dissenting.
{¶ 28} Today this court indefinitely suspends respondent based on one incident of misconduct, the misuse of client funds that were to pay medical providers, assessing a penalty normally reserved for an attorney engaging in a pattern of misconduct. Because I believe that the majority uses respondent’s mental illness to justify a stronger sanction, I dissent.
*100{¶ 29} Both experts diagnosed respondent as having bipolar disorder. In adopting the panel’s findings, the board agreed with Dr. Weinstein’s conclusions that respondent had not had a sustained period of successful treatment and was not able to practice without risk to clients. This conclusion was based on respondents’ history of resisting recommended treatment measures.
{¶ 30} Dr. Weinstein testified that in addition to bipolar disorder, respondent suffers from a personality disorder, an even more serious condition that can be less amenable to treatment, according to Dr. Weinstein, who also testified that this personality disorder was a contributing factor in respondent’s misconduct. However, Dr. Weinstein testified that respondent’s lack of guilt and concern regarding his obligations to others, a psychopathic component, is a part of respondent’s diagnosis that respondent does not acknowledge.
{¶ 31} Clearly, protecting clients from attorney misconduct is paramount. In my view, respondent can be sufficiently disciplined by his suspension from the practice of law for a definite period of time on the condition that he must comply with the requirements of Gov.Bar R. V(10)(E)(2) and submit a report from a qualified mental-health professional establishing that he has successfully completed a treatment program, that he is continuing treatment, and that he can, to a reasonable degree of medical certainty, return to the competent, ethical, and professional practice of law. Further, upon reinstatement, respondent should also serve a three-year probation, during which he shall (1) continue treatment with a qualified mental-health professional, comply with all orders for medication and appointments, and arrange for quarterly reports to relator on his progress, and (2) allow his practice to be monitored by an attorney of relator’s choice, who shall counsel respondent on case management, financial responsibility, and client communication. See Gov.Bar R. V(9). These conditions, recommended by the panel, would protect the public.
{¶ 32} However, we have instead indefinitely suspended respondent. Because he had one disciplinary action unrelated to this complaint in May 2003, I agree that this misconduct merits an actual suspension. However, we usually reserve an indefinite suspension for a more severe pattern of misconduct.
{¶ 33} The panel that heard the case recommended a 24-month suspension with 18 months stayed upon the very restrictive conditions recited previously. However, the board and this court have increased the discipline to an indefinite suspension, citing in part respondent’s mental illness and noncompliance with treatment. His treating physician clearly related the noncompliance to his mental illness: it was indeed a part of the manifestation of his mental illness. Mental illness is usually a mitigating factor, not an aggravating favor, in disciplinary cases.
Robert L. Steely; Ellen S. Mandell, Bar Counsel; and Jeremy T. Browner, for relator. William T. Doyle, for respondent.{¶ 34} We have a formal process that may be use.d to suspend an attorney with a mental illness that substantially impairs his or her ability to practice law. See Gov.Bar R. Y(7). The mental-illness suspension process, however, does not make a finding of fault on the underlying complaints. If the majority believes that respondent is not fit to practice because of his mental illness, a mental-illness suspension is the appropriate process by which to suspend respondent, not an increase in discipline.
{¶ 35} To indefinitely suspend respondent based on one incident of misconduct following his stayed suspension in 2003 is to use his mental illness as a sword against him. I respectfully dissent.