Disciplinary Counsel v. Hoppel

[Cite as Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53, 2011-Ohio-2672.]

DISCIPLINARY COUNSEL v. HOPPEL.

[Cite as Disciplinary Counsel v. Hoppel, 129 Ohio St.3d 53, 2011-Ohio-2672.]

Attorneys at law — Misconduct — Multiple disciplinary violations — Two-year

suspension, partially stayed.

(No. 2010-1805 — Submitted February 2, 2011 — Decided June 8, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-068.

__________________

Per Curiam.

{¶ 1} Respondent, Richard Vincent Hoppel of East Liverpool, Ohio,

Attorney Registration No. 0063000, was admitted to the practice of law in Ohio in

1994.

{¶ 2} In August 2009, relator, Disciplinary Counsel, filed a complaint

charging respondent with more than 80 violations of the Rules of Professional

Conduct after he accepted attorney fees to represent multiple clients in bankruptcy

proceedings and then failed to perform the work. At the hearing, the relator

dismissed two of the alleged violations. Based upon findings that respondent

committed all of the remaining charged violations and that his cocaine addiction

contributed to his misconduct, the panel and board recommend that we

indefinitely suspend respondent from the practice of law in Ohio.

{¶ 3} Respondent has accepted the board’s findings of fact and

misconduct, but objects to the recommended sanction. We granted him leave to

supplement the record with mitigating evidence demonstrating that since the

board issued its report, he has made restitution to each of the clients identified in

relator’s complaint.

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{¶ 4} In light of respondent’s successful completion of inpatient

treatment for his addiction, his more than two years of sustained sobriety, and his

payment of restitution to each of the clients harmed by his misconduct, we reject

the board’s recommended sanction and impose a two-year suspension, with 18

months stayed on conditions.

Misconduct

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

Discipline accepted the parties’ agreed stipulations of fact, as well as respondent’s

stipulation to 30 of the alleged violations of the Rules of Professional Conduct. It

also received 52 stipulated exhibits, including a transcript of respondent’s

deposition testimony. At the hearing, the panel heard respondent’s testimony and

received 17 additional exhibits submitted by respondent. This evidence

demonstrates that respondent accepted retainers and deposits for court costs

totaling over $14,000 for 14 separate client matters and converted them to his own

use to buy cocaine. He repeatedly failed to perform work on behalf of his clients

and failed to appear at court hearings. Respondent was found in contempt of

court, and the judge suspended his fine and court costs conditioned on his good

behavior. When he missed two additional hearings, the judge sentenced him to

two consecutive 60-day jail terms. Respondent served 13 days of that sentence

before it was suspended on the condition that he immediately report for inpatient

drug rehabilitation.

{¶ 6} Respondent also failed to respond to his client’s attempts to contact

him, failed to keep clients reasonably informed about the status of their matters,

and failed to reasonably consult with one client about the means necessary to

achieve her objectives. He collected excessive and unreasonable fees, as

demonstrated by his collection and retention of attorney fees and corresponding

failure to perform the clients’ work. He engaged in dishonesty, deceit, and

misrepresentation, seeking leave of court to pay filing fees in installments when

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he had already collected the full filing fee from his clients. And having spent his

client’s funds on drugs, he falsely advised them that he needed more time to

prepare their bankruptcy petitions for filing.

{¶ 7} Based upon these facts, the panel found that respondent had

committed each of the charged violations. Thus, the panel found that respondent

had committed three violations of Prof.Cond.R. 1.1 (requiring a lawyer to provide

competent representation to a client), 14 violations of Prof.Cond.R. 1.3 (requiring

a lawyer to act with reasonable diligence in representing a client), one violation of

Prof.Cond.R. 1.4(a)(1) (requiring a lawyer to inform the client of any decision or

circumstance with respect to which the client’s informed consent is required), one

violation of Prof.Cond.R. 1.4(a)(2) (requiring a lawyer to reasonably consult with

the client about the means by which the client’s objectives are to be

accomplished), ten violations of Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to

keep the client reasonably informed about the status of a matter), 13 violations of

Prof.Cond.R. 1.5 (prohibiting a lawyer from making an agreement for, charging,

or collecting an illegal or clearly excessive fee), three violations of Prof.Cond.R.

3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact

or law to a tribunal), 14 violations of Prof.Cond.R. 8.4(c) (prohibiting a lawyer

from engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation), six violations of Prof.Cond.R. 8.4(d) (prohibiting a lawyer

from engaging in conduct that is prejudicial to the administration of justice), and

15 violations of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in

conduct that adversely reflects on the lawyer’s fitness to practice law).

{¶ 8} The board adopted these findings of fact and misconduct, and so

do we.

Sanction

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

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

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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.

{¶ 10} As mitigating factors, the parties stipulated and the board found

that respondent had no prior disciplinary record, had made full and free disclosure

to the board, and had displayed a cooperative attitude toward these disciplinary

proceedings. See BCGD Proc.Reg. 10(B)(2)(a) and (d). The board also found

that respondent’s cocaine addiction qualified as a mitigating factor pursuant to

BCGD Proc.Reg. 10(B)(2)(g). In doing so, the board relied upon the testimony of

Paul A. Caimi, a regional director of the Ohio Lawyers Assistance Program

(“OLAP”). He testified that at the time of the hearing, respondent, a crack-

cocaine addict, was in remission and had been sober since October 23, 2008, as

verified through random drug and alcohol testing. Respondent has successfully

completed an inpatient treatment program at the Keating Center, as well as

outpatient, aftercare, and family-services programs. He has also complied with

his OLAP contract, which was to expire on May 11, 2011.1

{¶ 11} Caimi testified that in his professional opinion, respondent’s

addiction to cocaine contributed to his misconduct, all of which occurred while he

was using cocaine. He stated that respondent’s prognosis is good and that he

1. On May 16, 2011, respondent moved this court to supplement the record with evidence that he

has extended his contract with OLAP until May 11, 2013. Relator moved to strike that motion on

May 19, 2011. Because S.Ct.Prac.R. 9.9 prohibits a party from filing additional briefs or other

materials relating to the merits of the case after it has been orally argued unless ordered by the

court, with the exception of a citation to relevant authority issued after oral argument, we grant

relator’s motion to strike respondent’s motion to supplement the record.

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could competently practice law as long as he continues to follow his recovery

program.

{¶ 12} The parties did not stipulate to any aggravating factors, but the

board found that respondent had acted with a dishonest or selfish motive, had

engaged in a pattern of misconduct involving multiple offenses, had caused harm

to vulnerable victims, and had failed to make restitution. See BCGD Proc.Reg.

10(B)(1)(b), (c), (d), and (i).

{¶ 13} The board observed that the cases relator cited in support of its

recommended sanction of an indefinite suspension are distinguishable from this

case because some of them involved the aggravating factor of failure to cooperate

in the disciplinary investigation and none of them involved the mitigating factor

of drug dependency. Columbus Bar Assn. v. Chasser, 124 Ohio St.3d 578, 2010-

Ohio-956, 925 N.E.2d 595, ¶ 21; Cleveland Metro. Bar Assn. v. Gottehrer, 124

Ohio St.3d 519, 2010-Ohio-929, 924 N.E.2d 825, ¶ 15; Cincinnati Bar Assn. v.

Deaton, 102 Ohio St.3d 19, 2004-Ohio-1587, 806 N.E.2d 503, ¶ 31; and

Columbus Bar Assn. v. Kiesling, 125 Ohio St.3d 36, 2010-Ohio-1555, 925 N.E.2d

970, ¶ 45. Nonetheless, the panel and board recommend that we indefinitely

suspend respondent from the practice of law in Ohio. The board also

recommends that we order respondent to pay restitution to the clients harmed by

his conduct.

{¶ 14} Respondent objects to the board’s recommended sanction, arguing

that the panel and board did not have information regarding his payment of

restitution to all of the clients named in relator’s complaint and failed to consider

certain evidence of his good character. Based upon these additional mitigating

factors and the sanctions imposed by this court in seven cases cited by respondent,

he argues that a two-year suspension with 18 months stayed on conditions is the

appropriate sanction for his misconduct.

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{¶ 15} At the time of the panel hearing, respondent had not made

restitution to the clients harmed by his misconduct and did not have the financial

means to do so. On January 19, 2011, however, we granted respondent’s motion

to supplement the record with evidence that he had made full restitution to each of

the clients identified in relator’s complaint. Respondent personally delivered

checks and letters of apology to 11 of those clients. The three remaining clients

received their checks and respondent’s apology by mail.

{¶ 16} Although respondent submitted five letters attesting to his good

character apart from the events at issue here, his treatment for drug addiction, and

his continued sobriety, the panel and board reports do not specify whether they

were afforded any mitigating effect. Because this court is the final arbiter of the

facts and conclusions of law in disciplinary proceedings, see, e.g. Ohio State Bar

Assn. v. Reid (1999), 85 Ohio St.3d 327, 708 N.E.2d 193, at paragraph one of the

syllabus, respondent has not suffered any prejudice as a result of this alleged

oversight.

{¶ 17} Respondent has submitted letters from two judges, an attorney who

considered respondent to have been a mentor, an attorney who served as

respondent’s cosponsor during his rehabilitation and recovery, and a licensed

independent chemical-dependency counselor. The two judges wrote that they

have known respondent throughout his legal career and have observed his

competent, ethical, and professional practice of law, his decline into substance

abuse, and his subsequent rehabilitation. Having observed the best and worst of

respondent’s professional career, these judges support respondent’s efforts to

return to the practice of law and state that they would welcome him in their

courtrooms. And the attorney who considered respondent to have been his

mentor has known him to be “approachable, courteous, and respectful to his

colleagues and clients.” He expressed his view that the actions giving rise to this

disciplinary action were “totally out of character” for respondent and expressed

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his belief that “[s]omething was affecting his good judgment and personality.”

These letters, although limited in number, offer credible evidence of respondent’s

good character when he is not using cocaine.

{¶ 18} The remaining letters state that respondent has completed a term of

inpatient treatment for his drug addiction, that he has made progress, and that he

has made a commitment to his sobriety. And although they may have been

considered as evidence that respondent has completed a course of drug

rehabilitation, they nonetheless offer some limited evidence of his character and

commitment to staying sober.

{¶ 19} Although we have accepted evidence that respondent has made

restitution to those clients harmed by his drug addiction and attribute some

mitigating value to his character evidence, we reject the parties’ stipulation,

respondent’s testimony, and the board’s finding that respondent has no prior

disciplinary record. This court’s publicly available online attorney directory

shows that this court briefly suspended respondent’s license to practice law on

December 3, 2007, for failing to comply with attorney-registration rules. See In

re Attorney Registration Suspension of Hoppel, 116 Ohio St.3d 1420, 2007-Ohio-

6463, 877 N.E.2d 305; In re Reinstatement of Hoppel, 116 Ohio St.3d 1498,

2008-Ohio-290, 880 N.E.2d 97. Though this registration suspension occurred

during the height of respondent’s drug addiction, it is, nonetheless, an aggravating

factor pursuant to BCGD Proc.Reg. 10(B)(1)(a). See, e.g., Columbus Bar Assn. v.

Larkin, 128 Ohio St.3d 368, 2011-Ohio-762, 944 N.E.2d 669, ¶ 9; Disciplinary

Counsel v. Mitchell, 124 Ohio St.3d 266, 2010-Ohio-135, 921 N.E.2d 634, ¶ 8;

and Akron Bar Assn. v. Paulson, 112 Ohio St.3d 334, 2006-Ohio-6678, 859

N.E.2d 932, ¶ 12 (all recognizing attorney-registration violations as prior

disciplinary offenses pursuant to BCGD Proc.Reg. 10(B)(1)(a)).

{¶ 20} We have acknowledged that the presumptive sanction for the

misappropriation of client funds is disbarment. Lorain Cty. Bar Assn. v.

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Fernandez, 99 Ohio St.3d 426, 2003-Ohio-4078, 793 N.E.2d 434, ¶ 9. A

presumption in favor of permanent disbarment, however, may be rebutted. See,

e.g., Cincinnati Bar Assn. v. Kellogg, 126 Ohio St.3d 360, 2010-Ohio-3285, 933

N.E.2d 1085, ¶ 18, quoting Disciplinary Counsel v. Smith, 101 Ohio St.3d 27,

2003-Ohio-6623, 800 N.E.2d 1129, ¶ 9 (“ ‘Absent any mitigating factors,

disbarment is the appropriate sanction for an attorney’s misappropriation of client

funds’ ”); Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005-Ohio-5411,

835 N.E.2d 707, ¶ 42 (Moyer, C.J., dissenting) (“by definition, a presumptive

sanction of disbarment does not preclude the application of mitigation. That is,

the presumption in favor of disbarment in the case of theft from clients is a

rebuttable one”).

{¶ 21} The primary purpose of the disciplinary sanctions 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. “Thus, even

in cases of egregious misconduct and illegal drug use, we have decided against

permanent disbarment based on the lawyer’s probable recovery from the drug

addiction that caused the ethical breaches.” Cincinnati Bar Assn. v. Lawson, 119

Ohio St.3d 58, 2008-Ohio-3340, 891 N.E.2d 749, ¶ 73, citing Disciplinary

Counsel v. Garrity, 98 Ohio St.3d 317, 2003-Ohio-740, 784 N.E.2d 691, ¶ 12

(lawyer and former pharmacist convicted of stealing prescription drugs suspended

indefinitely after showing renewed dedication to his treatment for his addiction).

When an attorney’s misconduct is motivated by an addiction to drugs or alcohol,

and we believe that the attorney is committed to recovery and no longer poses a

threat to the public or the judicial system, we tailor the sanction to assist and

monitor the attorney’s recovery. Disciplinary Counsel v. Connor, 105 Ohio St.3d

100, 2004-Ohio-6902, 822 N.E.2d 1235, ¶ 19.

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{¶ 22} In this case, the evidence demonstrates that respondent was a

conscientious, capable, and professional attorney until his judgment was clouded

by his drug addiction. He has successfully completed a 90-day inpatient

treatment program for his drug addiction, has complied with all of the terms of his

OLAP contract, including his regular attendance at Alcoholics Anonymous

meetings and compliance with random drug and alcohol screenings, and has

expressed his willingness to extend his OLAP contract for the rest of his

professional career if necessary. At the time of the panel hearing in May 2010, he

had been sober for a year and a half. And since the board issued its opinion, he

has made restitution to each of the clients identified in relator’s complaint,

delivering their refunds and a sincere letter of apology to many of them in person.

{¶ 23} Of the cases cited by respondent in his objections, we find

Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005-Ohio-6045, 837 N.E.2d

369, to be most instructive. Greco had accepted retainers from numerous clients,

neglected their cases, and lied to his clients to conceal his neglect and was slow to

comply with their requests for refunds of their retainers and unearned fees. Id. at

¶ 56. Like the respondent in this case, Greco’s misconduct emanated from a

diagnosed chemical dependency, for which Greco had successfully completed

several treatment programs. Id. at ¶ 46-52. Greco was extremely cooperative and

forthcoming throughout the disciplinary process and expressed sincere remorse

for his conduct, id. at ¶ 52, but he had not made full restitution to his affected

clients, id. at ¶ 56. Based upon these facts, we concluded that an actual

suspension was necessary to protect the public. Therefore, we suspended Greco

from the practice of law for two years, with 18 months stayed on the conditions

that he comply with his OLAP contract and serve monitored probation in

accordance with Gov.Bar R. V(9) during the stayed portion of the suspension. Id.

at ¶ 57.

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{¶ 24} We also imposed two-year suspensions with 18 months

conditionally stayed based upon comparable misconduct emanating from

substance abuse in Toledo Bar Assn. v. Shousher, 112 Ohio St.3d 533, 2007-

Ohio-611, 861 N.E.2d 536; and Cincinnati Bar Assn. v. Washington, 109 Ohio

St.3d 308, 2006-Ohio-2423, 847 N.E.2d 435.

{¶ 25} Based upon the foregoing, we sustain respondent’s objection to the

board’s report and agree that a two-year suspension, with 18 months stayed on

conditions, is the appropriate sanction for respondent’s misconduct.

{¶ 26} Accordingly, Richard Vincent Hoppel is hereby suspended from

the practice of law in Ohio for two years. The final 18 months of that suspension,

however, shall be stayed on the conditions that he extend his OLAP contract for

two years from the date of this opinion, maintain full compliance with that

contract, and commit no further misconduct. If he fails to comply with these

conditions, the stay will be lifted, and he will serve the full two-year suspension.

Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Heather L. Hissom,

Assistant Disciplinary Counsel, for relator.

DePietro Law Office, L.L.C., and Harry J. DePietro, for respondent.

______________________

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