismissal of his client’s case. Respondent moved for relief from the court’s judgment, arguing excusable neglect due to his severe depression, but he did not substantiate his medical condition. The court denied the motion for relief from judgment as well as respondent’s motion for leave to respond to the motion for summary judgment. Respondent did not appeal the court’s dismissal order before the appeal period expired.

{¶ 6} The panel found that by abandoning the interests of these clients, respondent committed three violations of DR 6-101(A)(3) (neglect of an entrusted legal matter). Because respondent also did not reply to some initial attempts to investigate this misconduct, the panel also found respondent in violation of Gov.Bar R. V(4)(G) (failure to cooperate in an investigation of misconduct).

{¶ 7} In recommending a sanction, the panel considered as aggravating factors that respondent had a significant history of professional misconduct, including previous client neglect and lack of cooperation, had lost causes of action that his clients were entitled to pursue, and had not refunded $1,000 paid by the client with the discrimination claims. In mitigation, the panel observed that respondent had eventually cooperated with relator, had a good reputation as a lawyer, was active in his profession and community, and had been attempting to repay money owed due to his earlier misconduct. In addition, respondent established that he was suffering from debilitating mental illness during the events at issue and that he continued to be treated for this illness. The panel found that respondent’s mental illness contributed to this misconduct, as well as some of the misconduct he committed in the earlier case. The panel also acknowledged respondent’s efforts to recuperate through psychotherapy and medication; however, it concluded that, for now, he was incapable of practicing law.

{¶ 8} The panel recommended that respondent receive an indefinite suspension from the practice of law, with the suspension to be served concurrently with the indefinite suspension that respondent is currently serving. The board adopted the panel’s findings of misconduct and recommendation, although it clarified that this indefinite suspension should be deemed to have commenced as of June 5, 2002, to coincide with the suspension already in effect.

{¶ 9} In objections to the board’s findings and recommendation, respondent challenges the aggravating effect attributed to his history of misconduct. He contends that because he mentioned his depression diagnosis during preliminary proceedings in McClain I and then developed a more complete record of his condition in this case, he should have been afforded a mental-illness suspension under Gov.Bar R. V(7) in the earlier case and not subjected to formal disciplinary measures. Citing a recent medical report indicating, his favorable response to therapy, respondent urges us to consolidate this case with McClain I and to issue an order that imposes a one-year suspension, provides credit for time served, and allows him to apply for reinstatement to the bar under conditions of continued monitoring and medical treatment.

{¶ 10} We overrule this objection. The expedited procedure for suspending a mentally ill attorney’s license exists for the protection of the public, not as a means for an attorney to avoid disciplinary action. Cincinnati Bar Assn. v. Komarek (1998), 84 Ohio St.3d 90, 96, 702 N.E.2d 62. Thus, even if an indefinite summary suspension under Gov.Bar R. V(7) had been issued, it would not have resolved any charged disciplinary violations. Id.

{¶ 11} Respondent also insists that his clients were not “vulnerable” enough for the harm respondent caused them to be considered as an aggravating factor in enhancing his sanction. See Section 10(B)(1)(h) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline. Basically, respondent contends that his clients’ chances of success were poor so that the loss of their claims for relief was not too great. He also asserts that he earned the $1,000 paid by the client with the discrimination claims. We defer to the board’s findings of fact on these issues. Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d 490, 2002-Ohio-2490, 769 N.E.2d 816, ¶ 19.

{¶ 12} Beyond this, we agree that respondent committed the cited misconduct, and, with the sanction recommended by the board. To determine the appropriate sanction, we consider “ ‘the duties violated, the actual injury caused, the lawyer’s mental state, the existence of aggravating or mitigating circumstances, and sanctions imposed in similar cases.’ ” Disciplinary Counsel v. Connors, 97 Ohio St.3d 479, 2002-Ohio-6722, 780 N.E.2d 567, ¶ 16, quoting Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. An indefinite suspension may be an appropriate sanction for repeated neglect caused, at least in part, by mental or emotional illness. Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002-Ohio-5934, 778 N.E.2d 564, ¶ 23-25.

{¶ 13} Accordingly, respondent is hereby suspended indefinitely from the practice of law in Ohio, and, consistent with the board’s recommendation, the suspension is deemed to have commenced as of June 5, 2002. In addition, we order respondent to reimburse the client who paid him $1,000 to pursue her claims for race- and sex-discrimination. Costs are taxed to respondent.

Judgment accordingly.

Moyer, C.J., Resnick, F.E. Sweeney, Wise and O’Connor, JJ., concur. Pfeifer and Lundberg Stratton, JJ., dissent. John W. Wise, J., of the Fifth Appellate District, sitting for Cook, J.