Disciplinary Counsel v. Corner (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Corner, Slip Opinion No. 2016-Ohio-359.]
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. 2016-OHIO-359DISCIPLINARY COUNSEL v. CORNER.
COLUMBUS BAR ASSOCIATION v. CORNER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Corner, Slip Opinion No.
2016-Ohio-359.]
Attorney misconduct—Violations of the Rules of Professional Conduct, including
multiple trust-account violations and failing to act with reasonable
diligence in representing a client—Two-year suspension, with second year
stayed on conditions.
(No. 2014-1404—Submitted May 20, 2015—Decided February 3, 2016.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, Nos. 2013-059 and 2014-022.
_______________________
Per Curiam.
{¶ 1} Respondent, Beverly J. Corner of Columbus, Ohio, Attorney
Registration No. 0042725, was admitted to the practice of law in Ohio in 1989.
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{¶ 2} In October 2014, relator disciplinary counsel submitted a three-count
complaint to the Board of Commissioners on Grievances and Discipline1 (“BCGD”
or “board”) alleging, among other things, that Corner had mishandled and failed to
keep required records of the client funds entrusted to her; shared fees with another
lawyer without making required disclosures to her client; and engaged in
dishonesty, fraud, deceit, or misrepresentation. BCGD case No. 2013-059. On
November 14, 2014, a panel of the board found probable cause and directed that
the complaint be accepted for filing. Approximately six weeks later, relator
Columbus Bar Association (“CBA”) submitted a separate complaint, alleging that
Corner committed additional trust-account violations and failed to provide
competent and diligent representation to a bankruptcy client. BCGD case No.
2014-022. On the joint motion of relators and with Corner’s consent, the board
consolidated the two cases for hearing in BCGD case No. 2013-059.
{¶ 3} The parties stipulated to the facts and many of the alleged violations—
although Corner contested the violations alleged in Count Three of disciplinary
counsel’s complaint—as well as aggravating and mitigating factors. After a
hearing, the panel adopted the parties’ stipulations and unanimously dismissed
several alleged violations. The panel also found that Corner had committed both
of the contested violations in Count Three of disciplinary counsel’s complaint.
Weighing the charged misconduct and the applicable aggravating and mitigating
factors and considering the sanctions imposed for comparable misconduct, the
panel recommended that Corner be suspended from the practice of law for two
years with the second year stayed on conditions. The board adopted the findings
of fact, conclusions of law, and recommendation of the panel.
{¶ 4} After the board report was filed in this court, we granted disciplinary
counsel’s motion to remand the matter to the board to address the issue of restitution
1
Effective January 1, 2015, the Board of Commissioners on Grievances and Discipline has been
renamed the Board of Professional Conduct. See Gov.Bar R. V(1)(A), 140 Ohio St.3d CII.
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regarding the violations found by the board in Count Three of his complaint. On
remand, the panel issued a supplemental report stating that it had erroneously found
that Corner had committed the violations alleged in Count Three of disciplinary
counsel’s complaint when it should have dismissed them based on the insufficiency
of the evidence. The board adopted that supplemental report and submitted it to
the court.
{¶ 5} Disciplinary counsel objects and argues that the board exceeded the
scope of this court’s remand order when it recommended the dismissal of two
alleged violations that it previously found Corner to have committed and that he
proved by clear and convincing evidence Corner had committed. He also argues
that Corner’s conduct warrants a two-year actual suspension from the practice of
law.
{¶ 6} For the reasons that follow, we overrule disciplinary counsel’s
objections, adopt the board’s findings of fact and misconduct as modified by the
board’s supplemental report, and suspend Corner from the practice of law for two
years with the second year stayed on conditions.
Misconduct
CBA Complaint—The Packer Matter
{¶ 7} Corner filed a Chapter 13 bankruptcy petition for Tonya Packer in
March 2011. The Chapter 13 trustee objected to confirmation of the bankruptcy
plan and outlined numerous deficiencies in the case, including the use of an
incorrect social security number. Although Corner corrected the social security
number, the trustee noted that other deficiencies had not been addressed, and in
July, the court denied confirmation of the plan and dismissed Packer’s bankruptcy
petition.
{¶ 8} After the bankruptcy court denied Corner’s two motions for
reconsideration, she filed a second Chapter 13 bankruptcy petition on Packer’s
behalf. But she did not prepare and tender an order to extend the bankruptcy stay
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as directed by the court. Consequently, the stay expired and, in the words of the
judge, rendered the bankruptcy “pointless.” When the judge confronted Corner
about her inaction, she stated that she “forgot” to prepare the order.
{¶ 9} In July 2011, the court ordered Corner to disgorge all fees that she had
received in connection with Packer’s bankruptcy proceeding, but she did not
comply with that order or a second disgorgement order. In November 2011, Corner
filed an amended disclosure of compensation stating that she had received no
payments from Packer. A January 2011 invoice, however, reflected that she had
received three payments totaling $1,800. Following a show-cause hearing, the
court granted Packer a judgment of $1,806.65 against Corner. In a separate order,
the court suspended Corner’s electronic-filing privileges and found that she had
failed to adequately represent Packer and that she did “not have sufficient skills to
adequately represent debtors.”
{¶ 10} The parties stipulated that Corner did not maintain Packer’s retainer
in her Interest on Lawyers Trust Account (“IOLTA”) account and that she is
obligated to pay Packer the $1,806.65 specified in the disgorgement order. At the
hearing, Corner submitted evidence demonstrating that she remitted payment to
Packer in April 2014.
{¶ 11} The parties have stipulated and the board found that Corner’s
conduct in the Packer matter 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
the property of clients in an interest-bearing client trust account, separate from the
lawyer’s own property), 1.15(c) (requiring a lawyer to deposit into a client trust
account legal fees and expenses that have been paid in advance), 1.15(d) (requiring
a lawyer to promptly deliver funds or other property that the client or a third party
is entitled to receive), and 8.4(d) (prohibiting a lawyer from engaging in conduct
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that is prejudicial to the administration of justice). We adopt the board’s findings
of fact and misconduct with respect to the CBA’s complaint.
Office of Disciplinary Counsel (“ODC”) Count One—Trust-Account Violations
{¶ 12} Prior to November 15, 2010, Corner was under the mistaken
impression that the bank account in which she held client funds was an IOLTA
account. But she did not treat that account as a client trust account; instead, she
deposited earned fees into the account, thereby commingling personal and client
funds, and used it to pay her personal and business expenses. She opened an
IOLTA account on November 15, 2010, but in March 2011, she overdrew that
account. As a result of that overdraft, disciplinary counsel initiated an investigation
and discovered issues with Corner’s management of the account.
{¶ 13} At the conclusion of a seven-month investigation, Corner assured
disciplinary counsel that she understood her obligation to maintain her IOLTA
account in compliance with the professional conduct rules and agreed that she and
her bookkeeper would attend a continuing-legal-education seminar regarding the
“nuts and bolts” of IOLTA account management on November 30, 2011. Based on
these assurances, disciplinary counsel terminated its investigation on November 29,
2011.
{¶ 14} Despite having attended the seminar on trust-account management,
Corner overdrew her IOLTA account twice in July 2012, triggering a second
investigation by disciplinary counsel. The parties have stipulated that between
January 2012 and May 2013, Corner (1) failed to maintain client ledgers or a
general ledger of client funds in her possession, (2) withdrew funds from her
IOLTA account on an as-needed basis rather than an as-earned basis, often leaving
earned fees in her IOLTA account or causing a shortage of client funds in the
account, (3) used funds from her IOLTA account to pay expenses on behalf of
clients without first receiving or depositing funds from her clients into the account,
and (4) failed to reconcile her IOLTA account on a monthly basis.
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{¶ 15} The parties have stipulated and the board has found that this conduct
violates Prof.Cond.R. 1.15(a), 1.15(a)(2) (requiring a lawyer to maintain a detailed
record for each client on whose behalf funds are held), 1.15(a)(3) (requiring a
lawyer to maintain a detailed record for the lawyer’s client trust account), and
1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of the
funds held in the lawyer’s client trust account). We adopt the board’s findings of
fact and misconduct with respect to this count.
ODC Count Two—Misappropriation of Client Funds
{¶ 16} The parties entered into detailed stipulations regarding Corner’s
misappropriation of client funds in her representation of William and Allene
McCoy, Shannon Smoot, Donna Denney, Meredith Rogan, Marvin Dennis,
Demetra Canon, Alida Powell, and Antonio Sledge. Corner’s misconduct in those
cases consists largely of (1) depositing some settlement checks and retainers into
her business account rather than her IOLTA account, (2) using client funds to pay
her personal and business expenses (including payments to or on behalf of other
clients), (3) failing to promptly pay client expenses out of settlement proceeds , (4)
failing to promptly distribute settlement proceeds to her clients, (5) issuing
incorrect settlement statements that resulted in the inflation of her fee, (6)
withdrawing client retainers before they were earned, and (7) leaving her earned
fees in her IOLTA account and withdrawing them a bit at a time. Corner also
stipulated that she failed to obtain the written consent of a client to share her legal
fees with another attorney and that she falsely advised a client that she could not
promptly distribute settlement funds because her IOLTA account had been
compromised and the bank needed to correct the problem.
{¶ 17} The parties have stipulated that Corner’s conduct violated Prof.Cond
R. 1.5(e) (permitting attorneys who are not in the same firm to divide fees only if
the fee division is proportional to the work performed, the client consents to the
arrangement in writing after full disclosure, and a written closing statement is
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prepared and signed by the client and each lawyer), 1.15(d), and 8.4(c) (prohibiting
a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation). The board adopted the parties’ stipulations of fact and
misconduct with respect to this count, and we adopt them as our own.
ODC Count Three—The Evans Matter
{¶ 18} Disciplinary counsel charged Corner with violating Prof.Cond.R.
1.5(a) (prohibiting a lawyer from making an agreement for, charging, or collecting
an illegal or clearly excessive fee) and 1.15(d) in connection with her representation
of Floyd Evans in a personal-injury matter.2 While the parties submitted stipulated
findings of fact with regard to this count, Corner maintained that her conduct did
not violate the rules as charged in the complaint.
{¶ 19} The board adopted the parties’ stipulated facts, which reflect that
Evans was injured in an automobile accident while working as a driving instructor
on July 1, 2010. The next day, he retained attorney Michael Gertner to represent
him in exchange for a 30 percent contingent fee. Evans later terminated Gertner’s
representation and signed a 30 percent contingent-fee agreement with Corner.
Gertner informed Corner that he was asserting an $11,133.49 lien on Evans’s
settlement proceeds for his services. Corner disputed the value of Gertner’s
services but ultimately agreed to pay him $9,333.49 for the services he had rendered
to Evans.
{¶ 20} Evans agreed to settle his personal-injury matter for $145,000—
$65,000 from his employer and $80,000 from the tortfeasor. Corner deposited a
$65,000 settlement check on December 26, 2011. That same day, she distributed
$45,500 to Evans and his wife, wrote herself a check for $19,000, and left the
remaining $500 in her IOLTA account.
2
Relator also charged Corner with a violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from
engaging in conduct that adversely reflects on the lawyer’s fitness to practice law), but the parties
agreed to dismiss that alleged violation.
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{¶ 21} On February 1, 2013, Corner deposited a $70,666.51 check into her
IOLTA. That check represented the tortfeasor’s portion of the Evans settlement,
less $9,333.49 that Corner had agreed the insurer could pay directly to Gertner for
his services.
{¶ 22} When disbursing the remaining settlement proceeds, Corner treated
Gertner’s attorney fee like any other litigation expense and deducted it from
Evans’s share of the proceeds rather than from her 30 percent contingent fee. She
paid herself $24,000 in attorney fees plus $100 in expenses and paid Evans
$14,215.56 because she had erroneously omitted an additional $2,505 medical bill
from her settlement-disbursement sheet. All told, Evans paid $52,833.49 in
attorney fees to Corner and Gertner out of his $145,000 settlement.
{¶ 23} In their initial reports, the panel and board found that Corner had
charged an illegal or clearly excessive fee and that she had failed to promptly
deliver funds or other property that a client or third party was entitled to receive in
violation of Prof.Cond.R. 1.5(a) and 1.15(d). But after we remanded the matter to
the board to address the issue of restitution, the panel and board issued a
supplemental report stating that the alleged violations in this count should have
been dismissed due to the insufficiency of the evidence.
Discussion
The Board Did Not Exceed the Scope of Our Remand
{¶ 24} In his first objection, disciplinary counsel argues that the board
exceeded the scope of our remand by recommending that we dismiss the alleged
violations of Prof.Cond.R. 1.5(a) and 1.15(d) instead of recommending the amount
that Corner should be ordered to pay Evans in restitution. He argues that the board
should not have revised its previous recommendation, because the decision of a
reviewing court in a case remains the law of that case on the legal questions
involved for all subsequent proceedings in the case at both the trial and reviewing
levels.
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{¶ 25} We acknowledge that the law-of-the-case doctrine plays an
important role in our jurisprudence, imparting finality and consistency of result to
the rule of law. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). But
there was no law of the case in this matter when we remanded it to the board
because the board’s report was a nonbinding recommendation and we had yet to
decide any of the issues presented. See Gov.Bar R. V(2)(B)(1) (granting the board
the authority to receive evidence, preserve the record, make findings, and submit
recommendations to this court concerning complaints of misconduct that are
alleged to have been committed by a judicial officer or an attorney); Ohio State Bar
Assn. v. Reid, 85 Ohio St.3d 327, 708 N.E.2d 193, paragraph one of the syllabus
(1999) (holding that in disciplinary cases, the Supreme Court renders the final
determination of the facts and conclusions of law and is not bound by the findings
of the board).
{¶ 26} Thus, to the extent that the board may have exceeded the scope of
our remand by correcting what it determined to be erroneous findings of
misconduct, it answered our question by stating that in its view, there was no
misconduct in the Evans matter and the issue of restitution was moot. Therefore,
we find no fault with the board’s actions in this case and overrule disciplinary
counsel’s first objection.
Insufficient Evidence Was Presented to Establish that
Corner Charged a Clearly Excessive Fee
{¶ 27} In his second objection, disciplinary counsel contends that Corner
charged a clearly excessive fee because she deducted the fees paid to Evans’s
former attorney from Evans’s share of the settlement proceeds, while she collected
the full 30 percent contingent fee set forth in her own fee contract. Disciplinary
counsel concedes that the total attorney fees that Evans paid—$52,833.49 or 36.4
percent of his $145,000 settlement—is not, in and of itself, clearly excessive. But
he contends that when viewed against the two contingent-fee agreements, in which
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Evans agreed to pay just 30 percent of any settlement to his respective attorney, this
36.4 percent fee is clearly excessive. In support of this argument, disciplinary
counsel relies on the following holding of the Indiana Supreme Court: “ ‘[O]nly
one contingency fee should be paid by the client, the amount of the fee to be
determined according to the highest ethical contingency percentage to which the
client contractually agreed [and] * * * that fee should in turn be allocated between
or among the various attorneys involved in handling the claim in question.’ ”
(Brackets and ellipsis sic.) Galanis v. Lyons & Truitt, 715 N.E.2d 858, 863
(Ind.1999), quoting Saucier v. Hayes Dairy Prods., Inc., 373 So.2d 102, 118
(La.1979).
{¶ 28} Galanis established a default rule that in the state of Indiana, clients
who enter into contingent-fee agreements with successive attorneys should pay
only one contingent fee and that that fee should be “apportioned according to the
respective services and contributions of the lawyers based on the work each
performed.” Id. at 863. But the Indiana Supreme Court clearly stated that that rule
should apply only “in the absence of express written fee arrangements providing
otherwise,” and it anticipated that the vast majority of such fee arrangements would
be resolved by agreement between the client and the affected lawyers. Id. at 858,
864. Here, we have such a writing.
{¶ 29} Shortly after Evans retained Corner to handle his personal-injury
matter, she wrote to Gertner to request the file and offer to protect his attorney fees.
Gertner claimed to have an $11,133.49 lien on any settlement obtained in the case,
but when Evans disputed that amount, Corner negotiated the bill down to
$9,333.49, and she testified that Evans agreed to pay that amount. Although it does
not appear that their agreement was immediately reduced to writing, Evans signed
the settlement-disbursement sheet, which plainly reflected the payment of Corner’s
30 percent contingent fee, plus other expenses, including Evans’s medical expenses
and Gertner’s attorney fees of $9,333.49. This undisputed writing, signed by
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Evans—who did not testify at the hearing—reflects that he agreed to pay Gertner’s
fee out of his share of the settlement proceeds. Thus, it is not necessary for us to
adopt the default rule advanced by disciplinary counsel to resolve this case.
{¶ 30} Based on the evidence before us, and having considered the factors
set forth in Prof.Cond.R. 1.5(a)3 for determining the reasonableness of an attorney
fee, we cannot find that an attorney of ordinary prudence would be left with a
definite and firm conviction that the fees Evans agreed to pay—$52,833.49 or 36.4
percent of his $145,000 personal-injury settlement—are in excess of a reasonable
fee. See Prof.Cond.R. 1.5(a) (“[a] fee is clearly excessive, when after a review of
the facts, a lawyer of ordinary prudence would be left with a definite and firm
conviction that the fee is in excess of a reasonable fee” [emphasis deleted]). We
therefore overrule disciplinary counsel’s second objection and dismiss the alleged
violation of Prof.Cond.R. 1.5(a).
Corner’s Distribution in the Evans Matter Did Not Violate Prof.Cond.R. 1.15(d)
{¶ 31} In his third objection, disciplinary counsel argues that he has proven
by clear and convincing evidence that Corner violated Prof.Cond.R. 1.15(d) by
tendering to Grant Medical Center a check for $2,505 less than it was owed for
Evans’s medical treatment. The undisputed evidence shows that Corner took that
3
The eight factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
Prof.Cond.R. 1.5(a).
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action upon discovering that she had mistakenly omitted another $2,505 medical
bill from the settlement-disbursement sheet and had consequently distributed an
extra $2,505 to Evans in error. Although Corner sent Evans a letter informing him
that it was his responsibility to make an additional $2,505 payment to Grant
Medical Center as a result of her error, the hospital ultimately accepted the reduced
payment as complete satisfaction of the debt.
{¶ 32} While we do not condone Corner’s lax accounting procedures, we
find that the net effect of her actions, coupled with those of the hospital, was to
settle her client’s liability for less than he owed, leaving him in possession of an
additional $2,505. Based on the unique facts of this case and the evidence before
us, we cannot find that Corner’s error and subsequent actions to correct it violated
the rules of professional conduct. Therefore, we overrule disciplinary counsel’s
third objection and dismiss Count Three of his complaint in its entirety.
Sanction
{¶ 33} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties 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(B).4 Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251,
875 N.E.2d 935, ¶ 21.
{¶ 34} As aggravating factors, the parties have stipulated and the board
found that Corner engaged in a pattern of misconduct that involved multiple
offenses. See BCGD Proc.Reg. 10(B)(1)(c) and (d).
{¶ 35} In mitigation, the board adopted the parties’ stipulations that Corner
has no prior disciplinary record and has cooperated with the investigations
4
Effective January 1, 2015, the aggravating and mitigating factors previously set forth in BCGD
Proc.Reg. 10(B) are codified in Gov.Bar R. V(13), 140 Ohio St.3d CXXIV.
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conducted by disciplinary counsel and the Columbus Bar Association. See BCGD
Proc.Reg. 10(B)(2)(a) and (d). The panel also heard testimony from Jason Coale,
a licensed independent social worker who diagnosed and began treating Corner for
a depressive disorder in July 2013. Based on information Coale obtained from
Corner during her treatment, he testified that her depression reached deep into her
past and that it contributed to her misconduct. He reported that her condition was
improving with treatment, and he opined that with ongoing treatment and systems
in place to keep her current with her ethical obligations, she is able to return to the
competent, ethical, and professional practice of law. Although the board expressed
some reservations about Coale’s credibility, it nonetheless found that Corner’s
mental disability qualified as a mitigating factor pursuant to BCGD Proc.Reg.
10(B)(2)(g). And we find that on July 17, 2013, Corner entered into a four-year
mental-health contract with the Ohio Lawyers Assistance Program, Inc. (“OLAP”),
requiring her to continue her individual counseling and follow up with certain
medical professionals.
{¶ 36} In determining the appropriate sanction for Corner’s misconduct, the
board found that we imposed two-year suspensions, with the second year stayed on
conditions, for comparable misconduct in Disciplinary Counsel v. Talikka, 135
Ohio St.3d 323, 2013-Ohio-1012, 986 N.E.2d 954, and Disciplinary Counsel v.
Folwell, 129 Ohio St.3d 297, 2011-Ohio-3181, 951 N.E.2d 775.
{¶ 37} Talikka, an attorney with more than 40 years of experience, failed to
act with reasonable diligence in three separate client matters, failed to inform two
clients that their cases had been dismissed, failed to refund the unearned portion of
his retainers, failed to properly administer client funds that he should have held in
trust, and failed to maintain records regarding the funds that were required to be
held in a client trust account. Talikka at ¶ 6-7. He also failed to have three personal-
injury clients sign closing statements detailing the distribution of their settlement
proceeds, failed to promptly distribute all of the funds that his clients were entitled
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to receive, and stipulated that he had engaged in dishonesty, fraud, deceit, or
misrepresentation in five client matters. Id. at ¶ 8, 9.
{¶ 38} Similarly, Folwell, an attorney with 20 years of experience, engaged
in a pattern of misconduct involving seven separate client matters in which he failed
to provide competent representation, failed to act with reasonable diligence, failed
to maintain required records for his client trust account, improperly used client
funds for his own purposes, and engaged in conduct involving dishonesty, fraud,
deceit, or misrepresentation. Folwell at ¶ 5-31. He also accepted retainers from
clients and failed to perform their work, unreasonably delayed performing work,
led a client to believe that his case had been filed when it had not, and made empty
promises to refund the unearned portions of his fees. Id. at ¶ 13, 15-28.
{¶ 39} Having considered Corner’s conduct and the applicable aggravating
and mitigating factors, the board found that the sanction imposed in Talikka and
Folwell was appropriate here. Therefore, the board recommended that Corner be
suspended from the practice of law for two years with the second year stayed. The
board further recommended that Corner’s reinstatement be conditioned on her
continued treatment for her depression, compliance with her OLAP contract, and
her submission of documentation from OLAP or a qualified medical professional
stating that she is competent to return to the practice of law.
{¶ 40} Disciplinary counsel objects to the recommended sanction, arguing
that it is too lenient given Corner’s misconduct and her propensity to place her own
interests above those of her clients. He attempts to distinguish the sanctions
imposed in Talikka and Folwell on the ground that they were stipulated sanctions,
while the sanction in this case is contested. Disciplinary counsel notes that three
members of this court believed that Talikka’s misconduct warranted an indefinite
suspension from the practice of law. See Talikka at ¶ 101 (O’Connor, C.J., joined
by Lanzinger and French, JJ., dissenting). Moreover, disciplinary counsel contends
that while Talikka practiced for more than 40 years without incident, Corner
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continued to engage in the misconduct here during an earlier disciplinary
investigation that did not result in disciplinary charges against her. But Corner also
practiced law without incident for more than 20 years before disciplinary counsel
initiated its first investigation into her misconduct—an investigation that was
dismissed without any formal charges being filed. And Talikka stipulated that he
owed nearly $49,000 in restitution to three clients, Talikka at ¶ 15—more than two
and a half times the amount that Corner is claimed to have misappropriated.
{¶ 41} Disciplinary counsel notes that in Disciplinary Counsel v. Leksan,
136 Ohio St.3d 85, 2013-Ohio-2415, 990 N.E.2d 591, ¶ 29, 33, 35, his predecessor
recommended a two-year actual suspension for misconduct that included
dishonesty, fraud, deceit, or misrepresentation; the improper handling of client
funds; the failure to maintain adequate records of client funds in his possession; and
the misappropriation of client funds for personal and business expenses. Although
we acknowledged multiple mitigating factors in that case—including Leksan’s
cooperation in the disciplinary process; his diagnosed depression, alcohol, and
gambling addictions that were causally related to his conduct; his aggressive
treatment for those conditions; and his voluntary restoration of most of the
misappropriated funds before his misconduct was discovered—we indefinitely
suspended Leksan on the board’s recommendation. Id. at ¶ 26-35.
{¶ 42} Recognizing that Corner misappropriated far less than Leksan, but
arguing that her conduct is more egregious than that of both Talikka and Folwell,
disciplinary counsel urges us to impose a two-year actual suspension from the
practice of law in this case. We do not find disciplinary counsel’s arguments to be
persuasive.
{¶ 43} Balancing all the relevant factors, we find the sanction imposed in
Talikka and Folwell to be most instructive. Given Corner’s cooperation in the
disciplinary process, her mitigating mental-health diagnosis, her ongoing mental-
health treatment, and her four-year OLAP contract, we believe that the board’s
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recommended sanction is appropriate in this case. Therefore, we overrule
disciplinary counsel’s fourth objection and adopt the findings of fact, conclusions
of law, and recommendation of the board.
{¶ 44} Accordingly, Beverly J. Corner is suspended from the practice of
law in Ohio for two years, with the second year stayed on the conditions that she
engage in no further misconduct, continue to participate in appropriate mental-
health treatment with a licensed professional, and remain in full compliance with
her July 17, 2013 OLAP contract. If Corner fails to comply with these conditions,
the stay will be lifted and she will serve the full two-year suspension. Upon
applying for reinstatement, Corner shall be required to submit documentation from
a qualified mental-health professional to demonstrate that she is capable of
returning to the competent, ethical, and professional practice of law. Costs are
taxed to Corner.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
LANZINGER, J., dissents and would indefinitely suspend the respondent.
_________________
Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond and Stacy
Solochek Beckman, Assistant Disciplinary Counsel, for relator Disciplinary
Counsel.
Judith McInturff, Robert J. Morje, Lori J. Brown, Bar Counsel, and A.
Alysha Clous, Assistant Bar Counsel, for relator Columbus Bar Association.
James E. Arnold & Associates, L.P.A., and Alvin E. Matthews Jr., for
respondent.
_________________
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