Disciplinary Counsel v. Golden

[This decision has been published in Ohio Official Reports at 97 Ohio St.3d 230.]

OFFICE OF DISCIPLINARY COUNSEL v. GOLDEN.

[Cite as Disciplinary Counsel v. Golden, 2002-Ohio-5934.]

Attorneys at law—Misconduct resulting directly from clinical depression—

Indefinite suspension—Engaging in a pattern of neglect with respect to

client matters—Failing to cooperate in ensuing disciplinary investigation.

(No. 2002-0724—Submitted August 27, 2002—Decided November 13, 2002.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 00-47.

__________________

Per Curiam.

{¶1} We must decide in this case how to appropriately sanction respondent,

Shelby Diane Golden of Lima, Ohio, Attorney Registration No. 0039787, who

violated a series of Disciplinary Rules while representing clients in eight different

cases, failed to cooperate with relator, Disciplinary Counsel, in the investigation of

her misconduct, and did not update her business address with the Office of Attorney

Registration as required. The Board of Commissioners on Grievances and

Discipline, after finding that respondent’s debilitating clinical depression

contributed significantly to her misconduct, recommended a sanction less severe

than an indefinite suspension from the practice of law in Ohio. We agree that

respondent’s depression is a mitigating influence sufficient to warrant rejection of

the disbarment recommended by relator. However, misconduct of this magnitude

must be met with an indefinite suspension for the public’s protection, and therefore

we find this sanction appropriate.

{¶2} On February 6, 2001, relator filed the instant amended complaint and

charged respondent with ten counts of misconduct. A panel of the board heard the

cause and, based on the parties’ stipulations and respondent’s testimony, made the

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following findings of fact and conclusions of law with respect to Counts I through

IX.1

Misconduct

{¶3} As to Count I, the evidence showed that in 1999, respondent accepted

a $250 retainer from a client, failed to perform any service for the client, and then

ignored the client’s request that the money be returned. For this, the panel found

respondent in violation of DR 2-110(A)(3) (failing to promptly return unearned fees

upon withdrawing from employment) and 6-101(A)(3) (neglecting an entrusted

legal matter). Because respondent did not respond to relator’s letter of inquiry

concerning this client’s grievance, the panel also found a violation of Gov.Bar R.

V(4)(G) (failing to cooperate in a disciplinary investigation).

{¶4} With respect to Count II, the evidence showed that respondent agreed

in February 1997 to represent a couple in a collection action and accepted a $1,500

fee. During the next two and one-half years, respondent failed to file a complaint

in the action, yet she represented to her clients that the action was pending in court.

And in March 1999, respondent misrepresented to her clients that the matter would

be set for a scheduling conference before a Logan County common pleas court

judge. That judge later learned of respondent’s actions and filed a grievance with

relator. The panel found that respondent’s conduct violated DR 1-102(A)(4)

(engaging in fraud, deceit, dishonesty, or misrepresentation), 2-110(A)(3), 6-

101(A)(3), and 7-101(A)(2) (failing to carry out a contract for professional

services). Because respondent again failed to respond to relator’s letter of inquiry

concerning this grievance, the panel found another violation of Gov.Bar R.

V(4)(G).

{¶5} As to Count III, the evidence showed that respondent represented a

client during her 1997 divorce and that those proceedings required respondent to

1. A tenth count of misconduct found by the panel was later discounted by the board.

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file a Qualified Domestic Relations Order (“QDRO”) to transfer funds from an IRA

to the client. Respondent never filed the QDRO but misled the client into believing

that she had. The panel found this conduct to violate DR 1-102(A)(4), (5)

(engaging in conduct prejudicial to the administration of justice), and (6) (engaging

in conduct that adversely reflects on her fitness to practice law); 6-107(A)(3) [sic,

6-101(A)(3)]; and 7-101(A)(2).

{¶6} With respect to Count IV, the evidence showed that respondent

represented another client in the dissolution of her marriage and that those

proceedings also required respondent to file a QDRO. Respondent again did not

file the QDRO and misrepresented to her client that she had. The panel determined

that this conduct also violated DR 6-101(A)(3) and 1-102(A)(4), (5), and (6).

Respondent’s failure to reply to relator’s letter of inquiry concerning this client’s

grievance prompted the panel to find yet another violation of Gov.Bar R. V(4)(G).

{¶7} As to Count V, the panel found a violation of Gov.Bar R. VI(1)(D)

because respondent went to work as an assistant city prosecutor in November 1999

and did not update her office address with the Office of Attorney Registration until

at least October 2001. As a result, the clients from respondent’s private practice,

some of whom needed their files, the return of unearned fees, and status reports,

had trouble contacting her about their cases.

{¶8} With respect to Count VI, the evidence showed that while representing

another client subsequent to his 1995 divorce, respondent advised the client that he

owed only $60 in weekly support payments when, in fact, he owed $100 per week

pursuant to a judgment entry. Respondent misrepresented the amount of support

ultimately ordered because she thought she had made a mistake in agreeing to a

higher amount in an earlier court order. As a result, the client accumulated

arrearages during 1996 through 1999 in his spousal support account with the Child

Support Enforcement Agency. The client received notices from the agency

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concerning the arrearages, which he took to respondent, and she promised to take

care of the problem.

{¶9} In 1998, respondent’s client wanted to buy a new house. To assist him,

respondent altered a copy of the judgment entry requiring the client’s $100 weekly

support payment to reflect that he owed only $60 per week. Respondent gave the

altered copy to the client for his use in obtaining a loan, and his loan was approved.

{¶10} Also in 1998, respondent asked this client to start sending his support

payments to her so that she could make sure the Child Enforcement Support Agency

received them. For the next several months, respondent deposited these checks into

her client trust account and then made support payments from the same account,

partially making up the difference between what her client had paid her for this

purpose and the amount actually owed. But eventually, the accumulated arrearages

in her client’s account caused the agency to garnish the client’s monthly Social

Security checks. The client bounced some checks as a result.

{¶11} Then, from February 1999 through March 2000, respondent paid

directly into the client’s checking account amounts representing the difference

between the client’s support payments and the amount actually owed. Respondent

misrepresented to the client that the Child Support Enforcement Agency was

making these payments. In July 1999, the agency notified respondent’s client that

his account was over $3,700 in arrears. Respondent also paid this overdue amount.

{¶12} The panel concluded from respondent’s misrepresentations and

commingling in connection with Count VI that she had violated DR 1-102(A)(4)

and (5), 5-103(B) (advancing financial assistance to a client), 7-101(A)(3) (causing

client damage or prejudice), 7-102(A)(3) (concealing that which an attorney is

required by law to reveal), and 9-102 (failing to maintain client funds in an

identifiable bank account).

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{¶13} As to Count VII, the panel found a violation of DR 6-101(A)(3)

because respondent was hired in 1998 to administer a client’s estate but did not

timely conclude the process.

{¶14} With respect to Count VIII, the evidence showed that while

representing a trustee in November 1999, respondent failed to timely file an

accounting of the trust assets and thereafter did not reply to the court’s or her

client’s inquiries about the overdue accounting. In February 2000, the trustee

terminated respondent’s employment, but respondent did not promptly turn the

client’s file over to the trustee’s new attorney. The panel concluded that respondent

had thereby violated DR 2-110(A)(2) (withdrawal from employment without

reasonable steps to return client’s papers and other property), and 6-101(A)(3).

{¶15} As to Count IX, the evidence showed that in representing another

client in her 1996 divorce, respondent again was required to file a QDRO so that

the client could receive a portion of her former husband’s 401(k) pension.

Respondent did not file the QDRO during 1996, 1997, or 1998.

{¶16} When her client was finally able to reach respondent and complain

that she was not receiving any money from the QDRO, respondent falsely told the

client that the QDRO had been filed. Respondent also told the client that she had

had to sue the administrator of the 401(k) plan and that various proceedings were

underway. To cover these untruths, respondent made 22 monthly payments to the

client in three years, all the while explaining that the proceeds were from the

pending litigation. In September 2000, the client discovered that respondent had

not filed any suit against the administrator and that the payments she had been

receiving were not from the administrator or any court. Respondent, who by that

time had paid her client over $9,000, stopped making these payments.

{¶17} The panel found that respondent’s conduct in connection with Count

IX violated DR 1-102(A)(4) and (5); 5-103(B); 7-101(A)(1), (2), and (3); and 7-

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102(A)(3). Because respondent had also failed to respond to notice of this client’s

grievance, the panel further found a violation of Gov.Bar R. V(4)(G).

Recommendation

{¶18} In recommending a sanction for this misconduct, the panel

considered the factors commonly offered to mitigate the impact of an attorney’s

misconduct, including that respondent had conceded the egregious effect of her

infractions and had already made restitution to her clients. Respondent also

established that she had no prior history of professional discipline. In addition, the

panel noted that while respondent had frequently failed to respond to relator’s initial

investigative inquiries, she retained an attorney and cooperated fully once relator

had filed its complaint.

{¶19} But by far the most compelling evidence for the panel was that of

respondent’s psychological and emotional decline during the events at bar. In fact,

after hearing respondent’s explanation of her overwhelming personal and

professional misfortunes, the panel sua sponte suggested a psychiatric evaluation,

and respondent and relator agreed to this assessment. The panel reviewed the

comprehensive psychiatric report that respondent submitted and specifically found

that her clinical depression was the direct cause of the acts leading to this complaint.

Panel members also noted that while respondent had acted dishonestly, these acts

were not the result of conventional self-interest, but rather manifested respondent’s

ill-conceived efforts to help her clients and fix problems with which she could no

longer cope.

{¶20} Based on these considerations, the panel decided against disbarment

and recommended a two-year suspension from the practice of law commencing

January 1, 2001, the date on which respondent voluntarily withdrew herself from

practice. The panel further recommended that the last six months of this period be

suspended, that respondent be placed on probation for these six months, and that a

monitoring attorney be appointed pursuant to Gov.Bar R. V(9)(B) for respondent

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during her probation. The board adopted the panel’s findings of fact, conclusions

of law, and recommended sanction with respect to Counts I through IX.

Sanction Upon Review

{¶21} Upon review, we agree that respondent committed the disciplinary

violations as found by the board in these nine counts of misconduct. Moreover,

based on the stipulations, respondent’s testimony, and relator’s objections to the

board’s report, we further find that respondent violated DR 7-101(A)(2) in

connection with Counts I, IV, and VII; DR 1-102(A)(4) in connection with Count

VII; and Gov.Bar R. V(4)(G) in connection with Count III.

{¶22} We also accept as mitigating the factors identified by the board. See

Cleveland Bar Assn. v. Dixon, 95 Ohio St.3d 490, 2002-Ohio-2490, 769 N.E.2d

816, ¶19, and Cincinnati Bar Assn. v. Stidham (2000), 87 Ohio St.3d 455, 463, 721

N.E.2d 977 (mitigation evidence may consist of an attorney’s mental or emotional

illness as well as the factors enumerated in Section 10 of the Rules and Regulations

Governing Procedure on Complaints and Hearings Before the Board of

Commissioners on Grievances and Discipline). But these factors notwithstanding,

our decision must still account for respondent’s having breached her duty to her

clients, the public, and the profession so many times and for so many years.

Accordingly, we have decided to impose an indefinite suspension from the practice

of law.

{¶23} When attorneys engage in a pattern of neglect and fail to cooperate

in an ensuing disciplinary investigation, the misconduct ordinarily warrants an

indefinite suspension. Akron Bar Assn. v. Snyder (1999), 87 Ohio St.3d 211, 212,

718 N.E.2d 1271; Disciplinary Counsel v. Henderson (1999), 87 Ohio St.3d 219,

221, 718 N.E.2d 1277; Warren Cty. Bar Assn. v. Lieser (1997), 79 Ohio St.3d 488,

490, 683 N.E.2d 1148. Moreover, when these infractions are coupled with

dishonesty in any form, an indefinite suspension is all but guaranteed. On the other

hand, when misconduct permeates a practice in the way it has in this case,

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disbarment is often the only sanction available for preserving the public confidence

in the judicial system. Cleveland Bar Assn. v. Glatki (2000), 88 Ohio St.3d 381,

726 N.E.2d 993.

{¶24} Attorneys are obligated to secure medical or other assistance they

need before any client suffers from the attorney’s professional incompetence,

whatever the source. But having said this, we also realize that the practice of law

can be overwhelming. Thus, when an attorney’s misconduct results directly from

clinical depression as it does here, we have tempered our disposition to see whether

the attorney is able, with the help of appropriate medical care, to merit the public’s

confidence again. Stidham, 87 Ohio St.3d 455, 464, 721 N.E.2d 977.

{¶25} We consider respondent a good risk for this level of lenience.

Accordingly, respondent is hereby suspended from the practice of law in Ohio

indefinitely. During such suspension, respondent shall seek and continue in

professional psychiatric care for the purpose of establishing her restored

professional competence. Respondent’s reinstatement shall be conditioned on

medical proof of competence to return to the practice of law in addition to the

requirements established in Gov.Bar R. V(10). Costs are taxed to respondent.

Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Lori J. Brown, First

Assistant Disciplinary Counsel, for relator.

Jeffrey V. Hawkins, for respondent.

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