Disciplinary Counsel v. Whitfield

[Cite as Disciplinary Counsel v. Whitfield, 132 Ohio St.3d 284, 2012-Ohio-2708.]

DISCIPLINARY COUNSEL v. WHITFIELD.

[Cite as Disciplinary Counsel v. Whitfield,

132 Ohio St.3d 284, 2012-Ohio-2708.]

Attorneys—Misconduct—Conduct adversely reflecting on fitness to practice

law—Unauthorized practice of law—Two-year suspension, with credit for

time served, on conditions.

(Nos. 2011-0284 and 2011-1755—Submitted January 18, 2012—Decided

June 20, 2012.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 10-078.

__________________

Per Curiam.

{¶ 1} Respondent, James Jonathan Whitfield of Cincinnati, Ohio,

Attorney Registration No. 0080720, was admitted to the practice of law in Ohio in

2006.1 In February 2010, Whitfield informed relator, disciplinary counsel, that he

had been convicted of aggravated assault, a felony offense. Consequently, we

suspended Whitfield’s license on an interim basis, effective May 24, 2010. In re

Whitfield, 125 Ohio St.3d 1428, 2010-Ohio-2261, 927 N.E.2d 2. And on

November 1, 2011, we suspended respondent from the practice of law for his

failure to register as an attorney for the 2011-to-2013 biennium. In re Attorney

Registration Suspension of Whitfield, 130 Ohio St.3d 1420, 2011-Ohio-5627, 956

N.E.2d 310.

{¶ 2} On August 16, 2010, relator filed a two-count complaint alleging

that Whitfield’s felony conviction adversely reflected on his fitness to practice

1. Whitfield testified that he had also been licensed to practice in Maryland.

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law and that with respect to a single client, he had engaged in the unauthorized

practice of law in Kentucky by signing an entry of appearance, as well as a

request for and an agreed order for genetic testing.

{¶ 3} In accordance with BCGD Proc.Reg. 11, the parties submitted a

consent-to-discipline agreement containing stipulations of fact and misconduct

and a recommendation that Whitfield be suspended for one year with six months

stayed and with credit for time served under the interim suspension. On the

recommendation of a panel of its members, the Board of Commissioners on

Grievances and Discipline recommended that we adopt the consent-to-discipline

agreement, but we rejected the parties’ recommended sanction and remanded the

matter to the board for further proceedings. Disciplinary Counsel v. Whitfield,

128 Ohio St.3d 1437, 2011-Ohio-1527, 944 N.E.2d 238.2

{¶ 4} On remand, the parties submitted their stipulated findings of fact,

misconduct, and mitigation, but agreed that a two-year suspension, all stayed,

would be an appropriate sanction for Whitfield’s misconduct. A panel of the

board conducted a hearing and adopted the parties’ stipulations but recommended

that he be suspended for two years with credit for time served under his interim

felony suspension. The board adopted the panel’s report in its entirety, and so do

we.

Misconduct

{¶ 5} The stipulated facts and testimony demonstrate that in April 2009,

Whitfield was involved in an altercation with another man at a bar and hit him in

the head with a glass bottle, causing serious injuries, including two facial

lacerations and a piece of glass lodged in the man’s eye. Whitfield was indicted

on two counts of felonious assault. In February 2010, he pleaded guilty to one

2. The board report recommending that we adopt the parties’ consent-to-discipline agreement was

filed with this court in case No. 2011-0284. Upon filing with this court, the board report

following remand was assigned case No. 2011-1755. We consolidate these cases, sua sponte, for

disposition.

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January Term, 2012

count of aggravated assault, a fourth-degree felony, in violation of R.C.

2903.12(A)(2), in exchange for dismissal of the felonious-assault charges. He

was sentenced to 90 days in jail and two years of community control. He reported

his misconduct to relator, which resulted in his May 24, 2010 interim felony

suspension from the practice of law.

{¶ 6} The parties also stipulated and the board found that while serving

as the legal-services coordinator for Talbert House in Cincinnati, Ohio, Whitfield

represented Everett L. Gregory in a paternity action in the Kenton Circuit Court,

Family Court Division, in Kentucky. Though he was not licensed to practice law

in Kentucky, Whitfield signed several documents, including an entry of

appearance, that were filed with the court, and the court served various documents

on him as counsel of record.

{¶ 7} Based upon the stipulated facts summarized above, the parties

agree, and the panel and board found, that Whitfield’s conduct with respect to

each count violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in

conduct that adversely reflects on the lawyer's fitness to practice law) and that his

conduct with respect to count two also violated Prof.Cond.R. 5.5(a) (prohibiting a

lawyer from practicing law in a jurisdiction in violation of the regulation of the

legal profession in that jurisdiction).

{¶ 8} We adopt the stipulations of fact and misconduct as submitted by

the parties and found by the board.

Sanction

{¶ 9} In recommending a sanction, the board considered the aggravating

and mitigating factors listed in BCGD Proc.Reg. 10. See Disciplinary Counsel v.

Broeren, 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. As

mitigating factors, the parties stipulated and the board found that Whitfield has

no prior disciplinary record other than the interim felony suspension arising from

the same aggravated-assault conviction that is the subject of count one herein, that

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he did not act with a dishonest or selfish motive, and that other penalties and

sanctions have been imposed. See BCGD Proc.Reg. 10(B)(2)(a), (b), and (f).

{¶ 10} The parties also stipulated, and the board found, that Whitfield has

made full and free disclosures and displayed a cooperative attitude throughout the

disciplinary proceedings, noting that at relator’s request, he submitted to mental-

health and substance-abuse evaluations conducted by the Ohio Lawyers

Assistance Program (“OLAP”). See BCGD Proc.Reg. 10(B)(2)(d). Although the

evaluation did not find any issues that would have contributed to Whitfield’s

misconduct, Megan Snyder, a licensed independent social worker for OLAP,

testified that Whitfield was diagnosed with an adjustment disorder and depressed

mood as a consequence of his arrest and incarceration. As a result, he has entered

into, and fully complied with, a two-year mental-health-recovery contract with

OLAP.

{¶ 11} Although the parties stipulated that no aggravating factors are

present, the board found that the physical harm to the victim of Whitfield’s assault

was an aggravating factor to be considered in determining the appropriate

sanction for Whitfield’s misconduct. See BCGD Proc.Reg. 10(B)(1)(h).

{¶ 12} The parties stipulated that a two-year, fully stayed suspension is

the appropriate sanction for Whitfield’s misconduct. The panel and board,

however, recommend that we suspend Whitfield for two years but give him credit

for the time he has served under his interim felony suspension. In support of this

recommendation, they cite mitigating factors, Whitfield’s remorse, and

Disciplinary Counsel v. Goodall, 103 Ohio St.3d 501, 2004-Ohio-5583, 817

N.E.2d 23 (imposing a six-month suspension with credit for time served under an

indefinite felony suspension for an attorney convicted of aggravated assault after

she threw a bottle, injuring her husband’s arm during a domestic dispute).

{¶ 13} We find the sanction in Goodall to be instructive, but because

Whitfield engaged in the unauthorized practice of law in Kentucky in addition to

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January Term, 2012

being convicted of aggravated assault, we conclude that the sanction

recommended by the board is the appropriate sanction for his misconduct.

However, we impose the additional requirements that he extend his OLAP

contract for an additional two years from the date of this opinion and continue to

follow the treatment recommendations of his mental-health professionals.

{¶ 14} Accordingly, we suspend James Jonathan Whitfield from the

practice of law in Ohio for two years but credit him for the time served under the

interim felony suspension imposed on May 24, 2010, conditioned upon the

extension of his OLAP contract for two years from the date of this opinion and his

continued compliance with the treatment recommendations of his mental-health

professionals. Costs are taxed to Whitfield.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP,

and MCGEE BROWN, JJ., concur.

O’DONNELL, J., dissents and would indefinitely suspend respondent for

this misconduct.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Heather H. Coglianese,

Assistant Disciplinary Counsel, for relator.

James Jonathan Whitfield, pro se.

______________________

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