Disciplinary Counsel v. Pickrel (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Pickrel, Slip Opinion No. 2017-Ohio-6872.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2017-OHIO-6872
DISCIPLINARY COUNSEL v. PICKREL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Pickrel, Slip Opinion No.
2017-Ohio-6872.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—Two-
year suspension with one year stayed on conditions.
(No. 2017-0225—Submitted April 5, 2017—Decided July 20, 2017.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2016-024.
_______________________
Per Curiam.
{¶ 1} Respondent, Patricia Ann Pickrel, of Centerville, Ohio, Attorney
Registration No. 0071153, was admitted to the practice of law in Ohio in 1999.
Since September 1, 2005, she has been registered as an inactive attorney.
{¶ 2} In a June 29, 2016 complaint, relator, disciplinary counsel, alleged
that Pickrel violated several professional-conduct rules by knowingly overbilling a
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law firm by more than $87,000 for nonattorney document-review services over
approximately four years.
{¶ 3} A panel of the Board of Professional Conduct granted the parties’
motion to waive the hearing on the matter and adopted their joint stipulations of
fact, misconduct, and aggravating and mitigating factors. In addition, the panel
adopted the parties’ recommended sanction of a two-year suspension with one year
stayed on conditions; however, it also recommended that Pickrel serve a two-year
period of monitored probation upon reinstatement. The board agreed with the
panel’s findings and recommendation. We adopt the board’s findings of fact and
misconduct and suspend Pickrel from the practice of law in Ohio for two years with
one year stayed on the conditions recommended by the board.
Misconduct
{¶ 4} The parties stipulate that in the fall of 2005, Pickrel became an
independent contractor for the law firm of Ulmer & Berne, L.L.P., performing
nonattorney document-review services for cases pending in the firm’s Cincinnati
office. In January 2012, Pickrel began working on a large pharmaceutical project
for which she was paid $65 an hour. Due to the nature of the project and the firm’s
secure website, it was not possible for Pickrel to perform the contracted services of
reading, coding, or summarizing documents unless she was logged on to the secure
website.
{¶ 5} Approximately twice a month, Pickrel would send a firm associate,
Kimberly Beck, an e-mail stating the number of hours she purportedly had spent
reviewing, coding, or summarizing documents in the preceding two-week period.
The firm logged those hours into a separate system to generate Pickrel’s
compensation. From January 2012 through November 2015, the firm paid Pickrel
$125,209.50.
{¶ 6} On or about December 2, 2015, Beck discovered a discrepancy
between the number of hours Pickrel had reported working for the last two weeks
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January Term, 2017
of November 2015 and the number of hours Pickrel had been logged on to the
secure website during that period. When notified of the discrepancy, Pickrel stated
that the application she had used to track her hours was “all screwed up” and that
her hours may have “been inaccurate for the past month possibly.” But upon
performing a comprehensive audit of the time records from January 1, 2012,
through November 15, 2015, the firm discovered that Pickrel had overbilled it by
more than $87,000 over four years, with the excess billing accounting for 53 percent
to 89 percent of her annual compensation.
{¶ 7} On or about December 10, 2015, Gina Saelinger, the partner in charge
of the project, called Pickrel seeking an explanation for her overbilling. At the
beginning of the conversation, Pickrel stated that she was a bad record keeper and
that she had been having computer problems for the past year, but she ultimately
acknowledged her misconduct and requested an opportunity to reimburse the firm
for her overbilling. On January 5, 2016, she reimbursed the firm $87,620; no
additional restitution is owed.
{¶ 8} The board found that by submitting false time reports to Ulmer &
Berne and by making false or misleading statements in an attempt to conceal her
misconduct, Pickrel violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Consistent with our decision in Disciplinary Counsel v. Bricker, 137 Ohio St. 3d 35,
2013-Ohio-3998, 997 N.E.2d 500, ¶ 21, the board also found that Pickrel’s deceitful
and dishonest pattern of overbilling the firm over the four-year period—essentially
theft—was sufficiently egregious to support a finding that she 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).
{¶ 9} Although Pickrel was not registered as an active attorney at the time
of her misconduct and her conduct did not arise from her practice of law, she
remained subject to the Rules of Professional Conduct. See, e.g., In re Nicotera,
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65 Ohio St. 3d 163, 602 N.E.2d 612 (1992) (attorney’s inactive status does not
preclude discipline); Prof.Cond.R. 8.4, Comment 2 (stating that “[a]lthough a
lawyer is personally answerable to the entire criminal law, a lawyer should be
professionally answerable only for offenses that indicate lack of those
characteristics relevant to law practice” and recognizing that offenses involving
dishonesty and breach of trust fall in that category). We therefore adopt the board’s
findings of fact and misconduct.
Sanction
{¶ 10} When imposing sanctions for attorney misconduct, we consider
several relevant factors, including the ethical duties the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), any other relevant
factors, and the sanctions imposed in similar cases.
{¶ 11} As aggravating factors, the parties stipulated and the board found
that Pickrel acted with a dishonest or selfish motive, engaged in a pattern of
misconduct, and committed multiple offenses. See Gov.Bar V(13)(B)(2), (3), and
(4).
{¶ 12} In mitigation, the parties stipulated and the board found that Pickrel
did not have a prior disciplinary record, made a timely, good-faith effort to make
restitution or rectify the consequences of her misconduct, made full and free
disclosure to the board and demonstrated a cooperative attitude toward the
disciplinary process, and voluntarily refrained from practicing law during the
pendency of the disciplinary proceeding. See Gov.Bar R. V(13)(C)(1), (3), and (4).
{¶ 13} In addition, the board found that Pickrel had established a mitigating
mental-health disorder pursuant to Gov.Bar R. V(13)(C)(7) by submitting evidence
that (a) she had been diagnosed with dysthymia in January 2016, (b) the disorder
had been active for at least two years and had contributed to her misconduct, (c)
she had completed 12 sessions with her treating therapist over a period of nine
months, and (d) she is able to return to the competent, ethical, and professional
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January Term, 2017
practice of law, though her therapist suggested that she would benefit from working
in an office or agency environment where she would have appropriate supervision
and guidance.
{¶ 14} The parties stipulate that the appropriate sanction for Pickrel’s
misconduct is a two-year suspension with one year stayed on the conditions that
she engage in no further misconduct and remain in compliance with the two-year
contract she had entered into with the Ohio Lawyers Assistance Program (“OLAP”)
in January 2016. The board adopted the parties’ recommended sanction with the
additional conditions that Pickrel remain in counseling and follow any OLAP
recommendation to extend the duration of her mental-health contract. The board
further recommended that she be required to serve a two-year period of monitored
probation upon her reinstatement to the practice of law.
{¶ 15} The board acknowledged that we have imposed shorter actual
suspensions and even fully stayed suspensions on other attorneys who have
engaged in employment-related theft or dishonesty. See Cincinnati Bar Assn. v.
Washington, 109 Ohio St. 3d 308, 2006-Ohio-2423, 847 N.E.2d 435 (imposing a
two-year suspension with 18 months conditionally stayed on an attorney who billed
multiple insurance companies more than $91,000 for work he had not performed
and converted $4,000 in retainer fees to his own use); Disciplinary Counsel v.
Markijohn, 99 Ohio St. 3d 489, 2003-Ohio-4129, 794 N.E.2d 24 (imposing a stayed
six-month suspension on an attorney who falsely reported to his law firm and
federal and state taxing authorities that he had made required payments to his
retirement account when he had not done so); Disciplinary Counsel v. Grigsby,
128 Ohio St. 3d 413, 2011-Ohio-1446, 945 N.E.2d 512 (imposing a conditionally
stayed 18-month suspension with monitored probation on an attorney who used an
employer-issued credit card for personal expenses). However, the board believed
that the recommended sanction would help to ensure Pickrel’s continued
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compliance with her OLAP contract and her ability to return to the competent and
ethical practice of law.
{¶ 16} Having considered Pickrel’s lengthy pattern of dishonest and
deceitful billing practices, the applicable mitigating factors, including her
contributing mental disorder and her prompt payment of full restitution, and the
sanctions we have imposed for comparable misconduct, we agree that a two-year
suspension with one year stayed on the conditions recommended by the board is
the appropriate sanction in this case.
{¶ 17} Accordingly, we suspend Patricia Ann Pickrel from the practice of
law for two years with one year stayed on the conditions that she (1) continue to
participate in mental-health counseling with her current therapist or another
qualified professional until her treating professional deems that counseling is no
longer medically necessary, (2) remain in compliance with her January 7, 2016
OLAP contract and any extension of the contract recommended by OLAP, and (3)
engage in no further misconduct. If Pickrel violates any condition of the stay, the
stay will be lifted and she will serve the entire two-year suspension. Furthermore,
upon Pickrel’s reinstatement to the active practice of law following her suspension
and registration as an active attorney, she shall serve a two-year period of monitored
probation in accordance with Gov.Bar R. V(21). Costs are taxed to Pickrel.
Judgment accordingly.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, and
DEWINE, JJ., concur.
FISCHER, J., not participating.
_________________
Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant
Disciplinary Counsel, for relator.
Martin A. Beyer, for respondent.
_________________
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