Columbus Bar Assn. v. Watson

[Cite as Columbus Bar Assn. v. Watson, 132 Ohio St.3d 496, 2012-Ohio-3830.]

COLUMBUS BAR ASSOCIATION v. WATSON.

[Cite as Columbus Bar Assn. v. Watson, 132 Ohio St.3d 496, 2012-Ohio-3830.]

Attorney misconduct, including failing to promptly deliver funds that client is

entitled to receive—One-year suspension, stayed on conditions.

(No. 2011-2056—Submitted January 18, 2012—Decided August 28, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 11-048.

__________________

Per Curiam.

{¶ 1} Respondent, David Charles Watson Jr. of Columbus, Ohio, Attorney

Registration No. 0025989, was admitted to the practice of law in Ohio in 1985.

On May 2, 2011, relator, Columbus Bar Association, filed a three-count

complaint charging Watson with multiple violations of the Rules of Professional

Conduct in his representation of three separate clients.

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

Discipline conducted a hearing at which it received numerous exhibits and heard

testimony from relator’s investigator, Watson, Watson’s partner, Watson’s

psychiatrist, one of the affected clients, the judge who presided over one of the

matters in which Watson allegedly engaged in misconduct, and two attorneys who

represented the opposing parties in two of the investigated matters. During that

hearing, relator withdrew some of the allegations in Count One of the complaint.

Following the hearing, the panel issued a report finding that relator had proved by

clear and convincing evidence that Watson had violated Prof.Cond.R. 1.15(d)

(requiring a lawyer to promptly deliver funds or other property that the client is

entitled to receive) with respect to Count One and 1.15(a) (requiring a lawyer to

hold property of clients in an interest-bearing client trust account, separate from

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the lawyer’s own property) with respect to Counts Two and Three. But the panel

also found that relator had not proved the remaining allegations of misconduct by

clear and convincing evidence.

{¶ 3} Based upon the proven violations, the panel recommended that

Watson be suspended from the practice of law for six months, but that the entire

suspension be stayed on conditions. The board adopted the panel’s findings of

fact and misconduct, as well as the recommended sanction. We adopt the board’s

findings of fact and misconduct, but for the reasons that follow, we find that a

one-year suspension, all stayed on the recommended conditions, is the appropriate

sanction for Watson’s misconduct.

Misconduct

{¶ 4} The evidence adduced at the panel hearing demonstrates that with

respect to Count One, Watson received $250 from Teri Fravel (n.k.a. Pizzurro)

and deposited it into his operating account. Relator alleged that the money was

intended as a fee to refile a motion to reallocate parental rights and

responsibilities that had been dismissed by the court. Watson testified that

Pizzurro had given him the money to “decide which way to handle the matter.”

Watson conceded that Pizzurro was entitled to a refund of the $250 and that he

had failed to return the money, but claimed that Pizzurro owed him $3,000 and

that her subsequent bankruptcy filing rendered repayment impractical. Based

upon these facts, the panel and board found that Watson had violated

Prof.Cond.R. 1.15(d).

{¶ 5} With regard to Count Two, the panel and board found that while

representing Jane Searcy in a divorce case, Watson was entrusted with a $1,800

government check that was to be divided equally between Searcy and her husband

during their pending divorce. Because Watson conceded that he had failed to

place these funds into his client trust account, the panel and board found that he

had violated Prof.Cond.R. 1.15(a).

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{¶ 6} And with respect to Count Three, the panel and board found that

Watson admitted that he had commingled personal and client funds in violation of

Prof.Cond.R. 1.15(a) by depositing a $20,000 gift from his mother into his client

trust account. He also issued two checks from his client trust account to pay his

personal rent. The panel and the board found, however, that the violation was

relatively minor, did not result in harm to any clients, and did not involve deceit

or other malfeasance. We adopt these findings of fact and misconduct.

Sanction

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

relevant factors, including the ethical duties that the lawyer violated and the

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. In making a final

determination, 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.

{¶ 8} The sole aggravating factor present in this case is that Watson

committed multiple offenses. See BCGD Proc.Reg. 10(B)(1)(d). Mitigating

factors found by the board include the absence of a prior disciplinary record in his

more than 25 years of practice, the absence of a dishonest or selfish motive,

Watson’s timely, good-faith effort to rectify the consequences of his misconduct,

and his cooperative attitude toward the disciplinary proceedings. See BCGD

Proc.Reg. 10(B)(2)(a), (b), (c), and (d). Judge Dana Preisse, of the Franklin

County Court of Common Pleas, Domestic Relations and Juvenile Branch,

testified to his good character, stating, “From what I observed in my courtroom, I

think he has a fine character and reputation.” See BCGD Proc.Reg. 10(B)(2)(e).

{¶ 9} Watson’s psychiatrist, Dr. James Girvin, testified that Watson had

symptoms of depression in January 2008. But although Watson’s symptoms

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would dissipate with prescribed medication, he did not always take the medication

as prescribed.

{¶ 10} In 2009, during a period in which Watson had stopped taking his

medication, his law clerk, Titus Donnell, graduated from law school, obtained his

license to practice law in Ohio, and became a partner in the Watson Law Group.

Donnell assumed responsibility for managing the business affairs of the practice,

and he implemented changes to make the operation more organized and efficient.

While the changes were successful, Donnell believed that Watson exhibited many

of the symptoms of attention-deficit/hyperactivity disorder (“ADHD”) and that

his behavior continued to hinder the practice. Therefore, he suggested that

Watson discuss the issue with Dr. Girvin.

{¶ 11} Watson raised Donnell’s concerns with Dr. Girvin, who diagnosed

him with ADHD. Dr. Girvin testified that he had prescribed Ritalin and that

Watson’s symptoms improved with the medication. He stated that ADHD could

interfere with a person’s professional practice because it interferes with the

person’s ability to prioritize tasks, keep appointments, keep track of paperwork,

and keep track of client-billing information.

{¶ 12} Although he spoke generally about the effects of ADHD and

Watson’s general lack of organizational skills and ability to focus, Dr. Girvin did

not express any opinion as to whether Watson’s undiagnosed ADHD contributed

to the misconduct found by the panel, and he declined to testify that ADHD was a

mental disability within the meaning of BCGD Proc.Reg. 10(B)(2)(g). Therefore,

the panel and board concluded that Watson had not established all the elements

necessary for his ADHD to be considered as a mitigating factor. See BCGD

Proc.Reg. 10(B)(2)(g)(i) through (iv).

{¶ 13} The board recommends a six-month fully stayed suspension for

Watson’s conduct, citing several cases in which we imposed such suspensions for

minor trust-account violations. See, e.g., Disciplinary Counsel v. Vivyan, 125

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Ohio St.3d 12, 2010-Ohio-650, 925 N.E.2d 947 (imposing a six-month stayed

suspension on an attorney who withdrew approximately $1,500 in unearned

settlement proceeds from his client trust account); Disciplinary Counsel v.

Newcomer, 119 Ohio St.3d 351, 2008-Ohio-4492, 894 N.E.2d 50 (imposing a six-

month stayed suspension on an attorney who used his client trust accounts for his

personal banking needs, commingled personal and client funds in that account,

and overdrew that account on two separate occasions). But in light of the

testimony from Donnell and Dr. Girvin, the board recommends that the following

conditions be placed upon the stay: “that [Watson] commit no further misconduct;

that, within 60 days of the effective date of the Court’s order, he submit to an

evaluation by a qualified health care professional concerning his ADHD,

including a diagnosis and treatment regimen; that he enter into a contract with the

Ohio Lawyers Assistance Program (OLAP) that shall be of such duration as

OLAP determines to be necessary to ensure that [Watson’s] ADHD is no longer

hindering his ability to engage in the ethical practice of law; that he comply with

OLAP’s treatment recommendations as set forth in the contract; and that he be on

probation until the latter of the expiration of the OLAP contract or twelve months

from the effective date of the Court’s disciplinary order.”

{¶ 14} While we agree that the offenses in Vivyan and Newcomer are

comparable to those committed by Watson, neither of those cases involved an

ongoing mental-health condition that could affect the attorney’s present ability to

competently, ethically, and professionally practice law. Here, in contrast, Watson

has been diagnosed with ADHD and has reported that the treatment prescribed by

Dr. Girvin has improved his organizational skills and ability to focus. While Dr.

Girvin believes that Watson’s report is sincere and that he is compliant with his

treatment regimen, he also testified that “[s]ometimes the symptoms of the illness

get in the way of the regularity and adherence to taking the medicine, getting

refills, all that stuff.” Because the very symptoms of his condition may impede

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his ability to comply with treatment, and because the record contains some

evidence that Watson drifted away from the treatment of his depression in the

past, we believe that a one-year fully stayed suspension will better protect the

public from future misconduct.

{¶ 15} Accordingly, we suspend David Charles Watson Jr. from the

practice of law for one year, but fully stay that suspension on the conditions that

he (1) commit no further misconduct, (2) submit within 60 days of this opinion

and order to a mental-health evaluation conducted by the Ohio Lawyers

Assistance Program (“OLAP”) or a qualified mental-health-care professional

selected by OLAP, (3) enter into an OLAP contract, the duration of which shall be

determined by OLAP, (4) comply with all the treatment recommendations as set

forth in the OLAP contract, and (5) serve a period of monitored probation in

accordance with Gov.Bar R. V(9) until the expiration of the OLAP contract or 12

months from the effective date of this court’s order, whichever is later. If Watson

fails to comply with the conditions of the stay, the stay shall be lifted, and he shall

serve the full one-year suspension. Costs are taxed to Watson.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

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

Counsel; and Bradley N. Frick, for relator.

Steven G. Janik, Audrey K. Bentz, and Colin P. Sammon, for respondent.

______________________

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