Disciplinary Counsel v. Zapor

[Cite as Disciplinary Counsel v. Zapor, 127 Ohio St.3d 372, 2010-Ohio-5769.]

DISCIPLINARY COUNSEL v. ZAPOR.

[Cite as Disciplinary Counsel v. Zapor, 127 Ohio St.3d 372, 2010-Ohio-5769.]

Attorneys — Misconduct — Indefinite license suspension.

(No. 2010-1234 — Submitted September 15, 2010 — Decided

December 2, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-043.

__________________

Per Curiam.

{¶ 1} Respondent, Jeffery Alan Zapor, last known business address in

Sylvania, Ohio, Attorney Registration No. 0079076, was admitted to the practice

of law in Ohio in 2005. In June 2009, relator, Disciplinary Counsel, filed a

complaint against respondent alleging that respondent had misappropriated funds

from a ward’s account while he was a court-appointed guardian. Respondent

answered. In December 2009, respondent was convicted of theft, a fifth-degree

felony, and we imposed an interim felony suspension on respondent in March

2010. In re Zapor, 124 Ohio St.3d 1499, 2010-Ohio-765, 922 N.E.2d 232. On

January 10, 2010, the disciplinary case was submitted on stipulations to the panel

of the Board of Commissioners on Grievances and Discipline, despite the panel’s

stated wish to assess respondent’s current psychological condition at a hearing.

Consistent with the stipulations, the panel recommended that respondent be

indefinitely suspended from the practice of law in Ohio. Because respondent

declined to attend a formal hearing, the panel also recommended that respondent

not be given any credit for the interim felony suspension we imposed. The board

accepted the recommendation, and neither party filed any objections. For the

reasons that follow, we accept the board’s findings of fact, conclusions of law,

and recommended sanction, albeit with conditions for reinstatement.

SUPREME COURT OF OHIO

Misconduct

{¶ 2} The parties stipulated to the following facts:

{¶ 3} In 2007, respondent was appointed by the Franklin County Probate

Court as guardian for a ward whose only assets were her Ohio Public Employees

Retirement System pension, Social Security benefits, and a house. For a year and

a half, respondent made unauthorized withdrawals from the ward’s account

totaling over $20,000. The thefts resulted in several account overdrafts. The

improperly withdrawn funds were used by respondent to pay his personal

expenses. In two accountings to the court, respondent falsely represented that he

had collected and deposited the ward’s Social Security checks into the account

and had not made any withdrawals in excess of the monthly withdrawal amount

that the court had authorized for the ward’s care.

{¶ 4} When the theft was discovered, respondent was indicted under R.C.

2913.02, a fifth-degree felony. Respondent pleaded guilty to the theft charge, and

the court ordered that he serve one year of community control, pay a fine, and

provide complete restitution.

{¶ 5} In addition to stipulating to certain facts and exhibits, respondent

stipulated to having violated the following Rules of Professional Conduct:

Prof.Cond.R. 1.3 (requiring reasonable diligence and promptness in representing a

client); 3.3(a)(1) (prohibiting making a false statement of fact to a tribunal), 8.4(b)

(prohibiting illegal activity that reflects adversely on the lawyer’s honesty or

trustworthiness), 8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit,

or misrepresentation), 8.4(d) (prohibiting conduct that is prejudicial to the

administration of justice), and 8.4(h) (prohibiting conduct that adversely reflects

on the lawyer’s fitness to practice law). The stipulations included a recommended

sanction of an indefinite suspension. The panel and the board adopted these

stipulated findings and conclusions of law, and we adopt the findings and

conclusions of the board.

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January Term, 2010

Sanction

{¶ 6} In determining the appropriate sanction for an attorney’s

misconduct, we consider all relevant factors, including the duties violated by the

lawyer 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. We also

consider the aggravating and mitigating factors listed under 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.”).

Cuyahoga Cty. Bar Assn. v. Poole, 120 Ohio St. 3d 361, 2008-Ohio-6203, 899

N.E.2d 950, ¶ 9. “Because each disciplinary case is unique, we are not limited to

the factors specified in the rule but may take into account ‘all relevant factors’ in

determining what sanction to impose. BCGD Proc.Reg. 10(B).” Dayton Bar

Assn. v. Schram, 122 Ohio St.3d 8, 2009-Ohio-1931, 907 N.E.2d 311, ¶ 8.

{¶ 7} The parties stipulated to several mitigating factors: (1) absence of

prior disciplinary record, (2) restitution, (3) cooperative attitude, and (4)

imposition of other penalties. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), and (f). No

aggravating factors were contained in the stipulations, but the board concluded

that the following factors were supported by the record: (1) dishonest or selfish

motive, (2) pattern of misconduct, and (3) multiple offenses. BCGD Proc.Reg.

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

{¶ 8} In considering the appropriate sanction, the board noted that

respondent testified at length in his deposition concerning his abuse of alcohol

and his gambling as well as his participation in an outpatient alcohol program and

Alcoholics Anonymous, even though the stipulations failed to address whether

respondent suffered from a chemical dependency or mental disability under

BCGD Proc.Reg. 10(B)(2)(g). That provision delineates that a chemical

dependency or mental disability may be mitigating if the requisite findings are

made. In its review of this matter, however, the board concluded that respondent

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SUPREME COURT OF OHIO

had not established a causal connection between his impairments and his

misconduct to satisfy this mitigating factor. Similarly, respondent has not

established that he has successfully completed a chemical-dependency or mental-

illness treatment program. Nor did the board find in the record a professional

prognosis that respondent would be able to return to the competent, professional,

and ethical practice of law under specified conditions.

{¶ 9} Moreover, the board observed that despite being encouraged by the

panel chair to present BCGD Proc.Reg. 10(B)(2)(g) mitigation testimony at a

formal hearing, respondent declined. Respondent also acknowledged that he is

not currently in compliance with his Ohio Lawyers Assistance Program

(“OLAP”) contract, which expires in November 2013.

{¶ 10} The board noted that disbarment is the presumptive sanction for

misappropriation. Disciplinary Counsel v. Hunter, 106 Ohio St.3d 418, 2005-

Ohio-5411, 835 N.E.2d 707, ¶ 37. Nevertheless, mitigating circumstances can

support the penalty of indefinite suspension. See, e.g., Columbus Bar Assn. v.

Thomas, 124 Ohio St.3d 498, 2010-Ohio-604, 924 N.E.2d 352, ¶ 29. In Thomas,

even though the court did not find any chemical-dependency or mental-illness

mitigation, the court adopted as a mitigating factor the panel’s conclusion that the

misconduct was “born more of financial necessity than greed.” Id. at ¶ 31. The

Thomas court further adopted the panel statement that despite the respondent’s

failure to make restitution, “the Panel does not believe that Respondent’s destitute

financial situation should result in a more severe punishment. This is

Respondent’s first offense; he was fully cooperative with the investigation and

prosecution of his case; and Respondent convinced the Panel that he was truly

sorry for his conduct. His will be a difficult journey back to reinstatement. Not

only will he have to support his family of six * * * without a law license, but he

will have to also garner sufficient funds to repay his client a rather substantial

amount of money plus accumulated interest.” Id. at ¶ 34.

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January Term, 2010

{¶ 11} In this case, the board stated that respondent had seemed genuinely

contrite and had confessed that he had misappropriated the funds because of

financial difficulties. Respondent’s testimony also suggested that he has taken

steps to resolve his substance-abuse and gambling problems, which he claims

played at least some role in his poor choices. With the assistance of his family,

respondent has made all the restitution ordered in the criminal case. However, the

board also stated that upon respondent’s request for reinstatement, he would need

to establish that he is fit to return to the practice of law and that he has controlled

his depression and substance-abuse and gambling problems.

{¶ 12} Based on the foregoing, we accept the board’s recommended

sanction and indefinitely suspend respondent from the practice of law, without

any credit for time served under the interim felony suspension. We modify the

board’s recommendation, however, in one respect. Before respondent may

petition for reinstatement, respondent must comply with the following conditions:

(1) extend his OLAP contract to run for two additional years from the current

expiration date, (2) abide by the obligations imposed upon him by his OLAP

contract, (3) continue his treatment and provide proof of that treatment and any

other medical information that may be requested by his OLAP contract monitor,

and (4) refrain from any disciplinary violations. Costs are taxed to respondent.

Judgment accordingly.

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

O’DONNELL, LANZINGER, and CUPP, JJ., concur.

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,

Assistant Disciplinary Counsel, for relator.

Jeffery Alan Zapor, pro se.

______________________

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