Columbus Bar Assn. v. Larkin

[Cite as Columbus Bar Assn. v. Larkin, 128 Ohio St.3d 368, 2011-Ohio-762.]

COLUMBUS BAR ASSOCIATION. v. LARKIN.

[Cite as Columbus Bar Assn. v. Larkin, 128 Ohio St.3d 368, 2011-Ohio-762.]

Attorney misconduct, including commission of an illegal act that reflects

adversely on the lawyer’s honesty or trustworthiness — Indefinite license

suspension.

(No. 2010-1840 — Submitted January 4, 2011 — Decided February 23, 2011.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-097.

__________________

Per Curiam.

{¶ 1} Respondent, Janet L. Larkin of Columbus, Ohio, Attorney

Registration No. 0073610, was admitted to the practice of law in Ohio in 2001.

We suspended respondent’s license in November 2009 for her failure to register

for the 2009/2011 attorney-registration biennium. In re Attorney Registration

Suspension of Larkin, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915 N.E.2d 1256.

In December 2009, relator, Columbus Bar Association, filed a complaint charging

her with violations of the Ohio Rules of Professional Conduct arising from her

alcohol and drug addiction and her indictment for possession of heroin and

cocaine. During the pendency of this action, she has also been sanctioned and

suspended for failing to comply with the continuing-legal-education requirements

set forth in Gov.Bar R. X(3). In re Continuing Legal Edn. Suspension of Larkin,

127 Ohio St.3d 1467, 2010-Ohio-6302, 938 N.E.2d 368.

{¶ 2} Although relator’s complaint was served by certified mail on

December 8, 2009, at the address respondent has registered with the Office of

Attorney Services, she failed to file an answer. Relator filed a motion for default

SUPREME COURT OF OHIO

supported by documentary evidence, including the transcript of respondent’s

August 2009 deposition.

{¶ 3} A master commissioner appointed by the board considered the

motion for default and prepared a report recommending that respondent be

indefinitely suspended. The board adopted the master commissioner’s findings

that the materials offered in support of the default motion were sufficient and that

respondent’s conduct had violated the ethical duties incumbent upon Ohio

lawyers.

{¶ 4} In accordance with the master commissioner’s report, the board

recommends that we indefinitely suspend respondent from the practice of law and

condition her reinstatement upon submission of proof that she has successfully

completed treatment for her substance abuse and is capable of returning to the

competent, ethical, and professional practice of law. We accept the board’s

findings of fact and misconduct and agree that an indefinite suspension is the

appropriate sanction.

Misconduct

{¶ 5} On January 3, 2009, respondent was seriously injured in an

automobile accident. While investigating the accident, Columbus police officers

discovered a used crack-cocaine pipe and used heroin syringes in respondent’s

automobile. In February 2009, a Franklin County grand jury indicted respondent

on one count of possession of heroin and one count of possession of cocaine, both

in violation of R.C. 2925.11. Respondent entered a diversion program that

required her to attend drug and alcohol counseling, to undergo drug screening,

and to abstain from using drugs and alcohol. But when respondent failed to

comply with the terms of the program, the trial judge returned her criminal case to

the court’s active docket.

{¶ 6} At her deposition, respondent testified that she has a long-standing

problem with drugs and alcohol and that the treatment she has received for this

2

January Term, 2011

problem has been unsuccessful. She admitted that at the time of her automobile

accident, she possessed drug paraphernalia that contained residue of heroin and

cocaine. She further testified that she had been on her way to see the person who

had encouraged her to use illegal drugs. Although relator urged respondent to

contact the Ohio Lawyers Assistance Program (“OLAP”) during the course of

these proceedings, she has had no contact with that program since August 2007.

Moreover, respondent’s participation in the disciplinary process was limited to

her attendance at her deposition and the submission of one letter and one e-mail to

relator.

{¶ 7} The master commissioner and board found, and we agree, that this

evidence clearly and convincingly establishes respondent’s violation of

Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that

reflects adversely on the lawyer’s honesty or trustworthiness) and (h) (prohibiting

a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness

to practice law).

Sanction

{¶ 8} 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.

{¶ 9} As aggravating factors, the master commissioner and board found,

and we agree, that respondent had engaged in a pattern of misconduct involving

multiple offenses and failed to cooperate in the disciplinary process after her

3

SUPREME COURT OF OHIO

deposition. BCGD Proc.Reg. 10(B)(1)(c), (d), and (e). We also find that

respondent has a prior disciplinary record for failure to comply with attorney-

registration requirements. BCGD Proc.Reg. 10(B)(1)(a). See also 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 (both holding that attorney-registration violations are prior

disciplinary offenses pursuant to BCGD Proc.Reg. 10(B)(1)(a)). But we reject the

master commissioner’s and board’s findings that the imposition of other penalties

or sanctions is a mitigating factor, because the record contains no evidence that

any other penalty or sanction has been imposed.

{¶ 10} Relator has argued that an indefinite suspension from the practice

of law will adequately protect the public while leaving open the possibility that

with proper rehabilitation, respondent will one day be able to resume the practice

of law. Citing our imposition of indefinite suspensions in Disciplinary Counsel v.

Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-4091, 914 N.E.2d 443; Disciplinary

Counsel v. Wolanin, 121 Ohio St.3d 390, 2009-Ohio-1393, 904 N.E.2d 879; and

Disciplinary Counsel v. Young, 102 Ohio St.3d 113, 2004-Ohio-1809, 807 N.E.2d

317, the master commissioner and board accepted relator’s recommended

sanction. They observed that in each of those cases, there was evidence of mental

illness or substance abuse but that the condition had not qualified as a mitigating

factor, because the respondents had failed to submit evidence that the condition

had contributed to their misconduct, that the condition had been successfully

treated, and that they were capable of returning to the competent, ethical, and

professional practice of law. See BCGD 10(B)(2)(g)(i) through (iv); Ridenbaugh

at ¶ 24-40; Wolanin at ¶ 12; Young at ¶ 12. Therefore, the master commissioner

and board adopted relator’s recommended sanction.

{¶ 11} Having reviewed the record, weighed the aggravating and

mitigating factors, and considered the sanctions imposed for comparable conduct,

4

January Term, 2011

we adopt the board’s recommended sanction of an indefinite suspension. As we

have previously recognized, our duty is not only to protect the public from

attorneys who are not ethically fit to practice law, but also to “take care not to

deprive the public of attorneys who, through rehabilitation, may be able to

ethically and competently serve in a professional capacity.” Young at ¶ 15, citing

Ohio State Bar Assn. v. Johnson, 96 Ohio St.3d 192, 2002-Ohio-3998, 772 N.E.2d

1184, at ¶ 7.

{¶ 12} Accordingly, Janet L. Larkin is indefinitely suspended from the

practice of law in the state of Ohio, and reinstatement shall be conditioned upon

proof that she has successfully completed treatment for substance abuse and is

capable of returning to the competent, ethical, and professional practice of law.

Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

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

and Margaret L. Blackmore, for relator.

______________________

5