Disciplinary Counsel v. Hunter

Moyer, C.J.,

dissenting.

{¶ 41} I respectfully dissent from the sanction imposed on respondent by the majority. I believe that the record reveals the existence of mitigating factors sufficient to preclude imposition of the irrevocable sanction of permanent disbarment.

{¶ 42} It is fully appropriate for disbarment to be the presumptive disposition in a disciplinary case when an attorney has stolen from clients. Respondent without question egregiously violated the trust of her clients and her responsibilities to them, as well as to the profession. However, by definition, a presumptive sanction of disbarment does not preclude the application of mitigation. That is, the presumption in favor of disbarment in the case of theft from clients is a rebuttable one.

{¶ 43} This court has rightly acknowledged that the mental illness of an attorney, where proven, should be considered in mitigation when the relationship between that illness and the attorney’s conduct meets certain criteria. Section 10(B)(2)(g) of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”) instructs the board that it may consider mental disability as mitigating when all of the following are present:

{¶ 44} “(i) A diagnosis of a * * * mental disability by a qualified health care professional * * *;

{¶ 45} “(ii) A determination that the * * * mental disability contributed to cause the misconduct;

{¶ 46} “(iii) * * * [A] sustained period of successful treatment;

{¶ 47} “(iv) A prognosis from a qualified health care professional * * * that the attorney will be able to return to competent, ethical professional practice under specified conditions.”

*427{¶ 48} In adopting BCGD Proc.Reg. 10(B)(2)(g), the court established as policy that, while attorney misconduct caused, in part, by an illness of the brain should not be excused, the fact of mental disability or illness should be meaningfully considered in determining a sanction. I am not persuaded that imposition of disbarment in this case is consistent with recognition of respondent’s mental disability.

{¶ 49} In the case at bar, two competent and highly credentialed medical doctors — one a published author of medical texts and a professor of psychiatry at the Cleveland Clinic and the other a psychiatrist retained by the board itself— evaluated respondent’s mental health at the time of her misconduct and following treatment. Both came to professional opinions that respondent suffered from a major depressive disorder. Their testimony clearly establishes the presence of each of the factors set forth in BCGD Proc.Reg. 10(B)(2)(g).

{¶ 50} Jeffrey C. Hutzler, M.D., a psychiatrist, testified regarding respondent’s mental health. Hutzler has served on the faculty of the medical schools of the Ohio State University and the Cleveland Clinic and first saw respondent as a patient in June 2001. He testified that respondent met the diagnosis of mental illness set forth in R.C. 5122.01(A)1 and described her as having “a substantial disorder of mood, * * * of memory, and * * * impaired judgment. * * * [S]he was clearly depressed, which was a problem of mood which was significant.” Dr. Hutzler believed that respondent had first experienced depression in 1998 or 1999 and had not fully recovered by the time of their initial appointment.

{¶ 51} Dr. Hutzler testified that her mental-health problems impaired her ability to distinguish right from wrong. When asked by a panel member whether respondent’s major depression contributed to cause her acts of dishonesty, Dr. Hutzler responded: “I don’t think there is any question that it certainly interfered with her judgment and certainly had an effect on her acts of dishonesty.” In April 2004, his diagnosis of respondent was major depressive disorder, recurrent type, mild, and in remission. He recommended ongoing psychotherapy and testified that his prognosis for respondent was good and that she was likely to recover fully.

{¶ 52} At the request of the board, Dr. Peter Geier conducted an independent psychiatric evaluation of respondent in April 2003. He concluded that respondent had suffered from major depressive disorder from January 2000 through June 2001, but did not suffer from any mental illness at the time of the evaluation.

*428{¶ 53} These unrebutted opinions, expressed with reasonable medical certainty, demonstrated each of the criteria set forth in BCGD Proc.Reg. 10(B)(2)(g). In imposing the sanction of permanent disbarment despite this medical evidence, the majority has not given adequate credit in mitigation to respondent’s diagnosed mental illness.

{¶ 54} In addition, the board received more than 30 letters of endorsement from individuals representing a wide spectrum of the community, including attorneys, judges, clients, and community activists. Despite the egregious misconduct proven by the board during the years surrounding the active phase of her depression, those who have known respondent over many years repeatedly described her as trustworthy, honest, and unusually caring towards her primarily elderly clients. Although such communications are often not relevant to the conduct for which a respondent is sanctioned, they are helpful here in placing respondent’s conduct in perspective. One writer observed, “[Cjlinical depression * * * must have been a significant factor in Sandra’s recent problems as I cannot imagine Sandra engaging in such conduct under any other circumstance.” The letters describe respondent as “trustworthy, altruistic, easy to work with and reliable”; “one of the most knowledgeable, caring and honest attorneys in the office”; “professional in her conduct, very honest and forthcoming”; “honest, fair and completely within the parameters of her legal expertise professionally”; “concern[ed] for the feelings and welfare of her clients”; “a person of the highest degree of integrity and trustworthiness” who has always adhered to the “highest ethical standards” and “has [the colleague’s] complete trust and respect”; and “an excellent attorney — trustworthy, honest, accurate, and punctual with complete knowledge of the laws of Ohio.” One client expressed her hope that respondent “will still be here when [she dies] to help [her] children in a difficult time as she has helped” the client.

{¶ 55} The majority imposes the most severe sanction available for attorney misconduct, even though that sanction was not recommended by the panel that heard the witnesses or the board; nor is it now sought by relator. While this court is responsible for imposing attorney discipline in order to protect the public from a recurrence of similar conduct, we have adopted rules and programs that enable us to achieve this goal without ordering disbarment. Should respondent seek reinstatement from an indefinite suspension after the expiration of the two-year period established by Gov.Bar R. V(10)(B), she would be required to establish “by clear and convincing evidence” that she “possesses all of the mental, educational, and moral qualifications that were required of an applicant for admission to the practice of law in Ohio at the time of * * * her original admission” and that she “is now a proper person to be readmitted to the practice of law in Ohio, notwithstanding the previous disciplinary action.” (Emphasis added.) Gov.Bar R. V(10)(E)(2) and (4). An application for reinstatement would *429trigger a hearing by the board to “take and report evidence relevant to the rehabilitation of the petitioner and his or her possession of all the mental, educational, and moral qualifications” required of an applicant to the bar. (Emphasis added.) Gov.Bar R. V(10)(F). Even then, this court has the authority to order a conditional reinstatement. Gov.Bar R. V(10)(E)(4).2

Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger, Assistant Disciplinary Counsel, for relator. Mary L. Cibella, for respondent.

{¶ 56} This record does not support disbarment. The public would be adequately protected by imposition of an indefinite suspension with the conditions recommended by the board and with the expectation that a full mental-health review would be conducted if and when respondent applied for reinstatement.

{¶ 57} The panel concluded that the matters offered in mitigation, particularly respondent’s “resolved mental disability which contributed to cause the misconduct she is charged with,” justified a sanction less than disbarment. It concluded that “the interests of the profession and society would be better served by permitting her to return to the practice of law upon demonstrating restitution and continued mental health — and candidly admitting where the funds went which she stole.” I agree.

{¶ 58} I would accept the recommendation of the board and would indefinitely suspend respondent from the practice of law in Ohio with the conditions proposed by the board.

Lundberg Stratton, J., concurs in the foregoing dissenting opinion.

. R.C. 5122.01(A) defines mental illness as “a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.”

. Gov.Bar. R. provides, V(10)(E)(4) “The order of reinstatement may be subject to conditions the Supreme Court considers appropriate including, but not limited to, requiring the petitioner to serve a period of probation on conditions the Supreme Court determines * *