Disciplinary Counsel v. Thomas

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Thomas, Slip Opinion No. 2016-Ohio-1582.]
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
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-1582
DISCIPLINARY COUNSEL v. THOMAS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Thomas, Slip Opinion
No. 2016-Ohio-1582.]
Attorneys—Misconduct—Attorney convicted of felony theft offenses and
misdemeanor falsification offenses for misappropriating funds from
vulnerable, elderly, court-appointed clients and filing false inventories with
the probate court—Illegal acts that reflect adversely on lawyer’s honesty—
Conduct involving fraud, deceit, and misrepresentation—Conduct
prejudicial to the administration of justice—Knowingly making false
statements to a tribunal—Knowingly offering false evidence—Indefinite
suspension—Reinstatement conditioned on restitution, substance-abuse
treatment, and other requirements.
(No. 2015-1001—Submitted November 17, 2015—Decided April 20, 2016.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the
Supreme Court, No. 2014-081.
SUPREME COURT OF OHIO
_______________________
Per Curiam.
{¶ 1} Respondent, James William Thomas Jr., formerly of Eaton, Ohio,
Attorney Registration No. 0074051, was admitted to the practice of law in Ohio in
2001. We suspended Thomas’s license on an interim basis, effective July 22, 2014,
after he was convicted of two counts of theft and one count of theft from the
elderly—all felonies committed against individuals for whom he served as a court-
appointed guardian—and three misdemeanor counts of falsification. See In re
Thomas, 140 Ohio St. 3d 1224, 2014-Ohio-3174, 15 N.E.3d 871.
{¶ 2} In an October 29, 2014 complaint, relator, disciplinary counsel,
charged Thomas with multiple violations of the Rules of Professional Conduct
arising from his felony convictions. Thomas admitted each of the allegations in his
answer and entered into joint stipulations of fact, misconduct, and aggravating and
mitigating factors.
{¶ 3} A panel of the Board of Professional Conduct granted the parties’
motion to waive the hearing and adopted the parties’ stipulations. The panel also
adopted the parties’ recommendation that Thomas be indefinitely suspended from
the practice of law in Ohio. In addition, the panel recommended that Thomas be
credited for the time served under his interim felony suspension and that his
reinstatement be conditioned on completion of his term of incarceration, payment
of restitution, compliance with all terms and conditions of his criminal probation,
completion of an approved treatment program for substance abuse and addiction,
and ongoing treatment for his drug addiction. The board adopted the panel’s
findings of fact and misconduct, aggravating and mitigating factors, and sanction,
with some modifications to the requirement for restitution.
{¶ 4} Following a remand by this court for additional consideration of the
recommended conditions for Thomas’s reinstatement, the board issued a revised
recommendation regarding Thomas’s restitution obligation.
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{¶ 5} We adopt the board’s findings of fact and misconduct and its
recommended sanction, as amended by the board’s supplemental report and
recommendation. We do not, however, credit Thomas for the time served under
his interim felony suspension.
Misconduct
{¶ 6} Thomas was charged in an April 28, 2014 bill of information with two
third-degree-felony counts of theft in violation of R.C. 2913.02(A)(3), one fourth-
degree-felony count of theft from an elderly or disabled person in violation of R.C.
2913.02(A)(3), and three first-degree-misdemeanor counts of knowingly making a
false statement or knowingly swearing or affirming the truth of a previously made
false statement in violation of R.C. 2921.13(A)(10). Thomas pleaded no contest to
the charges, which arose out of his theft of funds from four individuals for whom
he served as a court-appointed guardian and his subsequent attempts to conceal the
thefts by filing false inventories with the Preble County Probate Court. He was
sentenced to a four-and-one-half-year prison term and ordered to make restitution
of $208,095.15, to be distributed to his former clients as follows: $115,112.75 for
the benefit of J.S.,1 $72,149.40 for the benefit of E.T., $17,487 for the benefit of
R.B., and $3,346 for the benefit of K.O.
{¶ 7} Based on the parties’ stipulations and supporting documents, the
board found that by misappropriating funds from individuals for whom Thomas
was appointed to serve as a guardian, he 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), 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).
The board also found that his filing of false inventories with the Preble County
1
The guardian appointed to represent the estate of J.S. settled J.S.’s claims against Thomas and
received $89,950 from his professional-liability carrier in 2015.
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SUPREME COURT OF OHIO
Probate Court to conceal his theft of funds from his wards violated Prof.Cond.R.
3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or
law to a tribunal), 3.3(a)(3) (prohibiting a lawyer from knowingly offering evidence
that the lawyer knows to be false), 8.4(b), 8.4(c), and 8.4(d). No objections have
been filed.
{¶ 8} We adopt these findings of fact and misconduct.
Sanction
{¶ 9} 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 set forth in
Gov.Bar R. V(13)(A) through (C). See, e.g., Disciplinary Counsel v. Broeren, 115
Ohio St. 3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 10} The parties stipulated and the board found that two aggravating
factors are present. Thomas acted with a dishonest or selfish motive by using the
money that he misappropriated from his wards primarily to maintain his addiction
to ephedrine and to compensate for the loss of law-practice income occasioned by
that addiction. See Gov.Bar R. V(13)(B)(2). He engaged in multiple offenses,
stealing funds from at least four of his wards on multiple occasions over a period
of more than six years and attempting to conceal his theft of those funds by filing
false inventories with the probate court on at least three occasions. See Gov.Bar R.
V(13)(B)(4). In addition to these aggravating factors, we also find that Thomas
engaged in a pattern of misconduct that harmed vulnerable clients by
misappropriating more than $200,000 over a period of six years from the wards he
was court-appointed to protect. See Gov.Bar R. V(13)(B)(3) and (8).
{¶ 11} The board also adopted the parties’ stipulations with respect to the
applicable mitigating factors. It found that Thomas did not have a prior disciplinary
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January Term, 2016
record2 and that he had made a full and free disclosure to the board and
demonstrated a cooperative attitude toward the proceedings, fully admitting his
wrongdoing in his answer and in his agreed stipulations. See Gov.Bar R.
V(13)(C)(1) and (4). The board accorded mitigating effect to his good character
and reputation apart from the charged misconduct and to the imposition of other
penalties and sanctions, including his four-and-one-half-year prison sentence and
criminal restitution order. See Gov.Bar R. V(13)(C)(5) and (6).
{¶ 12} Consistent with the stipulations, the board also determined that
Thomas had made a timely, good-faith effort to make restitution or to rectify the
consequences of his misconduct. This finding was based on an $89,950 settlement
paid to the guardian of J.S. by Thomas’s professional-liability-insurance carrier, a
refund of $1,650 paid by Thomas’s father to two other clients who were not
identified in these proceedings, and an agreement that Thomas’s father would make
monthly restitution payments of $750, to be apportioned among the three other
identified victims of Thomas’s misconduct. See Gov.Bar R. V(13)(C)(3). We
reject this finding because the effort to make restitution was not timely and because
J.S.’s new guardian had to resort to a lawsuit and obtain a default judgment against
Thomas, ultimately accepting a substantially reduced amount from Thomas’s
professional-liability-insurance carrier. Moreover, there is no evidence that
Thomas has made any effort to make restitution to the other victims of his
misconduct. On the contrary, the evidence demonstrates that Thomas’s father has
voluntarily agreed to make restitution payments of $750 per month for two years,
with the payments to be apportioned to the victims of Thomas’s misconduct. But
those payments will only account for $18,000 of Thomas’s court-ordered
obligation, which currently exceeds $90,000.
2
During the pendency of this action, however, we suspended Thomas’s license to practice based on
his failure to timely register for the 2015-2016 biennium. In re Attorney Registration Suspension of
Thomas, 143 Ohio St. 3d 1509, 2015-Ohio-4567, 39 N.E.3d 1277.
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SUPREME COURT OF OHIO
{¶ 13} The board adopted the parties’ stipulation that Thomas’s diagnosis
of an addiction to ephedrine was a mitigating factor because (1) the addiction
significantly contributed to his misconduct, (2) he successfully completed a five-
week residential treatment program after his criminal conviction but before his
sentence, and (3) his addictive behaviors are less likely to recur if he remains in
recovery.
{¶ 14} The board recommends that Thomas be indefinitely suspended from
the practice of law with credit for the time he has served under his interim felony
suspension and that his reinstatement to the practice of law be subject to the
following conditions: (1) completion of his period of incarceration, (2) payment of
restitution for the benefit of E.T. ($72,149.40), R.B. ($17, 487), and K.O. ($3,346),
(3) compliance with all terms and conditions of his criminal probation, (4)
successful completion of a substance-abuse and addiction-treatment program
approved by the Ohio Lawyers Assistance Program (“OLAP”), and (5)
participation in an addiction-treatment program up to and through any attempt to
seek reinstatement.
{¶ 15} In support of this sanction, the board cites two cases in which we
have indefinitely suspended attorneys who misappropriated funds while serving in
positions of trust. While serving as a court-appointed guardian, one attorney made
unauthorized withdrawals of more than $20,000 from his ward’s account, used the
funds to pay his personal expenses, made false statements in documents filed with
the probate court, and pleaded guilty to one fifth-degree-felony charge of theft.
Disciplinary Counsel v. Zapor, 127 Ohio St. 3d 372, 2010-Ohio-5769, 939 N.E.2d
1230, ¶ 3-4. The aggravating and mitigating factors in Zapor were comparable to
those present here, except that the parties did not stipulate and Zapor failed to prove
that his alcohol-abuse and gambling problems contributed to his misconduct. Id. at
¶ 7-9. Because he had confessed to the misappropriation, he seemed genuinely
contrite, and his testimony suggested that he had taken steps to resolve his
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January Term, 2016
substance-abuse and gambling problems, we adopted the board’s recommended
sanction of an indefinite suspension with no credit for time served under his interim
felony suspension. Id. at ¶ 12. We also conditioned his reinstatement on the
extension of his OLAP contract and his compliance with the terms of that contract.
Id.
{¶ 16} And in Disciplinary Counsel v. Anthony, 138 Ohio St. 3d 129, 2013-
Ohio-5502, 4 N.E.3d 1006, we indefinitely suspended Anthony for
misappropriating at least $118,000 from his employer to pay his personal expenses
and to maintain his gambling addiction. Id. at ¶ 4. Although Anthony could not
demonstrate that his pathological gambling disorder was a mitigating factor
because he had only begun treatment three months before his disciplinary hearing,
we nonetheless accorded it some mitigating effect. Id. at ¶ 13. That factor,
combined with his disclosure of his misconduct to the disciplinary board, his
cooperation in the disciplinary investigation, and his criminal sentence for his
resulting grand-theft conviction, led us to adopt the board’s recommended sanction
of an indefinite suspension. Id. at ¶ 13, 18-19.
{¶ 17} Having considered Thomas’s misconduct, the applicable
aggravating and mitigating factors, and the sanctions imposed for comparable
misconduct, we agree that the appropriate sanction in this case is an indefinite
suspension. But given the magnitude of his theft from the vulnerable people he was
appointed to protect, his pattern of misconduct over a period of more than six years,
and his failure to make full restitution, we decline to grant him credit for the time
served under his interim felony suspension.
{¶ 18} Accordingly, James William Thomas Jr. is indefinitely suspended
from the practice of law in Ohio and, in addition to the requirements of Gov.Bar R.
V(25), his reinstatement shall be conditioned upon his (1) completion of his period
of incarceration, (2) payment of restitution for the benefit of former clients E.T.
($72,149.40), R.B. ($17,487), and K.O. ($3,346) as set forth in the restitution order
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SUPREME COURT OF OHIO
in his criminal case, (3) compliance with all terms and conditions of his criminal
probation, (4) successful completion of an OLAP-approved substance-abuse and
addiction-treatment program, (5) execution of an OLAP contract for a term to be
determined by OLAP, and (6) full compliance with all treatment recommendations
of OLAP and his treating professionals. Costs are taxed to Thomas.
Judgment accordingly.
PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., dissent and would
permanently disbar the respondent.
_________________
Scott J. Drexel, Disciplinary Counsel, for relator.
Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, for
respondent.
_________________
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