The opinion
[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 490.]
CLEVELAND BAR ASSOCIATION v. DIXON.
[Cite as Cleveland Bar Assn. v. Dixon, 2002-Ohio-2490.]
Attorneys at law—Misconduct—Permanent disbarment—Fifteen distinct
violations of the Disciplinary Rules during the administration of an
estate—Failing to cooperate in a disciplinary investigation.
(No. 2001-1631—Submitted January 8, 2002—Decided June 12, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-85.
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COOK, J.
{¶1} This cause is before the court upon the filing of a certified report by
the Board of Commissioners on Grievances and Discipline (“board”)
recommending that we sanction the respondent, Debra J. Dixon of Cleveland, Ohio,
Attorney Registration No. 0060090, for acts violating numerous Disciplinary Rules
and for initially failing to cooperate in the disciplinary investigation. The board
recommends that we indefinitely suspend Dixon from the practice of law in Ohio.
For the reasons that follow, we decline to follow the board’s recommendation and
instead disbar Dixon.
I
{¶2} The parties entered into detailed factual stipulations that formed the
basis for the panel report, which in turn formed the basis of the board’s certified
report to this court. These stipulations indicate that in September 1996, Dixon
began to represent Bertha Heim, both individually and as the administrator of the
estate of Heim’s deceased husband, Otto. Dixon also represented Heim’s son for
limited purposes. During the course of her relationship with Heim, Dixon obtained
power of attorney, which Dixon used to sign probate documents and to transfer
both probate and non-probate funds or assets.
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Neglect
{¶3} Dixon admits that she lacked the experience to handle the probate
matter. Among other errors, she failed to identify accurately funds valued at
$33,950.65; failed to file accurate accounts in a timely fashion, resulting in a
citation against Heim; failed to deliver assets to beneficiaries in a timely fashion;
and failed to provide full information in a timely fashion to both the court and her
client. Eventually, a probate court magistrate judge contacted the Cleveland Bar
Association over concerns that Heim had expressed to him about Dixon’s usurping
estate assets valued between $200,000 and $500,000 and about a potential conflict
of interest arising from Dixon’s representing the estate, of which both Heim and
her son were beneficiaries, while also representing Heim personally.
{¶4} The parties stipulated that Dixon’s conduct violated DR 6-101(A)(1)
(a lawyer shall not handle a legal matter that she knows or should have known she
is not competent to handle without associating herself with a lawyer who is
competent to handle it), 6-101(A)(2) (a lawyer shall not handle a legal matter
inadequately), 6-101(A)(3) (a lawyer shall not neglect an entrusted legal matter),
1-102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration
of justice), 7-101(A)(2) (a lawyer shall not fail to carry out a contract of legal
employment with a client for professional services), and 7-102(A)(3) (a lawyer
shall not knowingly fail to disclose that which the law requires to be revealed).
Failure to Account for Fiduciary Funds
{¶5} In the course of the attorney-client relationship, Dixon had assumed
nearly total control over all assets belonging to the estate and to Heim. The parties
stipulated that Dixon’s mishandling of the assets violated DR 9-102(B)(2) (failure
to label all assets properly), 9-102(B)(3) (failure to render appropriate accounts to
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the client), and 9-102(B)(4) (failure to pay or deliver to the client promptly property
that was in lawyer’s possession).1
Improper Transfers of Fiduciary Funds
{¶6} In the second month of her representation of Heim, Dixon opened a
joint and survivorship checking account in both their names. Although Dixon used
this account to receive various fiduciary monies and to pay fiduciary bills, Dixon
also withdrew $252,406.80 from that account for her own use. Exhibits
accompanying the stipulations show that Dixon had written several checks payable
to “Cash.” Another was payable to a university scholarship fund, while yet others
were payable to relatives of Dixon. Although Dixon periodically reimbursed the
account, she twice deposited her own funds into the account and identified them as
“loans,” even though Heim did not require such loans.
{¶7} The parties stipulated that Dixon’s conduct violated DR 9-102(A)
(commingling funds), 1-102(A)(4) (engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation), 1-102(A)(6) (engaging in conduct adversely
reflecting on the lawyer’s fitness to practice law), and 7-101(A)(3) (intentionally
prejudicing or damaging her client in the course of their professional relationship).
{¶8} During her second year of representing the estate and Heim, Dixon
transferred $110,000 from Heim’s assets to Dixon’s brother and another individual.
The two men used the money to purchase real property. Dixon prepared a
promissory note and open-ended mortgage for the transaction that identified the
lender as “Bertha Heim c/o her Attorney, Debra J. Dixon.” The stipulations state
that Dixon “admits she has no records evidencing disclosure of this loan to Bertha
1. The board report describes DR 9-102(B)(2) as prohibiting Dixon’s failure to render an appropriate
account to Heim in a timely fashion, while describing DR 9-102(B)(3) as prohibiting Dixon’s failure
to label all assets properly. The board has switched the Disciplinary Rules. Our independent
evaluation of the case corrects this clerical error.
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Heim.” The parties stipulated that Dixon’s conduct violated DR 5-105
(representing conflicting interests).
{¶9} Upon reaching a settlement with the estate’s conservator, who had
filed a concealment of assets action, Dixon repaid that portion of the principal that
she had not already redeposited, paid interest on the principal, and paid the
conservator’s attorney’s fees.
Charging an Excessive Fee
{¶10} By two payments in February and June 1997, Dixon paid herself a
total of $15,000 from non-probate funds. Dixon recorded the payments as “funds
management.” Later, during the course of the conservator’s legal action against
her, Dixon submitted a fee invoice in the amount of $18,205 plus additional
expenses. As part of the settlement agreement, Dixon waived payment of her fees.
The parties stipulated that Dixon attempted to charge an excessive fee in violation
of DR 2-106(A).
Failure to Cooperate with Disciplinary Investigation
{¶11} The Cleveland Bar Association first notified Dixon in February 1999
of a grievance against her. Despite repeated requests by the bar association, Dixon
failed to provide full information for months. Finally, following the estate
conservator’s filing of the civil action against Dixon, Dixon retained counsel who
facilitated Dixon’s cooperation with the disciplinary investigation. The parties
stipulated that Dixon’s conduct constitutes misconduct under Gov.Bar R.
V(6)(A)(1) in that she failed to cooperate as required by Gov.Bar R. V(4)(G).
{¶12} The matter proceeded to a hearing before a board panel. At the
hearing, the bar association confirmed that it was withdrawing other alleged
violations that were not resolved by stipulation, as well as an amended complaint
that it had filed alleging additional violations. After hearing mitigation testimony,
the panel adopted the parties’ stipulations as its findings of fact and conclusions of
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law and recommended an indefinite suspension. The board then adopted the
findings, conclusions, and recommendation of the panel.
{¶13} Dixon now objects to a portion of the board’s findings and to a
condition of the recommended sanction.
II
{¶14} With one exception, Dixon does not object to the factual findings and
conclusions adopted by the board. Nor does she suggest that the imposition of an
indefinite suspension is unwarranted in light of her admitted violations of numerous
Disciplinary Rules. Rather, Dixon urges this court to find that mental illness
contributed to her misconduct and to permit her to apply for reinstatement from
indefinite suspension upon a determination by mental health professionals that she
is fit to resume the practice of law rather than upon the expiration of Gov.Bar R.
V(10)(B)(1)’s two-year waiting period. We need not address Dixon’s argument
regarding early reinstatement from an indefinite suspension, however, because the
facts of this case warrant disbarment.2
{¶15} Because misappropriation of client funds is among Dixon’s acts of
admitted misconduct, we must begin our consideration with the presumptive
sanction of disbarment. See Disciplinary Counsel v. Wise (1999), 85 Ohio St.3d
2. {¶a} As noted, the parties stipulated to the recommended sanction of an indefinite
suspension, which both the panel and the board found appropriate. At first blush, our departure
from the board’s recommended sanction would therefore appear to necessitate a remand in this case
pursuant to Gov.Bar R. V(8)(D):
{¶b} “After a hearing on objections, * * * the Supreme Court shall enter an order as it
finds proper. If the Court rejects the sanction contained in a certified report submitted pursuant to
Section 11 of the Rules and Regulations Governing Procedure on Complaints and Hearings Before
the Board of Commissioners on Grievances and Discipline, the Court shall remand the matter to
the board for a hearing.” (Emphasis added.)
{¶c} No remand is required. This court has previously explained that “stipulations to
[an indefinite suspension or disbarment] are not within the scope of Section 11 [of the Rules and
Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners
on Grievances and Discipline].” Cincinnati Bar Assn. v. Selnick (2001), 94 Ohio St.3d 1, 9, 759
N.E.2d 764 (“Gov.Bar R. V[11][A][3][c] * * * expressly exempts indefinite suspensions and
disbarments from the ambit of [Section 11].” Emphasis sic.). Because the board’s certified report
was not submitted pursuant to Section 11, Gov.Bar R. V(8)(D) is inapplicable.
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169, 171, 707 N.E.2d 852. See, also, Cleveland Bar Assn. v. Glatki (2000), 88 Ohio
St.3d 381, 384, 726 N.E.2d 993; Disciplinary Counsel v. Connaughton (1996), 75
Ohio St.3d 644, 645, 665 N.E.2d 675. “However, on some occasions because of
mitigating circumstances, we have given weight to a board recommendation of a
lesser sanction.” Wise, 85 Ohio St.3d at 171, 707 N.E.2d 852, citing Disciplinary
Counsel v. Kurtz (1998), 82 Ohio St.3d 55, 693 N.E.2d 1080. In considering
whether such sufficient mitigating circumstances exist, we are guided by Section
10 of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline. Disciplinary
Counsel v. Medley (2001), 93 Ohio St.3d 474, 477, 756 N.E.2d 104.
{¶16} Dixon posits that an indefinite suspension would be an appropriate
lesser sanction because numerous Section 10 mitigating factors exist in this case:
the absence of a prior disciplinary record; evidence of her otherwise good character
and good works; the fact that the misconduct was limited to a single representation;
her mental illness, which she labels as a “significant contributing factor” to her
dishonesty and which she is making an effort to overcome; and the fact that she
made “full restitution prior to any court ordered compulsion to do so.” The panel
and board found the presence of several of these mitigating factors, including
restitution, no prior discipline, and positive character witnesses.
{¶17} We agree that a lack of prior discipline and the fact that Dixon’s
misconduct was limited to single representation constitute some mitigation. See
Section 10(B) of the Rules and Regulations Governing Procedure on Complaints
and Hearings Before the Board of Commissioners on Grievances and Discipline.
We also accord some weight to Dixon’s character references. But for the following
reasons, we find Dixon’s claim to each remaining mitigating factor less compelling.
Mental Illness
{¶18} Although Section 10(B)(2) of the Rules and Regulations Governing
Procedure on Complaints and Hearings Before the Board of Commissioners on
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Grievances and Discipline does not explicitly reference mental illness as a
mitigating factor, Section 10(B) of that rule requires consideration of “all relevant
factors” in determining an appropriate sanction for misconduct. We have
historically considered an attorney’s mental state in determining an appropriate
sanction for misconduct. Glatki, 88 Ohio St.3d at 384, 726 N.E.2d 993.
{¶19} Here, both the panel and the board explicitly rejected the existence
of Dixon’s psychological issues as a mitigating factor. The board specifically found
that Dixon’s psychological problems were “peripherally related” to her misconduct
and concluded that Dixon’s “mental state did not cause and does not justify her
dishonest conduct.” “While this court is not bound by the findings of fact of the
board and panel, we give them some deference in light of the reality that the panel
observed the witnesses firsthand.” (Citation omitted.) Cleveland Bar Assn. v.
Cleary (2001), 93 Ohio St.3d 191, 198, 754 N.E.2d 235. We have independently
reviewed the testimony and written report of the clinical and forensic psychologist
that Dixon presented on her behalf. Both contain evidence of unfortunate
circumstances in Dixon’s history that have resulted in mainly personality and
interpersonal relationship difficulties. Neither, however, contains a sufficiently
compelling causal link between Dixon’s stated psychological issues and her
misappropriation of over $250,000. Accordingly, we decline to credit Dixon’s
claim to mitigation in this regard.
Restitution
{¶20} We discount the mitigating value of Dixon’s having made “full
restitution prior to any court ordered compulsion to do so.” Though the board found
Dixon’s restitution to constitute a mitigating factor, the board also found the
circumstances behind the restitution to constitute an aggravating factor. We agree.
While Dixon had indeed made restitution before a court ordered her to do so, she
completed it well over a year after learning of the grievance—and only after the
conservator of the estate of Otto Heim had initiated legal action to reclaim the
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misappropriated funds, after the conservator had issued a subpoena duces tecum
requiring Dixon to produce records of the accounts, securities, and other assets held
by the estate and Bertha Heim, and after Dixon had retained counsel and negotiated
a settlement in which she paid the estate $151,960.50 in exchange for a release of
all claims against her.
{¶21} Despite the delay in making restitution, Dixon testified before the
panel that she had promptly paid the $151,960.50 to the estate upon the
conservator’s determination of the total amount of principal, interest, and
conservator fees due, implying that she acted timely and in good faith. Yet, given
her firsthand knowledge of how much money she had misappropriated, Dixon
could have, and should have, repaid the monies owed to the estate (except the
conservator’s fee) even prior to completion of the conservator’s calculation.
Dixon’s delayed payment therefore constitutes less than a “timely good faith effort
to make restitution or to rectify consequences of misconduct.” Section 10(B)(2)(c)
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline. Although
Dixon’s having made restitution provides some mitigation, the circumstances
surrounding the repayment determine its weight.
Remorse
{¶22} In addition to those mitigating factors set forth above, the board also
cited as mitigating Dixon’s expression of remorse for her conduct. Dixon, however,
does not assert remorse in her list of mitigating factors to this court. We note
nonetheless that Dixon testified before the board that “words cannot describe” her
degree of remorse and that she feels “ashamed for having marred * * * one of the
most honorable professions around.”
{¶23} We also note that Dixon testified that she had “never meant, under
any circumstances, to harm Mrs. Heim. On the contrary, [Dixon’s] goals and *
* * motivations for getting involved were to help her.” Further, Dixon testified that
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she had never intended to deprive Bertha Heim of her money or property, and that
she recognizes that the problem in making the loan to her brother was that “[a]s a
practical matter and for ethics purposes [she] was representing both sides of a
transaction.”
{¶24} Dixon is correct in identifying issues related to representing both
sides of a transaction—if we accept for the sake of argument that making a loan
without Heim’s knowledge constitutes “representing” the client. But Dixon fails
to acknowledge the deeper nature and severity of her misconduct. The panel found
that “[n]o disclosure of this loan was made to Bertha Heim.” The board in turn
adopted this factual finding, and Dixon does not object to the finding here. By
acknowledging only the conflict of representing both sides in the loan, Dixon has
failed to identify the larger issue: the money was never hers to lend in the first place.
{¶25} Similarly, Dixon’s expression of remorse is undercut by the
confusion that Dixon exhibited as to whether she believes that she had indeed
initially charged an excessive fee. First, she testified that her $18,651 fee was not
excessive for the labor and services that she rendered. Dixon then testified that she
had agreed to the stipulation because she realized that she “had botched from top
to bottom the Heim matter. * * * [T]he reason that I agreed to that particular
stipulation was I guess a fundamental belief that if you don’t provide services in a
meaningful [manner], one that advances the cause of the client, it is excessive.
Anything is excessive.” Such contradictory testimony highlights Dixon’s inability
to identify and appreciate the full scope of her errors.
{¶26} Further, the bar association argues in its brief that “Dixon’s request
to be considered for readmission in less than the two-year period proscribed [sic]
by Gov.Bar R. V(10)(B) raises the serious question whether she truly appreciates
the degree to which she violated the Code of Professional Responsibility, abused a
client’s trust, and abused the public’s trust.” In her objections to this court, Dixon
continued to seek potential early reinstatement, even after both the panel and the
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board had rejected Dixon’s attempt on the basis that it would “not impose an
adequate penalty for [her] intentional dishonesty.” We agree that the bar
association raises a legitimate concern that, coupled with our recognition of
Dixon’s inability to perceive the extent and nature of her misconduct, supports our
finding that Dixon has failed to acknowledge the wrongful nature of her conduct in
regard to the misappropriation and in attempting to charge an excessive fee. See
Section 10(B)(1)(g) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline. This aggravating factor offsets Dixon’s incomplete expression of
remorse.
III
{¶27} Against the foregoing mitigating factors of varying persuasiveness,
we weigh Dixon’s admitted misconduct comprising fifteen distinct violations of the
Disciplinary Rules and a violation of her duty to cooperate in the investigation. We
find that the mitigating factors present in this case fail to warrant a lesser sanction
than disbarment. We have held that in most instances, “[t]he continuing public
confidence in the judicial system and the bar requires that the strictest discipline be
imposed in misappropriation cases.” Cleveland Bar Assn. v. Belock (1998), 82
Ohio St.3d 98, 100, 694 N.E.2d 897. Misappropriation was but one form of Dixon’s
misconduct. As the board correctly explained, Dixon “has committed disciplinary
rule violations involving incompetence, neglect, dishonesty and misrepresentation
involving commingling and misappropriation of a client’s funds, an attempt to
charge an excessive fee, and failure to cooperate initially in the disciplinary process
until she was advised to do so by retained counsel.” Dixon’s mitigating
circumstances inadequately offset the more compelling interest of protecting the
public.
{¶28} This court hereby disbars Dixon from the practice of law. Costs are
taxed to Dixon.
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Judgment accordingly.
MOYER, C.J., PFEIFER and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., dissents.
RESNICK and F.E. SWEENEY, JJ., dissent and would indefinitely suspend
respondent.
__________________
Brouse McDowell and Virginia Brown; Baughman & Associates and Eileen
M. Joyce, for relator.
Gold, Schwartz & Company, L.P.A., and Niki Z. Schwartz; Charles W.
Kettlewell, for respondent.
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