Columbus Bar Assn. v. Culbreath

[Cite as Columbus Bar Assn. v. Culbreath, 134 Ohio St.3d 24, 2012-Ohio-5031.]

COLUMBUS BAR ASSOCIATION v. CULBREATH.

[Cite as Columbus Bar Assn. v. Culbreath,

134 Ohio St.3d 24, 2012-Ohio-5031.]

Attorneys—Misconduct—Multiple trust-account violations—False statements—

Failure to cooperate—Indefinite suspension.

(No. 2012-0999—Submitted September 11, 2012—Decided November 1, 2012.)

On CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-060.

__________________

LUNDBERG STRATTON, J.

{¶ 1} Respondent, Stanlee E. Culbreath of Columbus, Ohio, Attorney

Registration No. 0033211, was admitted to the practice of law in Ohio in 1975.

On March 22, 2000, we suspended him from the practice of law for six months,

with the entire six months stayed, for assisting a nonlawyer in the unauthorized

practice of law and failing to disclose the assistance. Columbus Bar Assn. v.

Culbreath, 88 Ohio St.3d 271, 725 N.E.2d 629 (2000).

{¶ 2} On August 16, 2010, relator, Columbus Bar Association (“CBA”),

filed a complaint charging Culbreath with three counts of misconduct involving

violations of the Ohio Rules of Professional Conduct. The CBA amended its

complaint on October 1, 2010. The amended complaint alleged that Culbreath

had neglected to properly document a settlement and distribute the funds, failed to

properly maintain his client trust account, and failed to fully cooperate in the

disciplinary process by not making himself available for a deposition and by not

producing various requested documents in a timely manner.

{¶ 3} A panel of the Board of Commissioners on Grievances and

Discipline heard the cause on May 9, 2011, and on January 30, 2012. Based upon

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the record, including exhibits and stipulations, the panel concluded that there was

clear and convincing evidence that Culbreath had violated Prof.Cond.R. 1.15

(requiring a lawyer to keep funds of clients in a separate interest-bearing account,

to keep records of the account, and to perform a monthly reconciliation), 4.1

(prohibiting a lawyer from making a false statement of law or fact to a nonclient),

5.3 (requiring a lawyer to make reasonable efforts to ensure that the conduct of

his or her nonlawyer employees is compatible with the lawyer’s professional

obligations), 8.1 (prohibiting a lawyer from failing to respond to inquiries in a

disciplinary investigation), and 8.4(d) and (h) (prohibiting a lawyer from engaging

in conduct prejudicial to the administration of justice and conduct that adversely

reflects on the lawyer’s fitness to practice law). The panel considered factors in

mitigation and aggravation and recommended that Culbreath be permanently

disbarred.

{¶ 4} The Board of Commissioners on Grievances and Discipline agreed

with the panel’s findings, conclusions, and recommended sanction.

{¶ 5} Culbreath filed objections to the recommended sanction of

permanent disbarment on the basis that the board erroneously concluded that he

had failed to cooperate in the disciplinary process in violation of Prof.Cond.R. 8.1

and that the board failed to consider in mitigation his medical diagnosis presented

by Judith Fisher.

{¶ 6} For the reasons stated below, we sustain Culbreath’s objection to

the recommended sanction. We find that the more appropriate sanction is an

indefinite suspension from the practice of law in Ohio, with conditions on

reinstatement.

Findings of Panel and Board

Count One

{¶ 7} In 2007, Culbreath assumed responsibility for a personal-injury

claim belonging to Kossar Hassan after Hassan’s attorney, Paul Brown, who was

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also Culbreath’s law partner, unexpectedly died. On March 10, 2008, Culbreath

settled the claim for $5,000. Although at the time of the settlement, Culbreath

knew that Hassan had outstanding medical expenses arising from her injuries, he

did not pay the medical-service providers in a timely manner.

{¶ 8} Gisela Salinas, a representative from Health 1 Medical, an

independent firm that performed billing services for Hassan’s medical-service

provider, testified before the panel that in June or July 2009, she contacted Hassan

about payment. Salinas testified that Hassan told her that the case had been

settled in March 2008 and that Hassan had received a check for only $700 out of

the $5,000 settlement.

{¶ 9} Salinas further testified that she left multiple telephone messages

for Culbreath. He eventually returned her calls after she threatened to file a

complaint against him for nonpayment of the medical bill. She testified that

Culbreath insisted that she could not have spoken with Hassan, because Hassan

was out of the country, and that he told her that the case had been settled for only

$1,800. She asked Culbreath for a disbursement sheet and payment. He sent the

payment but did not include the disbursement sheet. Salinas testified that in a

later conversation, Culbreath told her he could not locate the file or provide a

copy of the disbursement sheet.

{¶ 10} In his deposition, Culbreath testified that he was not certain

whether he had had any conversation with Salinas about Hassan’s medical bills.

He later testified at the hearing that the conversation with Salinas was based on a

misunderstanding. He thought she was asking about another personal-injury case

that had settled for $1,800 around the same time as Hassan’s case.

{¶ 11} Culbreath testified that he had forgotten to contact the medical

providers following the settlement to negotiate payment of their fees. He

eventually sent a partial payment from his trust account on July 18, 2009, more

than a year after the settlement. Culbreath blamed the mistake on staffing

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changes at his office and a new secretary who had mistakenly made the partial

payment. Culbreath sent a second check to correct the error, but he was unable to

produce a signed disbursement sheet as evidence of the Hassan settlement.

Count Two

{¶ 12} Culbreath admitted that he had commingled his funds and his

clients’ funds in his trust account, used his trust account to pay personal and

business expenses, and made unauthorized withdrawals from the account. He

also stipulated that he had failed to maintain ledgers for the trust account.

{¶ 13} In his deposition, Culbreath admitted that from 2007 through 2009,

he was unaware of the trust-account requirements that had become effective on

February 1, 2007. He testified that his trust account became overdrawn on three

occasions. He further admitted that he had credit issues and a number of

judgments against him, including a judgment in foreclosure.

Count Three

{¶ 14} On October 9, 2009, the CBA served a request for the production

of documents and a notice of deposition on Culbreath for November 30, 2009.

The parties stipulated that there was some delay in scheduling but that Culbreath

finally appeared for his deposition on April 9, 2010. Culbreath acknowledged

that he did not immediately locate and produce all of the documents requested and

that he did not have in his possession many of the documents requested. For

instance, Culbreath produced only some bank statements from his trust account.

He was unable to produce any deposit or withdrawal slips for the years 2008 and

2009, and only very few check stubs. Culbreath also failed to timely produce

requested federal tax returns.

Violations of the Rules of Professional Conduct

{¶ 15} We agree with the panel’s conclusions, as adopted by the board,

that there was clear and convincing evidence that Culbreath had violated

Prof.Cond.R. 1.15, 4.1, 5.3, 8.1, and 8.4.

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Sanction

{¶ 16} When imposing sanctions for attorney misconduct, we consider all

relevant factors, including the duties violated and sanctions imposed in similar

cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743,

775 N.E.2d 818, ¶ 16. We also weigh evidence of the aggravating and mitigating

factors listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115

Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.

{¶ 17} In mitigation, Culbreath offered that he has had only one prior

instance of discipline since becoming licensed to practice law in 1975. He

submitted testimony or letters from three character references. A representative

of the Ohio Lawyers Assistance Program (“OLAP”) testified that Culbreath had

signed a monitoring contract in January 2010 and that he was doing “moderately

well” in compliance.

{¶ 18} Judith Fisher, a clinical social worker with whom Culbreath began

counseling after the May 9, 2011 hearing, also testified in mitigation. According

to Fisher, she diagnosed Culbreath with an adjustment disorder with depression

and anxiety. Culbreath had disclosed that numerous personal problems had

occurred within a short period of time, including the death of his brother, who had

managed the law firm’s finances, the death of his daughter’s fiancé a month later,

and the unexpected death of his law partner and friend, Paul Brown. In addition,

Culbreath told her that his sister, who worked as his legal secretary, had taken

time off following her husband’s death, that his son was incarcerated, and that his

wife suffered from a substance-abuse problem.

{¶ 19} Fisher opined that these events had caused Culbreath’s emotional

symptoms, which in turn affected his ability to practice law. She testified that in

her opinion, Culbreath could return to the practice of law under certain

circumstances, such as the continuation of counseling and his relationship with

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OLAP, plus the appointment of a monitor for his law practice. BCGD Proc.Reg.

10(B)(2)(e) and (g).

{¶ 20} The panel identified the presence of several aggravating factors,

including Culbreath’s prior disciplinary record, his repeated refusal to

acknowledge the wrongfulness of his conduct, including the circumstances of his

prior disciplinary case, his lack of cooperation, his repeated abuse of his trust

account, and his poor recordkeeping and mishandling of client files that

constituted a pattern of misconduct resulting in multiple offenses. BCGD

Proc.Reg. 10(B)(1)(a), (c), (d), (e), and (g).

{¶ 21} Culbreath argued that a six-month suspension of his law license,

with all six months stayed, was an appropriate sanction. The CBA requested a

sanction of indefinite suspension. But the panel recommended, and the board

agreed, that Culbreath should be permanently disbarred, citing his “prior

disciplinary history, the gravity of his misconduct, and his uncooperative, evasive

manner and continuing irrational thought processes.”

{¶ 22} The board cited Dayton Bar Assn. v. Wilson, 127 Ohio St.3d 10,

2010-Ohio-4937, 935 N.E.2d 841, in which we imposed an indefinite suspension

upon an attorney who failed to maintain accurate records of the funds in her trust

account, failed to participate in the disciplinary process, and refused to

acknowledge her wrongful conduct. The board also cited Disciplinary Counsel v.

Wise, 108 Ohio St.3d 381, 2006-Ohio-1194, 843 N.E.2d 1198, in which we

imposed an indefinite suspension upon an attorney who misused his trust account,

failed to provide records for his account during the disciplinary process, and

provided less than candid responses to inquiries regarding the records.

{¶ 23} Finally, we imposed an indefinite suspension in Disciplinary

Counsel v. Ranke, 130 Ohio St.3d 139, 2011-Ohio-4730, 956 N.E.2d 288, for

misconduct that included failure to properly maintain a trust account and failure to

cooperate in the disciplinary investigation.

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{¶ 24} After reviewing the board’s analysis of the evidence and the case

law in support of its recommendation, we believe that an indefinite suspension,

with stringent conditions on reinstatement, is appropriate under these

circumstances. Many of Culbreath’s problems stem from the numerous tragic

events that disrupted his personal and professional life beginning in 2007. His

counselor, Judith Fisher, testified that as a result of his grief, he was unable to

focus on his law practice, which in turn affected his ability to practice law.

{¶ 25} Prior to any reinstatement, Culbreath must demonstrate that he has

taken 12 hours of instruction on current professional-responsibility rules and

acceptable office practices in addition to the general requirements in Gov.Bar R.

X(3)(G). In addition, he must submit an independent mental-health evaluation,

successfully complete his OLAP contract, and commit no further misconduct.

Upon reinstatement, he must be assigned a monitor for one year of probation,

during which he must practice law in association with at least one other

experienced lawyer. Under these circumstances, an indefinite suspension of

Culbreath’s license to practice law fulfills the underlying purpose of the

disciplinary proceedings, i.e., “to safeguard the courts and to protect the public.”

Ohio State Bar Assn. v. Weaver, 41 Ohio St.2d 97, 100, 322 N.E.2d 665 (1975).

{¶ 26} Accordingly, we indefinitely suspend Stanlee E. Culbreath from

the practice of law in Ohio, with conditions on reinstatement as stated. Costs are

taxed to Culbreath.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and

MCGEE BROWN, JJ., concur.

__________________

Bruce A. Campbell, Bar Counsel, and A. Alysha Clous, Assistant Bar

Counsel; Terry K. Sherman; and Tyack, Blackmore & Liston Co., L.P.A. and

James P. Tyack, for relator.

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Kenneth R. Donchatz, for respondent.

______________________

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