Lorain Cty. Bar Assn. v. Lindon (Slip Opinion) , 2021 Ohio 804 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Lorain Cty. Bar Assn. v. Lindon, Slip Opinion No. 2021-Ohio-804.]
NOTICE
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SLIP OPINION NO. 2021-OHIO-804LORAIN COUNTY BAR ASSOCIATION v. LINDON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Lorain Cty. Bar Assn. v. Lindon, Slip Opinion No.
2021-Ohio-804.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct and the
Rules for the Government of the Bar—No credit for time served under
interim felony suspension—Indefinite suspension.
(No. 2019-0216—Submitted January 27, 2021—Decided March 18, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-038.
_______________________
Per Curiam.
{¶ 1} Respondent, James L. Lindon, of Avon, Ohio, Attorney Registration
No. 0068842, was admitted to the practice of law in Ohio in 1997. On January
15, 2010, we publicly reprimanded Lindon after he received a similar sanction
from the Michigan Attorney Discipline Board. Disciplinary Counsel v. Lindon,
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124 Ohio St.3d 1217, 2010-Ohio-507, 921 N.E.2d 651. On June 30, 2016, we
suspended his license on an interim basis following his convictions on felony
counts of theft, drug possession, and tampering with evidence, and that
suspension remains in effect. See In re Lindon, 150 Ohio St.3d 1236, 2016-Ohio-
4671, 79 N.E.3d 554.
{¶ 2} In a September 2, 2016 complaint and again in an August 29, 2018
first amended complaint, relator, Lorain County Bar Association, alleged that the
conduct underlying Lindon’s criminal convictions violated the professional-
conduct rules. The parties submitted stipulations of fact and misconduct and
stipulated exhibits. After a hearing, the board issued a report finding that Lindon
had engaged in the stipulated misconduct and recommending that we suspend him
for two years, with one year stayed on conditions, and that we grant him no credit
for the time served under the interim felony suspension. Lindon objected to the
board’s recommendation that he receive no credit for the time served under his
interim felony suspension and that he be required to participate in the Ohio
Lawyers Assistance Program (“OLAP”). We heard oral argument on those
objections in September 2019.
{¶ 3} While the matter remained pending before this court, relator
discovered evidence that Lindon had been suspended on an interim basis and
ultimately disbarred in Michigan as a result of his felony convictions in Ohio.1
On January 16, 2020, relator filed an emergency motion asking this court to stay
the case and remand it to the board for further proceedings. The next day,
disciplinary counsel commenced a reciprocal-discipline case by filing a certified
1. Lindon’s Ohio disciplinary proceedings were stayed for nearly two years while he appealed his
criminal conviction. See Gov.Bar R. V(18)(C) (providing that any disciplinary proceeding based
on a conviction of an offense shall not be brought to hearing until all direct appeals from the
conviction are concluded). Michigan, however, has no rule comparable to Gov.Bar R. V(18)(C).
Therefore, Lindon’s Michigan disciplinary proceedings based on his Ohio convictions went
forward, despite his appeal. Disbarment in Michigan is not permanent; it is akin to an indefinite
suspension in Ohio. Michigan’s disciplinary-procedure rules permit a disbarred attorney to
petition for reinstatement after five years. See Mich.Ct.R. 9.123(B).
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copy of the Michigan order of disbarment with the clerk of this court. See
Disciplinary Counsel v. Lindon, No. 2020-0093; Gov.Bar R. V(20). On March
25, 2020, we granted relator’s motion, stayed both cases, and remanded the matter
to the board for further proceedings.
{¶ 4} In a second amended complaint filed on April 7, 2020, relator
alleged that Lindon committed three additional ethical violations by giving false
testimony about the status of his Michigan law license during the course of these
disciplinary proceedings and failing to report his Michigan discipline to the Office
of Disciplinary Counsel and the clerk of this court. Lindon stood by his
stipulations with respect to the original charges against him, but he denied having
engaged in the additional misconduct.
{¶ 5} The case is now before us on the February 11, 2019 and October 2,
2020 reports of the Board of Professional Conduct finding that Lindon committed
all of the charged misconduct and recommending that he be indefinitely
suspended from the practice of law with no credit for the time served under his
interim felony suspension. Neither party has objected to the board’s October
2020 report.
{¶ 6} Having independently reviewed the record, we adopt the board’s
findings of misconduct and indefinitely suspend Lindon from the practice of law
in Ohio with no credit for the time served under his interim felony suspension.
Facts and Misconduct
Lindon’s Criminal Conduct
{¶ 7} While working as a pharmacist at the Cleveland Clinic, Lindon was
the subject of an internal investigation into the possible theft of drugs from the
pharmacy. On June 2, 2015, security personnel reviewed video footage of Lindon
removing a bottle of hydrocodone tablets from a basket, dumping something into
his hand, and then placing that hand in his pocket. Upon being approached by
security personnel, Lindon removed something from his pocket and placed it in
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his mouth. After being asked to empty his pockets, Lindon removed three pills—
two were later identified as tramadol and one was later identified as hydrocodone.
{¶ 8} Lindon was indicted on felony counts of theft, drug possession, and
tampering with evidence. He represented himself at trial, and a jury found him
guilty on all counts. The trial court sentenced him to serve two years of
community control and ordered him to complete regular drug testing, counseling,
and inpatient drug treatment and to pay a fine of $750. As a result of Lindon’s
convictions, his Ohio pharmacist license was permanently revoked.
{¶ 9} In September 2016, Lindon appealed his convictions to the Eighth
District Court of Appeals, challenging the trial court’s denial of his motion to
suppress the evidence obtained from his pocket. In June 2017, the court of
appeals reversed the trial court’s decision denying Lindon’s motion to suppress
and remanded the case to the trial court with instructions to conduct an
evidentiary hearing before ruling on the motion to suppress. State v. Lindon, 8th
Dist. Cuyahoga No. 104902, 2017-Ohio-4439, ¶ 18. The trial court conducted the
hearing and again denied the motion on June 4, 2018. Lindon has since
completed his sentence.
{¶ 10} In its February 2019 report, the board found that Lindon’s criminal
conduct violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an
illegal act that reflects adversely on the lawyer’s honesty or trustworthiness) and
8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation). The board also found that his conduct is
sufficiently egregious to warrant a separate finding that he violated Prof.Cond.R.
8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on
the lawyer’s fitness to practice law), see Disciplinary Counsel v. Bricker, 137
Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.
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Lindon’s Michigan Discipline
{¶ 11} At the July 16, 2020 panel hearing following our remand, relator
presented evidence that the Michigan Attorney Discipline Board had suspended
Lindon’s law license on an interim basis in June 2016 and disbarred him on
February 21, 2017, based on his felony convictions in Ohio. At that hearing,
Lindon testified that he had received notice that Michigan had suspended his
license on an interim basis as a consequence of his felony convictions, but he
stated that he had not received—or did not recall receiving—any correspondence
from Michigan regarding the subsequent disbarment proceedings.
{¶ 12} However, Lindon also admitted that he had received an April 4,
2018 letter from the United States Patent and Trademark Office (“USPTO”)
notifying him that the office had launched an investigation because he had been
disbarred in Michigan. In addition, the deputy director of the Michigan Attorney
Discipline Board submitted an affidavit to the board in which she averred that she
had spoken with Lindon about his disbarment on June 4, 2018. The board
therefore determined that Lindon was aware of Michigan’s interim suspension
and disbarment orders and the pending USPTO proceeding before his deposition
on August 31, 2018.
{¶ 13} When asked at that deposition whether he was licensed to practice
in any other state, Lindon testified that he was licensed to practice law in
Michigan and that that license was “just no longer active.” He acknowledged that
he had been publicly reprimanded in Michigan in 2009, but when relator asked
him whether there had been “any other disciplinary proceedings in [his] capacity
as a lawyer,” he stated that there were “only two incidents that I know of. I mean
the present one and the one from * * * 2009 or whatever it was.”
{¶ 14} At his July 2020 disciplinary hearing, Lindon argued that his
deposition testimony was not false for two reasons. First, he asserted that he had
not lied about the status of his Michigan license because, after being publicly
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reprimanded in 2009, he had asked “what was the fastest and easiest way that [he
could] be done with the State of Michigan.” He stated that he was told that he
could stop paying his dues and go on inactive status, which he did. But even if it
was true that his Michigan license was inactive for his failure to pay dues, Lindon
also knew that he had been disbarred in Michigan and failed to disclose that fact
during his deposition.
{¶ 15} Second, Lindon claimed that he had relied on a September 2017 e-
mail that was purportedly sent to him and the Michigan Attorney Discipline
Board by the assistant deputy administrator of Michigan’s Attorney Grievance
Commission (the prosecuting arm of Michigan’s disciplinary process). That e-
mail stated:
As you are aware, the rules require that a discipline be
vacated when the conviction from which it resulted is set aside.
Mr. Lindon’s conviction was set aside and the matter remanded for
retrial.
We will be reopening our file in order to monitor the
criminal proceedings.
{¶ 16} Although that e-mail suggests that perhaps Lindon’s Michigan
disbarment should have been vacated, it is important to note that the e-mail was
not issued by the Michigan Attorney Discipline Board (i.e., the entity charged
with imposing discipline in that state). And because Lindon had spoken on the
telephone with the deputy director of the Michigan board about his disbarment on
June 4, 2018—as sworn to by the deputy director in her affidavit—our Board of
Professional Conduct found that he could not in good faith rely upon the earlier e-
mail from the prosecuting arm of the Michigan disciplinary process to claim that
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he did not understand the status of his Michigan license at the time of his August
2018 deposition.
{¶ 17} The board therefore rejected Lindon’s attempts to justify his failure
to disclose his Michigan disbarment and found that his conduct violated
Prof.Cond.R. 8.4(c) and 8.4(d) (prohibiting a lawyer from engaging in conduct
that is prejudicial to the administration of justice) and Gov.Bar R. V(20)(A)
(requiring an attorney admitted to the practice of law in Ohio to provide written
notification of a disciplinary order issued in another jurisdiction to disciplinary
counsel and the clerk of this court within 30 days of its issuance).
{¶ 18} We adopt these findings of misconduct. Moreover, we emphasize
that whether Lindon affirmatively misrepresented or knowingly omitted material
facts regarding his Michigan disbarment, the result is the same—Lindon engaged
in conduct that involved dishonesty, fraud, deceit, or misrepresentation not only
during relator’s investigation but also in his conduct before the board, which
serves as an arm of this court. See, e.g., Miles v. McSwegin, 58 Ohio St.2d 97, 99,
388 N.E.2d 1367 (1979) (“It is well established that an action for fraud and deceit
is maintainable not only as a result of affirmative misrepresentations, but also for
negative ones, such as the failure of a party to a transaction to fully disclose facts
of a material nature where there exists a duty to speak”).
Sanction Recommended by the Board
{¶ 19} When recommending the sanction to be imposed for attorney
misconduct, the board considers all relevant factors, including the ethical duties
that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar
R. V(13), and the sanctions imposed in similar cases.
{¶ 20} In its original report, the board found that three aggravating factors
were present in this case—Lindon’s prior disciplinary record, his dishonest or
selfish motive, and his refusal to acknowledge the wrongful nature of his conduct.
See Gov.Bar R. V(13)(B)(1), (2), and (7). On remand it also found that Lindon
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failed to cooperate in the disciplinary process and submitted false statements or
engaged in other deceptive practices during the disciplinary proceedings. See
Gov.Bar R. V(13)(B)(5) and (6).
{¶ 21} As mitigating factors, the board originally found that Lindon made
full and free disclosure to the board and exhibited a cooperative attitude toward
the disciplinary proceedings, submitted evidence of his good character and
reputation, was subject to other penalties or sanctions (including criminal
sanctions and the revocation of his pharmacist license), engaged in other interim
rehabilitation efforts, and harmed no clients. See Gov.Bar R. V(13)(C)(4), (5),
(6), and (8). But on remand, the board withdrew its findings regarding Lindon’s
cooperation and full and free disclosure because his additional misconduct proved
that they were not true.
{¶ 22} During his December 2018 disciplinary hearing, Lindon admitted
that from 2005 until shortly before his criminal trial, he used opioids prescribed
by his physician to treat a medical condition, but he denied that he had ever stolen
them. He testified that he was diagnosed with opiate-use disorder after his
criminal trial and that he had completed a 30-day inpatient treatment program.
However, he did not attempt to establish his substance-use disorder as a
mitigating factor under Gov.Bar R. V(13)(C)(7).
{¶ 23} Lindon voluntarily entered into a contract with OLAP after his
criminal trial and before sentencing. However, he testified that he was terminated
from OLAP because he is an atheist, that the program did not offer any secular
alternative to Alcoholics Anonymous (“AA”), and that AA encourages its
participants to believe in a higher power. Despite his objection to the religious
aspects of AA, he had been attending weekly meetings until around the time of
his 2018 disciplinary hearing—though he admitted that his attendance ceased
sometime before the September 2019 oral argument in this case.
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{¶ 24} In its February 2019 report, the board noted that we have imposed
sanctions ranging from two-year partially stayed suspensions to indefinite
suspensions on attorneys who have been convicted of drug-related offenses
comparable to Lindon’s. See, e.g., Ohio State Bar Assn. v. Peskin, 125 Ohio St.3d
244, 2010-Ohio-1811, 927 N.E.2d 598 (imposing a two-year suspension with 18
months conditionally stayed on an attorney who completed an intervention-in-
lieu-of-conviction program that resulted in the dismissal of charges for possession
of crack cocaine and resisting arrest). At that time, the board recommended that
Lindon be suspended for two years, with one year stayed on several conditions,
including that he enter into a two-year drug-related contract with OLAP. The
board also recommended that Lindon receive no credit for the time served under
his interim felony suspension.
{¶ 25} Lindon objected to the board’s recommended sanction, arguing that
the recommendations that he receive no credit for the time served under his
interim felony suspension and that he be required to participate in OLAP were
unjust, excessive, and inconsistent with our precedent. He argued that the failure
to credit him for the time served under his interim felony suspension (much of
which had then been occasioned by his criminal appeal) would result in an
unconstitutional trial tax. He also claimed that his compelled participation in
OLAP would violate the Establishment Clause of the First Amendment to the
United States Constitution under the mistaken belief that OLAP does not offer
any secular alternatives to 12-step programs that promote belief in a higher
power.
{¶ 26} Given the additional misconduct found on remand, the board now
recommends that Lindon be indefinitely suspended from the practice of law and
that he receive no credit for the time served under his interim felony suspension.
In addition to the requirements set forth in Gov.Bar R. V(25)(D), the board also
recommends that Lindon’s reinstatement be subject to the conditions set forth in
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its first recommended sanction—with the exception that he shall not be required
to participate in 12-step meetings and the additional requirement that he submit a
prognosis from a qualified chemical dependency professional that he is able to
return to the competent, ethical, and professional practice of law.
{¶ 27} Lindon has not objected to the board’s second report or renewed
his objections to the board’s original report. We note, however, that the board’s
current recommendation and our decision today expressly state that Lindon shall
not be required to participate in the 12-step programs that rendered his OLAP
contract objectionable to him. Furthermore, we find no merit in Lindon’s
arguments in favor of credit for time served under his interim felony suspension
given the additional delay that was occasioned by his own dishonesty regarding
his Michigan disbarment.
{¶ 28} Lindon’s wrongdoing began with misconduct in his role as a
pharmacist that resulted in felony convictions for theft, drug possession, and
tampering with evidence but also violated the most basic professional duty of an
attorney—to act with honesty and integrity. See, e.g., Cincinnati Bar Assn. v.
Newman, 127 Ohio St.3d 123, 2010-Ohio-5034, 937 N.E.2d 81, ¶ 12; Cincinnati
Bar Assn. v. Blankemeyer, 109 Ohio St.3d 156, 2006-Ohio-2038, 846 N.E.2d 523,
¶ 12. He continued to violate that duty of honesty and integrity by giving false
and misleading testimony in his deposition and in the disciplinary hearing
conducted by an arm of this court. We have recognized that a lawyer’s material
misrepresentation to a court “ ‘strikes at the very core of a lawyer’s relationship
with the court’ ” and that “ ‘[r]espect for our profession is diminished with every
deceitful act of a lawyer.’ ” Disciplinary Counsel v. Stafford, 131 Ohio St.3d 385,
2012-Ohio-909, 965 N.E.2d 971, ¶ 68, quoting Disciplinary Counsel v.
Fowerbaugh, 74 Ohio St.3d 187, 190, 658 N.E.2d 237 (1995).
{¶ 29} In Cleveland Metro. Bar Assn. v. McElroy, 140 Ohio St.3d 391,
2014-Ohio-3774, 18 N.E.3d 1191, we disciplined an attorney who had engaged in
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a pattern of dishonesty that included being convicted of forgery and tampering
with evidence; allowing his counsel to make false statements about his criminal
record in court without correction; making false statements in an affidavit, in his
expungement filing, and in the resulting disciplinary proceedings; and failing to
report his felony convictions to a disciplinary authority. Id. at ¶ 10, 13. Like
Lindon, McElroy violated Prof.Cond.R. 8.4(c), (d), and (h). Id. at ¶ 14. Instead
of failing to report discipline imposed in another jurisdiction as Lindon did,
McElroy also violated Prof.Cond.R. 8.3(a) (requiring a lawyer to self-report
ethical violations that raise a question about the lawyer’s honesty, trustworthiness,
or fitness as a lawyer). Id. In contrast to Lindon, McElroy had no prior
disciplinary record and acknowledged the wrongfulness of his conduct. Id. at
¶ 16. Nonetheless, we accepted the panel’s assessment that “[i]f an attorney
cannot be trusted to reveal candidly unfavorable facts about his own behavior, we
as a panel cannot be sanguine about whether he will be candid in his
representations to courts or clients in other contexts.” Id. at ¶ 19. We indefinitely
suspended McElroy from the practice of law in Ohio with no credit for the time
served under his interim felony suspension. Id. at ¶ 24. We agree with the board
that that is the appropriate sanction for Lindon’s misconduct in this case.
Conclusion
{¶ 30} Accordingly, James L. Lindon is indefinitely suspended from the
practice of law in Ohio with no credit for the time served under the interim felony
suspension imposed on June 30, 2016. In addition to the requirements set forth in
Gov.Bar R. V(25)(D), Lindon’s reinstatement to the practice of law in Ohio shall
be subject to the conditions that he (1) remain drug- and alcohol-free, (2) enter
into a two-year drug-related contract with OLAP—though he shall not be required
to participate in 12-step meetings, (3) submit to random drug screens, (4)
participate in mental-health/substance-abuse counseling with a qualified
chemical-dependency professional, notify OLAP of that professional’s name and
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address, and execute the necessary waivers to allow the professional to send
periodic reports to OLAP, (5) notify his OLAP counselor and his mental-
health/substance-abuse counselor of the names and dosages of all drugs
prescribed to him and waive the doctor-patient privilege with respect to any
prescribing physician for the duration of his suspension, (6) submit proof that he
has successfully completed a substance-abuse-treatment program, (7) submit a
prognosis from a qualified chemical-dependency professional that he is able to
return to the competent, ethical, and professional practice of law, (8) commit no
further misconduct, and (9) pay the costs of these disciplinary proceedings. Costs
are taxed to Lindon.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Wickens, Herzer, Panza and Daniel A. Cook; and O’Toole, McLaughlin,
Dooley & Pecora Co., L.P.A., Matthew A. Dooley, and Michael R. Briach, for
relator.
James L. Lindon, pro se.
_________________
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