Opinion
No. D.D. 87-30
Submitted April 13, 1988 —
Decided September 28, 1988.
Attorneys at law — Misconduct — Indefinite suspension upon conditions — Failure to preserve identity of client's funds — Monitoring and supervision for alcoholism and drug addiction.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline of the Bar, No. 21-86-B.
Relator, Columbus Bar Association, filed the instant complaint alleging, in the main, that respondent, Sterling E. Gill II, endorsed his client's name on a settlement check for $7,000 without her knowledge or permission, converted $4,700 of that amount to his own use, and failed to account for the funds in his possession. Relator charged that this conduct violated DR 9-102 (failing to preserve the identity of a client's funds and property). In his answer, respondent admitted these factual allegations as well as that he had violated the Disciplinary Rule cited.
The matter was heard by a panel of the Board of Commissioners on Grievances and Discipline of the Bar on June 19, 1987. In light of respondent's answer and the concessions made in the parties' subsequently submitted stipulations, the evidence presented at the disciplinary hearing went only to the proper method of disciplining respondent, a recovering alcoholic and drug addict who had been chemically dependent at the time of his misconduct. Accordingly, the board ultimately found that respondent had violated DR 9-102.
The record reflects that after abusing cocaine, Valium, and alcohol for years, respondent admitted himself to a detoxification center in the spring of 1986. One week later, respondent entered the substance abuse program offered for professionals by Shepherd Hill Hospital in Newark, Ohio.
According to the stipulations, respondent was hospitalized shortly after he was deposed in connection with these proceedings. Respondent testified falsely about his problems with substance abuse under oath during that deposition, but after discussions with his counsel, acknowledged that his statements had not been truthful. Thereafter, his counsel persuaded him to seek medical attention.
Two specialists in the treatment of alcohol and chemical dependency explained the treatment of substance abuse and provided insight into the disease itself. Dr. Paul C. Redman, Medical Director of Shepherd Hill and respondent's treating physician, and Dr. Michael D. McNeer of Harding Hospital in Worthington, Ohio, testified that chemical dependence involves the spectrum of mood-altering substances, whether inhaled, injected, or consumed. Chemical dependence can be diagnosed according to the following criteria: (1) the abuser's development of tolerance, where increasing amounts of a substance are required to achieve the same effect; (2) the abuser's physiologic dependence, where abstinence produces very predictable withdrawal symptoms; and (3) the abuser's continued use despite adverse consequences. Dr. Redman emphasized that the addicted abuser takes the substance because his body requires it; there is no choice or control. Dr. Redman added that chronic abuse produces not only the obvious behavioral changes exhibited by one under the influence of drugs or alcohol, but it will also explain changes in the abuser's general value system. According to Dr. McNeer, chemical dependence causes people to behave in ways contrary to their moral upbringing, philosophy, and integrity. Moreover, dishonesty may become an essential coping mechanism in the practicing addict. Dr. Redman further explained that chemical dependence on Valium and cocaine, in particular, can persist in abnormal abstract reasoning and judgment for a matter of months even after the abuser has stopped administering these drugs.
Both experts attested that the medical community no longer subscribes to the "sin model," the theory that alcoholism and drug addiction are the result of weak character or morals. Rather, these afflictions are generally accepted to be diseases caused by an imbalance of neurotransmitters, the brain's implement for transmitting electrical impulses to the next receiving fiber, the neuron. According to the experts, this imbalance interferes with the brain's abstract reasoning process. We tacitly recognized this development in Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478, by holding that drug and alcohol addiction constitute handicaps under Ohio's civil rights statute.
The experts agreed that an abuser's acceptance of his disease is central to his recovery. Both experts also agreed that the treatment of chemically dependent professionals, especially attorneys and doctors, ordinarily requires an extended and comprehensive recovery program to be successful. Thus, while some substance abuse programs may be completed in a considerably shorter amount of time, Shepherd Hill offers a long-term, four-phase plan in which the professional patient is first hospitalized for approximately a month and educated about his disease. Over the next three months, the patient lives in a halfway house and is later placed into an appropriate professional setting with supervision. Gradually, the patient is reintroduced to his work environment. After treatment, however, he has an improved understanding of his addiction and is better equipped to acceptably respond to its symptoms. Upon discharge from the program, the patient makes a twenty-month commitment to aftercare monitoring, including regular attendance at a variety of organizational meetings, designed to assist the abuser's recovery, and random testing should he demonstrate defined behavior indicating the possibility of relapse. Dr. Redman testified that eighty-eight percent of those patients who had completed this program are successful in abstaining completely from drug or alcohol use.
Dr. Redman provided the eleven warning signals of relapse during the disciplinary hearing as well. These symptoms, which include irritability, denial, defensiveness, failure to comply with urinalysis testing upon request, and failure to regularly attend treatment meetings, almost always occur before the recovering substance abuser actually resorts to using alcohol or drugs again. The symptoms are readily spotted by those who are socially or professionally associated with the recovering abuser.
The evidence substantiates that after being diagnosed as chemically dependent, respondent became committed to the Shepherd Hill method of treatment. As of the date of the disciplinary hearing, he had entered the fourth and final phase of the program. He was again living with his family and was enjoying their support. He had also repaid the entire amount of the settlement check that he had endorsed. Respondent had closed his private practice responsibly with the assistance of another attorney, who, according to respondent's instruction, had returned the files and any unearned retainers to respondent's former clients. Respondent is now employed in a more structured position and his performance, which has steadily improved, is under close supervision. Dr. Redman testified that respondent's prognosis for recovery, based on respondent's efforts to date, was excellent.
In addition to the foregoing, respondent supplied the testimony of two character witnesses and many reference letters for the board's consideration. This evidence corroborated the medical testimony regarding the previous effects of respondent's addiction on his professional and private life. It also established that respondent was well on his way to as complete a recovery as his disease would allow. Particularly compelling on this issue was the testimony of respondent's wife. She attested to her own dedication to respondent's sobriety and about her responsibility to immediately report any of the relapse warning signs to the Shepherd Hill staff.
Respondent also testified before the board. He expressed remorse for his misconduct and related some other examples of his addiction's catastrophic effects. He said that during the period that he misused the money belonging to his client, he also lost his home and nearly his marriage. Finally, respondent attested that he had not used alcohol or drugs since his treatment began.
In making its recommendation, the board consulted pertinent disciplinary law and concluded that it supported the imposition of a one-year suspension in response to respondent's misconduct. Relying on Stark Cty. Bar Assn. v. Weber (1963), 175 Ohio St. 13, 23 O.O. 2d 292, 190 N.E.2d 918, and Disciplinary Counsel v. Pridemore (1986), 28 Ohio St.3d 106, 28 OBR 206, 502 N.E.2d 635, however, the board recommended that nine months of respondent's suspension be stayed and that he be placed on probation for two years following the first three months of that sanction.
Michael T. Gunner, for relator.
Charles W. Kettlewell, for respondent.
The record clearly supports the board's finding that respondent violated DR 9-102. Therefore, we adopt this finding as our own. Our review of the evidence, however, requires us to impose a more severe sanction than that recommended.
In the past, this court has plainly warned that it will not tolerate an attorney's misuse of his client's funds and it has responded to such ethical breaches by suspending the attorney from the practice of law for at least one year. See, e.g., Toledo Bar Assn. v. Gruhler (1985), 16 Ohio St.3d 5, 16 OBR 257, 475 N.E.2d 481; Toledo Bar Assn. v. Potts (1984), 9 Ohio St.3d 89, 9 OBR 318, 459 N.E.2d 499; and Cincinnati Bar Assn. v. Walker (1986), 28 Ohio St.3d 102, 28 OBR 195, 502 N.E.2d 646.
Here, however, respondent did more than misuse his client's funds. While respondent was never prosecuted, his misconduct also involved forgery, a felony under R.C. 2913.31. Misconduct of this magnitude has been met with an indefinite suspension. See, e.g., Disciplinary Counsel v. Bica (1988), 35 Ohio St.3d 264, 520 N.E.2d 221.
Neither Stark County Bar Assn. v. Weber, supra, nor Disciplinary Counsel v. Pridemore, supra, persuades us to act more leniently. Those cases did not involve illegalities like the ones committed by respondent. On the other hand, respondent's chemical dependency was a significant factor in causing this disciplinary violation and his efforts to overcome his disease have a mitigating effect. Disciplinary Counsel v. Dodge (1987), 32 Ohio St.3d 118, 512 N.E.2d 650.
The gravity of respondent's offenses requires a commensurate sanction. Accordingly, respondent is hereby suspended indefinitely from the practice of law in Ohio. Because we are impressed with respondent's apparent success in controlling his alcoholism and drug addiction, however, respondent will be permitted to petition for reinstatement in one year. We assume that the monitoring and supervision under which respondent is currently functioning will continue throughout the sanction period. Costs taxed to respondent.
Judgment accordingly.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS, JONES and H. BROWN, JJ., concur.
HOLMES, J., concurs in judgment only.
FRED E. JONES, J., of the Twelfth Appellate District, sitting for WRIGHT, J.