Summary
In Ohio State Bar Assn. v. Roest (1978), 54 Ohio St.2d 95 [8 O.O.3d 90], this court held that the mental illness provisions of Gov. Bar R. V(10) "* * * obtain only in controversies wherein a respondent proves he is mentally ill at the time of his disciplinary action."
Summary of this case from Cincinnati Bar Assn. v. FettnerOpinion
D.D. No. 77-10
Decided April 19, 1978.
Attorneys at law — Indefinite suspension — Acts warranting — Gov. R. V(10)(b), construed.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
George S. Roest, respondent herein, admitted in 1958 to the practice of law in Ohio, was charged by the Ohio State Bar Association, relator herein, with eight counts of misconduct and violations of the Disciplinary Rules of the Code of Professional Responsibility. At the subsequent hearing, testimony was taken from numerous witnesses and respondent was represented by counsel. The Board of Commissioners on Grievances and Discipline (hereinafter "board"), upon assessing the pleadings, the stipulations of the parties and the evidence, determined that respondent's conduct violated the Code of Professional Responsibility on the following seven of the eight counts:
"Count I
"On May 14, 1975, Respondent was retained by General American Credits, Inc., Columbus, Ohio, to represent Gulf Oil Company in the matter of a collection of the sum of $2,677.98 owed by David Lee Bails and Raymond L. Bails to Gulf Oil Company.
"On the 23rd day of May, 1975, Respondent, acting as attorney for the Gulf Oil Company, received payment in the sum of $2,500.00 from Raymond Bails as payment in full of the collection account in favor of Gulf Oil Company against David Lee Bails and Raymond L. Bails, and issued a receipt therefor.
"On May 29, 1975, Respondent advised General American Credits, Inc. of Columbus, Ohio, a collection agency, that he had not collected the account, and requested and was paid the appropriate court cost deposit and suit fee.
"On September 9, 1975, Respondent advised General American Credits, Inc., that he had commenced suit against David Lee Bails and Raymond L. Bails on behalf of Gulf Oil Company. No such suit was commenced by respondent.
"Respondent never remitted any of said $2,500.00, nor did he refund the suit fee of $7.50 and the court cost deposit of $20.00 to General American Credits, Inc., or the Gulf Oil Company.
"* * *
"Count II
"During the month of June, 1973, Respondent was retained by Dun Bradstreet, Inc. to represent Fruehauf Corp. in the matter of a collection account owed by Edward Rowedda to Fruehauf Corp.
"On May 29, 1975, Respondent, acting as attorney for Fruehauf Corp., settled the account against and collected from Edward Rowedda the sum of $800.00 and gave Edward Rowedda a receipt therefor indicating the account as being paid in full.
"On June 19, 1975, Respondent advised Dun Bradstreet, Inc., a collection agency for Fruehauf Corp., that Edward Rowedda was offering to settle the collection account for the sum of $800.00, but did not advise them that he had already collected said sum.
"Respondent has failed to remit the $800.00 to either Dun Bradstreet, Inc., or the Fruehauf Corp.
"* * *
"Count III
"On or about August 26, 1975, Respondent was retained by K.E.R. Associates, Inc., a collection agency, to represent Redford Community Hospital to collect an account owed by Dorothy Van Arsdall and William Van Arsdall to Redford Community Hospital.
"On the 3rd day of December, 1975, Respondent received the sum of $800.00 and on the 12th day of December, 1975, Respondent received an additional sum of $200.00, both sums being paid by attorney Thomas C. Fetter on behalf of Dorothy and William Van Arsdall to respondent as attorney for Redford Community Hospital in full settlement of the claim against Dorothy and William Van Arsdall, and never advised his client he had received the funds.
"Respondent failed to remit said funds to his client, Redford Community Hospital, or to account for the same.
"* * *
"Count IV
"Prior to August, 1975, Respondent was retained by Stanley Tulchin Associates, a collection agency, to represent Curtis Circulation Company to collect an account in the sum of $4,869.29 owed by James R. Smith, dba marion News Agency, to Curtis Circulation Company.
"On November 25, 1975, Respondent collected the sum of $1,200.00; on February 25, 1976, the sum of $400.00; and on March 16, 1976, the sum of $2,000.00, from James R. Smith, dba Marion News Agency, as attorney for Curtis Circulation Company.
"Respondent failed to remit any portion of said funds to his client, Curtis Circulation Company, or to Stanley Tulchin Associates, acting as a collection agency for Curtis Circulation Company, and did not advise them he had collected any funds.
"* * *
"Count V
"In the month of February, 1974, Respondent was retained as attorney to represent Emerson Television Sales Corporation to collect an account in the amount of $1,500.00 owed by Jack's Television Sales Corp.
"Respondent collected the sum of $300.00 in full settlement of said account as authorized by his client. Respondent deducted a fee of $100.00 and on February 23, 1976, Respondent drew a check in the sum of $200.00 on his Trust Account at the National City Bank of Marion and payable to the American Bureau of Collections, Inc., representing the net proceeds of the collection.
"The check of $200.00, when presented for payment to the National City Bank of Marion, was dishonored and returned for the reason that there was not sufficient funds in the Trust Account to pay said check. American Bureau of Collections, Inc. attempted to contact Respondent regarding the check but could not do so.
"Respondent has failed to make restitution or repayment of the $200.00 sum.
"* * *
"Count VI
"On the 31st day of March, 1976, Respondent sent to Professional Adjustment Company, Marion, Ohio, a collection agency, a check, drawn on Respondent's Trust Account at the National City Bank of Marion, in the amount of $2,437.19, representing funds collected by Respondent after deduction of a professional fee for collecting the same. Said check was returned by the National City Bank of Marion for the reason that there was not sufficient funds in Respondent's Trust Account to pay the check. Professional Adjustment Agency attempted to contact Respondent but could not do so and the check has not been paid.
"* * *
"Count VIII
"During the month of August, 1975, Respondent was requested by Joswe E. Santiago to represent him as attorney in the presentation of an appeal to the Court of Appeals from a judgment of Conviction in the Marion County Court of Common Pleas.
"Respondent had served as trial counsel for Mr. Santiago. Respondent assured Mr. Santiago that he would undertake the filing of a Notice of Appeal and further proceedings in such appeal, and would request the court to appoint him to do so.
"Respondent neglected and failed to file any appeal or proceedings, or to be appointed counsel, and Mr. Santiago's appeal time expired. Thereafter, Mr. Santiago undertook and did file a delayed notice of appeal on his own behalf which was dismissed by the Court.
"* * *."
Relative to the first six of these seven counts, concerning which there was no genuine dispute, the board found that respondent had violated DR 9-102(A) and (B), and DR 1-102(A)(3), (4) and (6) of the Code of Professional Responsibility. With respect to the final count, respondent was found to have violated DR 6-101(A)(3) and DR 7-101(A)(1), (2) and (3) of the Code of Professional Responsibility. The board recommended that respondent be indefinitely suspended from the practice of law.
The matter is now before this court for consideration of the report of the board and the respondent's objection to the recommendation.
Mr. John R. Welch, Mr. Albert L. Bell, Mr. John R. Werren and Mr. William D. Campbell, for relator.
Messrs. Abraham, Purkey Levy, Mr. William J. Abraham and Mr. Barry D. Levy, for respondent.
Gov. R. V(10)(b) provides:
"After an answer has been filed or the time for answer has elapsed, if the complaint or answer alleges mental illness supported by a certified copy of a journal entry of a court of competent jurisdiction adjudicating mental illness, or if the Board finds existing mental illness after an examination provided in (d) hereof, the Board shall forthwith certify the complaint to this Court and the Court may suspend the Respondent from the practice of law."
Gov. R. V(10)(d) provides:
"Any suspension under this section may be terminated on Respondent's application to the Board and a showing of removal of the cause for suspension, which is certified by the Board to, and affirmed by, the Court."
Respondent submits that he proved at the hearing in the instant cause that he was, at the time that his offenses were committed, suffering from a mental illness, towit, alcoholism. Respondent avers that his subsequent recovery from alcoholism constitutes a cure thereof within Gov. R. V(10)(b).
Respondent misapprehends Gov. R. V(10)(b). The provisions of that rule obtain only in controversies wherein a respondent proves he is mentally ill at the time of his disciplinary action. Gov. R. V(10)(b) is not relevant at that juncture when the respondent has, as is alleged in the instant cause, recovered. Furthermore, although alcoholism may be a factor to consider in mitigation of discipline, it is ordinarily not a mental illness comprehended by Gov. R. V(10)(b).
It is the considered judgment of this court that respondent be indefinitely suspended from the practice of law for his violations of the Code of Professional Responsibility.
Judgment accordingly.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.