The opinion
[Cite as Butler Cty. Bar Assn. v. Minamyer, 129 Ohio St.3d 433, 2011-Ohio-3642.]
BUTLER COUNTY BAR ASSOCIATION v. MINAMYER.
[Cite as Butler Cty. Bar Assn. v. Minamyer,
129 Ohio St.3d 433, 2011-Ohio-3642.]
Attorneys at law — Misconduct — Failure to inform client of lack of malpractice
insurance — Neglect of legal matter — Failure to communicate with client
— Dishonest statements to client — Mental-health issues as mitigating —
One-year stayed suspension.
(No. 2009-2284 — Submitted March 22, 2011 — Decided July 28, 2011.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 09-044.
__________________
Per Curiam.
{¶ 1} Respondent, William Eric Minamyer of Loveland, Ohio, Attorney
Registration No. 0015677, was admitted to the practice of law in Ohio in 1979.1
In June 2009, relator, Butler County Bar Association, filed a four-count complaint
charging respondent with multiple violations of the Code of Professional
Responsibility and the Rules of Professional Conduct.2
{¶ 2} Respondent initially cooperated in relator’s investigation.
Although he was served with the complaint, he did not file an answer or otherwise
respond to it. A master commissioner appointed by the Board of Commissioners
1. It appears that respondent is also licensed to practice law in Kentucky.
2. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the
former and current rules are cited for the same acts, the allegations comprise a single continuing
ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894
N.E.2d 31, ¶ 1, fn. 1.
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on Grievances and Discipline granted relator’s motion for default, making
findings of fact and misconduct and recommending that respondent be suspended
from the practice of law for one year with one year of probation following
reinstatement, including the appointment of a monitor in accordance with
Gov.Bar R. V(9)(B). The board adopted the master commissioner’s findings of
fact and conclusions of law but recommended a two-year suspension with the
second year stayed for monitored probation. This court issued an order to show
cause why the recommendation of the board should not be accepted by the court.
{¶ 3} Respondent responded to the show-cause order, seeking leave to
introduce mitigating evidence that he sustained a traumatic brain injury while
serving in the Navy Reserve Judge Advocate General’s Corps and that he suffered
from posttraumatic-stress disorder (“PTSD”) as a result of his active military
service. He also objected to the board’s findings of fact.
{¶ 4} After oral argument, we remanded the matter to the board to
receive and consider evidence regarding respondent’s health conditions, and the
board appointed a panel to comply with our order. As a result of those
proceedings, the board issued a revised recommendation that respondent be
suspended for two years with 18 months stayed on conditions, and respondent has
once again filed objections.
{¶ 5} We adopt the board’s findings of fact and misconduct because the
record clearly and convincingly demonstrates that respondent (1) failed to notify
his client that he did not carry malpractice insurance, (2) neglected that client’s
legal matter, (3) failed to communicate with the client regarding the status of her
case, and (4) led the client to believe that her case was still pending after it had
been dismissed for failure to prosecute. Because we accord greater weight to
respondent’s mitigating mental-health issues, however, we suspend respondent
from the practice of law for one year but stay the entire suspension on conditions.
Misconduct
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{¶ 6} During its investigation, relator deposed respondent and the
grievant. The deposition testimony demonstrates that in April 2006, respondent
filed a complaint on the grievant’s behalf in the Butler County Court of Common
Pleas. Although respondent received notice of and participated in a mediation
session and unsuccessfully opposed defendant’s counsel’s motion for leave to
withdraw as counsel, he failed to submit a pretrial statement or appear at the
scheduled pretrial on August 30, 2007. And in September 2007, the trial court
granted the defendant’s unopposed motion to dismiss the complaint.
{¶ 7} When respondent learned of the dismissal, he advised the grievant
that she did not need to appear for trial, without explaining that her case had been
dismissed. From September to December 2007, when the grievant called
respondent to discuss her case, he told her that he would send her something in
the mail, but he never did. In December 2007, the grievant received a statement
of court costs due and learned for the first time that her complaint had been
dismissed.
{¶ 8} Respondent admitted that he had failed to advise the grievant that
he did not carry malpractice insurance, but advanced various excuses for his
neglect, including the misdirection of his mail by the court, an office move, and
an illness. He offered no documentary evidence to corroborate his testimony.
{¶ 9} In its December 18, 2009 report granting relator’s motion for
default and in its December 9, 2010 report on remand, the board found that
respondent had violated DR 1-104 and Prof.Cond.R. 1.4(c) (both requiring a
lawyer to inform the client if the lawyer does not maintain professional-liability
insurance), DR 6-101(A)(3) and Prof.Cond.R. 1.3 (both requiring a lawyer to act
with reasonable diligence in representing a client), Prof.Cond.R. 1.4(a)(3)
(requiring a lawyer to keep the client reasonably informed about the status of a
matter), Prof.Cond.R. 1.4(a)(4) (requiring a lawyer to comply as soon as
practicable with reasonable requests for information from the client), and DR 1-
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102(A)(4) and Prof.Cond.R. 8.4(c) (both prohibiting a lawyer from engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation). We adopt
these findings of fact and misconduct.
Sanction
{¶ 10} 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 Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
{¶ 11} As aggravating factors, the board found that respondent had
committed multiple ethical violations, had harmed his client, and had failed to
cooperate in the disciplinary proceedings and that his failure to notify his client
that her case had been dismissed was deceitful. See BCGD Proc.Reg.
10(B)(1)(d), (e), and (h). Although respondent testified that he suffered from
depression, he did not substantiate his testimony with any medical records or
testimony from his treating professionals.
{¶ 12} On remand, the panel appointed to receive and consider evidence
regarding respondent’s health conditions conducted a hearing, at which it heard
respondent’s testimony regarding his traumatic brain injury and PTSD, but neither
party introduced any medical evidence regarding those conditions. Consequently,
the board ordered respondent to submit to an independent psychiatric examination
to determine if he suffered from mental illness.
{¶ 13} Citing the report of the independent psychiatric evaluator, Douglas
Beech, M.D., the panel reluctantly found that respondent’s diagnosed mental-
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health condition qualified as a mitigating factor pursuant to BCGD Proc.Reg.
10(B)(2)(g), observing that “his attitude seemed to be ‘to deny all wrongdoing,
but if you don’t believe me, then I suffer from a mental disability that accounts for
my actions.’ ” While the board again recommended a two-year suspension from
the practice of law, it concluded that 18 months of that suspension (rather than the
12 months it had previously recommended) be stayed on conditions.
{¶ 14} Respondent objects to the board’s report and, citing Dr. Beech’s
conclusion that he did not timely defend himself due to his mental-health
conditions, seeks an opportunity to address the merits of the underlying grievance.
Specifically, respondent argues that his client’s case was reinstated by the trial
court based upon certain falsehoods committed by the defendant to the action and
that his client later obtained a default judgment in her favor.
{¶ 15} We have stated that we grant remands to supplement the record
“only under the most exceptional circumstances.” See Dayton Bar Assn. v.
Stephan, 108 Ohio St.3d 327, 2006-Ohio-1063, 843 N.E.2d 771, ¶ 5. We have
already remanded this matter once to permit respondent to submit mitigating
evidence of his mental disability. As a result of that remand, the record now
contains evidence that his mental-health conditions played a significant role in his
failure to timely respond to relator’s complaint. The alleged misdeeds of the
defendant in the underlying civil case cannot excuse respondent’s deceit, failure
to keep his client informed about the status of her case, failure to respond to her
reasonable requests for information, and failure to timely seek relief from the
judgment dismissing her case, all of which have been proven by clear and
convincing evidence. Nor can they excuse his admitted failure to inform the
client that he did not carry malpractice insurance. Because respondent has not
demonstrated any exceptional circumstances warranting a second remand, we
overrule this objection and adopt the board’s findings of fact and misconduct.
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{¶ 16} In the alternative, respondent seeks a fully stayed suspension based
upon the successful and ongoing treatment of his PTSD, depression, and
traumatic brain injury, combined with the measures he has taken to safeguard his
practice and the appointment of a practice monitor.
{¶ 17} After reading the record in this case, reviewing respondent’s
medical records, and interviewing and examining respondent, Dr. Beech
submitted a report to the panel. In that report, he found:
{¶ 18} “[Respondent] began receiving treatment in 2002 following an
incident of trauma while working overseas in the Navy reserves. The helicopter
he was a passenger in made a crash landing on a naval vessel and he suffered a
head injury and loss of consciousness as a result. Preceding the crash was a
period of intense anxiety as a realistic threat of death existed as a result of the
tenuous circumstances. He subsequently experienced a depressive episode and
substantial anxiety. Over ensuing months he developed classic symptoms of post
traumatic stress disorder (PTSD) (traumatic re-experiencing [‘flashbacks’],
phobic avoidance, night terrors, insomnia, and generalized anxiety). He was
initially prescribed the antidepressant Celexa which was helpful for depressive
symptoms and anxiety. He subsequently underwent individual psychotherapy for
PTSD symptoms which was very helpful to him as well. Though the symptoms
of depression and PTSD have fluctuated and still persist, his symptoms have been
generally well-managed, exacerbated in times of increased external stress. His
depression has been moderately worse in the past year, as the recent revelations
about additional injuries and impairments have led him to feel more depressed.
{¶ 19} “Additionally [respondent] was evaluated last year at the [Veterans
Health Administration] medical center and diagnosed as having residual cognitive
deficits attributable to a traumatic brain injury. He has been engaged in treatment
and rehabilitation there to better define his cognitive deficits and maximize his
strengths.”
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{¶ 20} Dr. Beech found that respondent’s PTSD and depression played a
significant role in his failure to timely respond to relator’s complaint and, to a
lesser extent, contributed to his underlying misconduct. He concluded that by
combining outpatient treatment and pharmacological management with a reduced
caseload and the appointment of a practice monitor, respondent could continue to
practice law in a safe and responsible manner.
{¶ 21} We are ever mindful that the primary purpose of the disciplinary
process is not to punish the offender but to protect the public from lawyers who
are unworthy of the trust and confidence essential to the attorney-client
relationship. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-
6510, 858 N.E.2d 368.
{¶ 22} Since respondent was first diagnosed with depression, PTSD, and
traumatic brain injury, he has received substantial treatment. He has taken a
prescribed antidepressant, participated in individual psychotherapy, and
participated in various forms of rehabilitation, including speech therapy and
mental exercises to improve his memory. Recognizing the seriousness of his
conditions, respondent has also taken significant measures to ensure that his
cognitive deficits will not have any negative effect on his clients. He has reduced
the number of clients that he represents, uses a recorder, takes notes, and
communicates with his clients by e-mail as much as possible. He has also limited
the scope of his practice to domestic relations, general litigation, and labor law.
{¶ 23} This is the first disciplinary action that respondent has faced in his
more than 30 years of practice, and it involves respondent’s conduct with respect
to a single client matter. See BCGD Proc.Reg. 10(B)(2)(a) (providing that
absence of a prior disciplinary record is a factor that may be considered in favor
of a lesser sanction). And having observed respondent’s reasoned and articulate
presentation at oral argument, we find his expressions of remorse and contrition to
be genuine.
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{¶ 24} Taking into account respondent’s diagnoses, his treatment, and his
remedial actions, we do not believe that an actual suspension is necessary to
protect the public from future harm. Moreover, at oral argument, both of the
parties agreed that a two-year suspension, all stayed on conditions, would
adequately protect the public.
{¶ 25} In Toledo Bar Assn. v. Lowden, 105 Ohio St.3d 377, 2005-Ohio-
2162, 826 N.E.2d 836, ¶ 4, 7, we disciplined an attorney who had neglected two
separate client matters, failed to carry out his contract of professional employment
in those matters, and failed to cooperate in the resulting disciplinary
investigations. He had also falsely signed a client’s name on four support
schedules, notarized them as genuine, and filed them with the domestic relations
court. Id. at ¶ 2. Although we recognized that a violation of DR 1-102(A)(4)
generally requires an actual suspension from the practice of law for the public’s
protection, we observed that “BCGD Proc.Reg. 10(B)(2)(g) permits us to temper
the sanction we impose for a lawyer’s dishonesty to a client and court upon proof
that mental disability caused the misconduct, under some circumstances.” Id. at ¶
19. Citing as a mitigating factor the attorney’s documented bipolar disorder and
his willingness to commit to treatment, we imposed a two-year, fully stayed
suspension on the condition that he continue his mental-health treatment and
provide quarterly reports to relator during the stay. Id. at ¶ 20-21.
{¶ 26} Unlike Lowden, which involved two separate client matters, this is
a case of a respondent’s first disciplinary action in an otherwise unblemished 30-
year legal career, and involves a single client matter. Moreover, as noted
previously, respondent’s conduct was born of his extensive mental-health
problems, and his reasoned and articulate presentation at oral argument persuaded
this court that his expressions of remorse and contrition are genuine.
{¶ 27} Accordingly, we adopt the board’s findings of fact and misconduct
but suspend respondent from the practice of law in Ohio for one year, with the
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entire suspension stayed on the conditions that he (1) serve one year of probation
to be supervised by a monitor appointed by relator in accordance with Gov.Bar R.
V(9), (2) limit his practice to domestic relations, general litigation, and labor law
(a condition imposed at his own request), (3) continue to follow the
recommendations of his treating professionals, including ongoing
pharmacological management by his treating physician, and (4) commit no further
misconduct. If respondent fails to comply with these conditions, the stay will be
lifted, and respondent will serve the entire one-year suspension. Costs are taxed
to respondent.
Judgment accordingly.
PFEIFER, O’DONNELL, and MCGEE BROWN, JJ., concur.
LUNDBERG STRATTON, J., concurs separately.
O’CONNOR, C.J., and LANZINGER and CUPP, JJ., would order a two-year
suspension from the practice of law, all stayed on conditions.
__________________
LUNDBERG STRATTON, J., concurring.
{¶ 28} While I concur in the sanction in this matter, I write separately to
highlight the failure on remand of the examining psychiatrist to adequately
address the effects of respondent’s traumatic brain injury (“TBI”) and
posttraumatic-stress disorder (“PTSD”) on his fitness to practice law. This case is
symbolic of the problem many veterans face as they return from war with
TBI/PTSD. Too often, the medical community fails to recognize how TBI differs
from PTSD, to distinguish between the physical and psychological symptoms of
TBI, and to appreciate that although TBI has psychological symptoms, it is a
medical condition with real consequences.
{¶ 29} American service members have sacrificed greatly, most recently
in the battles in Afghanistan and Iraq. More than 1.6 million American service
members have deployed to Iraq and Afghanistan in Operation Iraqi Freedom and
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Operation Enduring Freedom, and over 565,000 have deployed more than once.
National Council on Disability, Invisible Wounds: Serving Service Members and
Veterans with PTSD and TBI (Mar. 4, 2009) 1, 8, available at
http://www.ncd.gov/newsroom/ publications/2009.
{¶ 30} Many of our veterans who have returned are still fighting the
psychological effects of war. Id. An estimated 25 to 40 percent of returning
veterans have psychological and neurological injuries associated with PTSD or
TBI, which have been called the “signature injuries” of the Iraq war. Christopher
Munsey, A Long Road Back (June 2007), 38 Monitor on Psychology 34.
{¶ 31} “It is common to make a distinction between visible injuries such
as orthopedic injuries, burns, and shrapnel wounds and less visible injuries such
as PTSD. The distinction often is characterized as ‘physical’ versus ‘mental’
injuries. These terms imply that PTSD somehow is not physical. However, this
is an artificial distinction. PTSD and other ‘mental illnesses’ are characterized by
measurable changes in the brain and in the hormonal and immune systems.”
Invisible Wounds at 8.
Definition of PTSD/TBI
Posttraumatic-Stress Disorder
{¶ 32} The Diagnostic and Statistical Manual of Mental Disorders (4th
Ed.2000), the publication that defines the criteria used in diagnosing mental
disorders, classifies PTSD as an anxiety disorder that arises from “exposure to an
extreme traumatic stressor involving direct personal experience of an event that
involves actual or threatened death or serious injury, or other threat to one’s
physical integrity; or witnessing an event that involves death, injury, or a threat to
the physical integrity of another person.” Id., 463, Section 309.81. According to
current estimates, between 10 and 30 percent of service members will develop
PTSD within a year of leaving combat. When depression, generalized anxiety
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disorder, and substance abuse are considered, the number increases to between 16
and 49 percent. Invisible Wounds at 2.
Traumatic Brain Injury
{¶ 33} TBI, which is a medical diagnosis rather than a psychological
diagnosis, is a “traumatically-induced structural injury and/or physiological
disruption of brain function as a result of an external force that is indicated by
new onset or worsening of at least one of the following clinical signs,
immediately following the event: (1) Any period of loss, or a decreased level, of
consciousness. (2) Any loss of memory for events immediately before or after the
injury. (3) Any alteration in mental state at the time of the injury (confusion,
disorientation, slowed thinking, etc.). (4) Neurological deficits (weakness, loss of
balance, change in vision, praxis, paresis/plegia, sensory loss, aphasia, etc.) that
may or may not be transient. (5) Intracranial lesion.” Office of the Surgeon
General, Proponency Office for Rehabilitation and Reintegration, “Army TBI
Program, Department of Defense Definition for TBI” (Feb. 2009), Slide 12.
{¶ 34} In veterans of recent wars, TBI is commonly caused by improvised
explosive devices, or IEDs, the makeshift bombs insurgents frequently use to
attack United States forces. A Long Road Back, 38 Monitor on Psychology 34.
However, in respondent’s case, the injuries were caused when the helicopter he
was in crashed into a naval vessel while attempting to land on the vessel in the
Indian Ocean.
{¶ 35} “Some surveys indicate that between 10 and 20 percent of soldiers
returning from deployments might have suffered a mild TBI.” Id.. The military
estimates that one-fifth of the troops with these mild injuries will have
prolonged—even lifelong—symptoms requiring continuing care. They may have
cognitive issues such as difficulty in thinking, memory problems, attention deficit,
mood swings, frustrations, headaches, fatigue, or many other symptoms. Invisible
Wounds at 20.
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{¶ 36} “Patients with a moderate to severe TBI might need physical
therapy to learn such basic skills as how to get up in the morning and put their
clothes on or how to walk smoothly again. * * * Motivation can also be a
challenge, especially as patients become more aware of their impaired cognitive
functioning. * * * [A]nger and depression can set in, as patients start to
understand the scope of the challenge they face. * * * Dealing with a patient who
already has a decreased ability to cope and concentrate because of PTSD—
combined with the cognitive difficulties of a TBI—isn’t something psychologists
often encounter in the civilian world * * *.” A Long Road Back, 38 Monitor on
Psychology 34.
{¶ 37} In addition to medical symptoms like altered consciousness,
seizures, infections, nerve damage, and sensory problems, persons with TBI also
experience cognitive, communication, behavioral, emotional, and sensory
problems. www.mayoclinic.com/health/traumatic-brain-injury/DS00552/
DSECTION=complications. Cognitive problems can include difficulties with
memory, learning, reasoning, problem-solving, speed of mental processing,
judgment, attention or concentration, multitasking, organization, decision-making,
and beginning and/or completing tasks. Id.
{¶ 38} Language and communication problems are common following
TBI and may include difficulty understanding or producing spoken and written
language (aphasia), difficulty deciphering nonverbal signals, inability to organize
thoughts and ideas, inability to use the muscles needed to form words (dysarthria),
problems with changes in tone, pitch, or emphasis to express emotions, attitudes
or subtle differences in meaning, trouble starting or stopping conversations,
trouble with turn-taking or topic selection, trouble reading cues from listeners,
and trouble following conversations. Id.
{¶ 39} Behavioral changes may include difficulty with self-control, lack
of awareness of abilities, risky behavior, inaccurate self-image, difficulty in social
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situations, and verbal or physical outbursts. Id. Emotional changes may include
depression, anxiety, mood swings, irritability, lack of empathy for others, and lack
of motivation. Id. Most people who have had significant brain injury will require
rehabilitation. They may need to relearn basic skills, such as walking or talking.
Id.
Respondent’s PTSD/TBI
{¶ 40} Respondent began receiving treatment in 2002, following an
incident of trauma while working overseas in the Navy Reserves. Respondent
described the trauma in this way in his response to our January 2010 show-cause
order:
{¶ 41} “In early February 2002 I transited from USS Bainbridge to USS
Peterson in the Indian Ocean off Somalia at maximum range with no reciprocal
fuel supply. The seas and winds were very bad and the Captain at first would not
allow us to try to land. We circled the ship for over an hour to exhaust our fuel to
minimize the possibility of fire. I was terrified by the prospect of crashing into the
sea if we could not land on the ship.
{¶ 42} “When we finally tried to land the wind caused us to come out of
line and the ship came up and hit the helicopter. It was at a minimum a very
rough landing in which I struck my head, losing consciousness. Afterward I fell
down in my quarters and vomited. Once we got to the Seychelles I got a hotel
room so I could recover. * * *
{¶ 43} “I have been troubled by night terrors from the middle of February
2002 until the present, although they are less frequent. Whenever I was home
from overseas assignment my family noticed serious problems I was having
sleeping, working and adjusting in general. I finally sought psychological
counseling * * * [and was diagnosed with] Post Traumatic Stress disorder
following a depression diagnosis by my primary care physician.
{¶ 44} “ * * *
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{¶ 45} “Since discovering these conditions I have altered my practice by
hiring my daughter as a paralegal to aid me in staying organized and managing
my time. I also underwent speech therapy. The VA doctor also identified nerve
damage to the left side of my body and face, caused by the helicopter accident.
Further, I am currently in the eighth week of a twelve-week cognitive therapy
regimen at the PTSD clinic in Ft. Thomas, Kentucky. * * *
{¶ 46} “All of these recent revelations have been very depressing. I know
I should have been engaged in addressing the issues before the Grievance
Commission, but I felt overwhelmed and was unable to deal with it. The PTSD
therapy is helping me to cope with these personal matters. I am truly sorry that I
did not do all that I should have done in responding to the committee. If given the
chance I will cooperate fully and submit to any physical or psychological testing
requested of me. I will provide whatever medical records not [sic] already
provided.
{¶ 47} “I apologize to both the Commissioners and this Court for my
condition leading to my recent lack of responsiveness.”
{¶ 48} In addition to respondent’s description, according to a case-
management and biopsychosocial assessment, after respondent’s accident, he
reported that he had lost consciousness for a few minutes and was dazed,
confused, and disoriented after he regained consciousness. Further, respondent
reportedly experienced the onset of headaches after he resumed consciousness,
and he noticed a knot of tissue at the right rear side of his scalp. Respondent was
evacuated from the helicopter, briefly evaluated, and given some Tylenol. He
experienced ringing in his ears after the impact and later experienced difficulty
reading and using computers.
{¶ 49} Respondent’s medical records indicate that he had recently
screened positive for postconcussion syndrome due to TBI, secondary to an
incident involving a helicopter and a ship at sea to which he had been deployed to
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January Term, 2011
conduct a Navy investigation. Respondent also had reported that he had noticed
difficulty reading and difficulty using computers after he sustained the
concussion. In addition, respondent reported that he noticed new-onset difficulty
remembering written testimony during that investigation at sea. He further
reported problems in remembering appointments, performing “to-do” items,
remembering people he speaks with, and remembering the content of his reading.
He also reported headaches, including symptoms entirely new after the helicopter
incident at sea.
{¶ 50} In October 2009, respondent reported that in the preceding month,
he had experienced disturbing memories, thoughts, or images of his stressful
experience, disturbing dreams of the stressful experience, feeling upset when
something reminded him of the stressful experience, having physical reactions
when something reminded him of the stressful experience, avoiding thinking
about or talking about the stressful experience, avoiding activities or situations
that reminded him of the stressful experience, loss of interest in activities he used
to enjoy, feeling distant or cut off from other people, trouble falling or staying
asleep, difficulty concentrating, feeling jumpy or easily startled, and being
“superalert” or watchful or on guard.
Remand for Consideration of Evidence Regarding
Respondent’s Health Conditions
{¶ 51} As noted by the majority opinion, in March 2010, this court
ordered that this matter be remanded to the Board of Commissioners on
Grievances and Discipline for consideration of evidence to be submitted by the
parties regarding respondent’s health conditions. On remand, the examining
psychiatrist, Douglas Beech, M.D., issued a four-and-a-half-page report based on
his one-hour-and-forty-five-minute interview with and examination of respondent.
Based on available data and on a current psychiatric evaluation, as stated in his
November 8, 2010 report, Dr. Beech diagnosed respondent with major depressive
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disorder, recurrent, in remission, and PTSD, chronic, in partial remission. In
addition, Dr. Beech diagnosed TBI and trauma-related neuropathy.
{¶ 52} Although Dr. Beech noted in his report that he had been retained to
evaluate respondent’s mental health, he devoted very little of his report to
addressing respondent’s TBI. In fact, in the four-and-a-half-page report, he
acknowledged TBI in only three sentences, including the following:
“Additionally, Mr. Minamyer was evaluated last year at the VA medical center
and diagnosed as having some residual cognitive deficits attributable to a
traumatic brain injury. He has been engaged in treatment and rehabilitation there
to better define his cognitive deficits and maximize his strengths.” Dr. Beech
performed no meaningful analysis of the effects of TBI on respondent’s practice.
{¶ 53} In fact, Dr. Beech concluded: “[A]lthough Mr. Minamyer does
have two significant mental disorders, his mental health difficulties likely played
only a modest role in the alleged misconduct in his handling of the [client] matter.
To whatever degree he was neglectful of his duties in the case, his conditions
likely played a contributory, but not a primary role. The most significant role
played by his conditions was his avoidance of responding to the complaint in a
timely manner.”
{¶ 54} Correspondingly, it appears that respondent’s lack of response to
the complaint in a timely manner was much of the focus of the June 28, 2010
hearing before the Board of Commissioners on Grievances and Discipline. Rather
than addressing how respondent’s health and mental-health diagnoses affected his
practice of law, the hearing seemed to focus more on the consternation of the
panel and the relator regarding respondent’s initial lack of participation in the
disciplinary process.
{¶ 55} Relator’s counsel asked, “Isn’t it fair to say also that you, through
your behavior, have obstructed our Bar Association from investigating these very
facts by failing to cooperate in the initial litigation and in the litigation after the
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remand?” When respondent noted that he was not trying to hide that he had
engaged in irresponsible behavior, but that the reason for that behavior was the
TBI and the PTSD, relator’s counsel asked: “And would you agree that the
consequences of that behavior was our inability to investigate the very things that
you’re talking about here today?” Respondent answered, “Well, that’s true, but
that’s kind of circular. Because the mental condition, itself, is the cause of the
problem being able to investigate the mental condition.”
{¶ 56} The transcript records the ensuing exchange:
{¶ 57} “Q [relator’s counsel]. * * * Would you agree with me that your
failure to participate in the initial litigation in the Supreme Court prevented us
from investigating the very things that you’re talking about here today?
{¶ 58} “A [respondent]. No, because I offered to give you a release at our
last meeting, and you never asked for it.
{¶ 59} “Q. Okay.
{¶ 60} “A. And I gave you all the medical records that I had up till that
point. So even if, you know, you had everything that was available at the time,
and I had offered to give you access to everything I’ve—every medical record
I’ve ever had.
{¶ 61} “Q. So says you. But, again, you’re a lawyer, so you know we
have an adversarial system, right?
{¶ 62} “A. Are you denying it, that I said that to you in the Supreme
Court room?
{¶ 63} “Q. I’m asking questions, and I’m asking for your answers.
{¶ 64} “A. Well, but you’re asking a question that assumes something
that’s not really true, and you know it.
{¶ 65} “Q. You provided us stuff, but have we been able to dig in and do
our own investigation? Have we been able to do that?
{¶ 66} “A. You could have.
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{¶ 67} “Q. Okay.”
{¶ 68} The panel’s and board’s further irritation with respondent’s lack of
involvement with the disciplinary process is indicated by relator’s response to
respondent’s response to the show-cause order: “He minimizes his conduct and
refuses to take responsibility for his actions. The language in the December 18,
2009 Findings of Fact, Conclusions of Law and Recommendation by the hearing
panel is on target: ‘The panel found Respondent unwilling to take responsibility
for his conduct. Respondent had an excuse for everything, and his attitude seemed
to be “to deny all wrongdoing, but if you don't believe me, then I suffer from a
mental disability that accounts for my actions.”‘ ”
{¶ 69} In my view, respondent’s mental-health issues were not fully and
thoroughly considered initially or on remand.
Conclusion
{¶ 70} In the words of an injured veteran, “ ‘The war is done for me now.
The days of standing in the hot desert sun, setting up ambushes on the sides of
mountains and washing the blood from my friend’s gear are over. The battles
with bombs, bullets, and blood are a thing of the past. I still constantly fight a
battle that rages inside my head.’ Brian McGough, a 32-year-old Army staff
sergeant whose convoy was attacked with IEDs in 2006. From his blog ‘Inside
My Broken Skull.’ ” Invisible Wounds at 8.
{¶ 71} The intent of this court in remanding this case was for
consideration of evidence to be submitted by the parties regarding respondent’s
health conditions. Dr. Beech’s scant treatment of the issue in his letter to the
Board of Commissioners on Grievances and Discipline is not helpful to our
decision-making but is illustrative of what is often the medical community’s
inadequate treatment of these issues. The psychiatrist’s report and the findings of
the board show a clear lack of understanding and appreciation of the effects of
PTSD/TBI on respondent’s behavior. Indeed, his failure to deal with the charges
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is interpreted as deliberate, when in fact it is one of the very symptoms of his
injuries. I write in the hopes of bringing a greater understanding to the judicial
system of these relatively new issues that we will continue to confront as more
veterans return from war with these injuries.
{¶ 72} I believe that the examining psychiatrist failed in his duty to
adequately address the effects of respondent’s PTSD/TBI on his fitness to practice
law and that the board failed to understand and appreciate the effects of PTSD and
TBI on respondent’s behavior and his ability to cope.
{¶ 73} Respondent has taken action to treat his injuries. He has been
undergoing treatment through the Department of Veterans Affairs for his visible
and nonvisible injuries. He has been working on his gait. He has been working
with a speech therapist at the VA. In addition, because he had been having
difficulty putting sentences together, he went back to school to rehabilitate his
mental processes. In his law office, he has cut back on the time he spends at his
practice, has not taken on new clients, and has his daughter assist him in law-
office management.
{¶ 74} Because the human brain is so complicated, it is extremely difficult
to predict the long-term effects of any TBI. Most cases of mild TBI will resolve
over time with minimal problems. In the case of more serious TBIs, a person can
experience any number of changes over the course of months and years.
http://www.brainline.org/content/2008/08/frequently-asked-questions.html.
{¶ 75} “A number of factors, including Glasgow coma scale (GCS) score,
age, pupillary response and size, hypoxia, hyperthermia, and high intracranial
pressure, may play an important role in predicting the outcome of traumatic brain
injury. Eight hundred forty-six cases of severe traumatic brain injury (GCS≤8)
were analyzed retrospectively to clarify the effects of multiple factors on the
prognosis of patients. At 1 year after injury, the outcomes in these cases were as
follows: good recovery, 31.56%; moderate disability, 14.07%; severe disability
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24.35%; vegetative status, 0.59%; and death, 29.43%.” Ji-Yao Jiang, Guo-Yi
Gao, Wei-Ping Li, Ming-Kun Yu, and Cheng Zhu, Early Indicators of Prognosis
in 846 Cases of Severe Traumatic Brain Injury (July 2002), 19 Journal of
Neurotrauma 869, abstract available at http://www.liebertonline.com/doi
/abs/10.1089/ 08977150260190456.
{¶ 76} With proper treatment, such as that which respondent has been
seeking, people with PTSD/TBI can improve the way their brain functions, and
they can often reclaim the portions of their lives that were affected by their
injuries.
{¶ 77} This is respondent’s first disciplinary action in an otherwise
unblemished 30-year legal career. Based on the facts of this case, the single
incident of misconduct and the extensive mental-health mitigation, I concur in the
majority’s decision to suspend respondent from the practice of law for one year
with the entire suspension stayed on conditions. Further, because respondent has
been actively engaged in treatment and because we can monitor his progress
through a stayed suspension, I concur in the monitored-probation portion of the
sanction but would hope that the monitoring of his compliance is done with a full
appreciation and understanding of his wounds of war.
__________________
Bennett A. Manning and Christopher J. Pagan, for relator.
William Eric Minamyer, pro se.
______________________
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