Disciplinary Counsel v. Rathburn

[Cite as Disciplinary Counsel v. Rathburn, 126 Ohio St.3d 502, 2010-Ohio-4467.]

DISCIPLINARY COUNSEL v. RATHBURN.

[Cite as Disciplinary Counsel v. Rathburn,

126 Ohio St.3d 502, 2010-Ohio-4467.]

Attorneys — Misconduct — Consent to discipline — Two-year license suspension

stayed on conditions.

(No. 2010-0661 — Submitted June 9, 2010 — Decided September 28, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-101.

__________________

Per Curiam.

{¶ 1} Respondent, Dennis A. Rathburn of Ashville, Ohio, Attorney

Registration No. 0055233, was admitted to the practice of law in Ohio in 1991.

After respondent was charged with two felonies for presenting an altered

prescription for Roxicodone to a pharmacy, relator, Disciplinary Counsel, charged

him with engaging in conduct involving dishonesty, fraud, deceit, or

misrepresentation and engaging in conduct that adversely reflects on his fitness to

practice law. A panel of the Board of Commissioners on Grievance and

Discipline considered the cause on the parties’ consent-to-discipline agreement.

See Section 11 of the Rules and Regulations Governing Procedure on Complaints

and Hearings Before the Board of Commissioners on Grievances and Discipline

(“BCGD Proc.Reg.”). The panel and board recommend that we accept the

agreement, including the agreed stipulations of fact and misconduct and

recommended sanction of a two-year suspension stayed on conditions. We adopt

these findings of fact and misconduct and the recommended sanction.

Misconduct

SUPREME COURT OF OHIO

{¶ 2} The stipulated facts show that respondent had suffered from severe

chronic back pain and a severe right knee injury for many years. From June 2003

through May 2009, a treating physician prescribed increasing doses of narcotic

pain medication to treat this pain.

{¶ 3} After presenting an altered prescription for Roxicodone to a

pharmacy, respondent was charged in a two-count bill of information with

deception to obtain a dangerous drug in violation of R.C. 2925.22(A) and illegal

processing of drug documents in violation of R.C. 2925.23(B)(1), both fourth-

degree felonies. The next day, respondent moved for intervention in lieu of

conviction and pleaded guilty to both charges. On Sept. 21, 2009, the trial court

determined that respondent was eligible for intervention in lieu of conviction and

sentenced him to three years of intervention and 40 hours of community service.

Respondent completed inpatient treatment at Talbot Hall, a drug-and-alcohol

treatment facility at Ohio State University Hospital East, from June 12 through

June 17, 2009, followed by an intensive outpatient program from June 18 through

August 3, 2009.

{¶ 4} The parties have stipulated, and the panel and board have found,

that respondent’s conduct violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and

8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on

the lawyer’s fitness to practice law).

Sanction

{¶ 5} In recommending a sanction, the panel and board considered the

aggravating and mitigating factors listed in BCGD Proc.Reg. 10. Consistent with

the parties’ stipulations, they found the following factors mitigating in favor of a

lesser sanction: (1) no prior disciplinary record, (2) full and free disclosure during

relator’s investigation and a cooperative attitude toward the disciplinary

proceedings, (3) the imposition of other penalties or sanctions, and (4) the

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January Term, 2010

diagnosis of a chemical dependency that contributed to respondent’s misconduct,

his successful completion of an approved treatment program, and the prognosis

that he will be able to return to the competent, ethical practice of law. See BCGD

Proc.Reg. 10(B)(2)(a), (d), (f), and (g). There is no evidence of aggravating

factors. See BCGD Proc.Reg. 10(B)(1).

{¶ 6} Both the panel and the board accepted the parties’ consent-to-

discipline agreement, including the finding of misconduct and recommended

sanction. We agree that respondent violated Prof.Cond.R. 8.4 (c) and 8.4(h) and

that consistent with the parties’ agreement, this conduct warrants a two-year

suspension, all stayed on the conditions that he (1) remain alcohol- and drug-free,

(2) enter into a two-year contract with the Ohio Lawyers Assistance Program and

comply with the terms of that contract, (3) attend, at a minimum, a weekly

meeting of Alcoholics Anonymous or Narcotics Anonymous, and (4) comply with

the terms of his court-supervised intervention.

{¶ 7} In Disciplinary Counsel v. Wolf, 110 Ohio St.3d 411, 2006-Ohio-

4709, 853 N.E.2d 1169, we imposed a similar sanction for violations of the

corresponding provisions of the Code of Professional Responsibility1 arising from

the attorney’s conviction on two counts of procuring dangerous prescription drugs

by deception in violation of R.C. 2925.22(A).

{¶ 8} On the recommendation of the panel and board, we accept the

consent-to-discipline agreement. Accordingly, respondent is hereby suspended

from the practice of law in Ohio for two years, with the suspension stayed on the

conditions that he (1) remain alcohol- and drug-free, (2) enter into a two-year

contract with the Ohio Lawyers Assistance Program and comply with the terms of

that contract, (3) attend, at a minimum, a weekly meeting of Alcoholics

1. DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation) and 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that

adversely reflects upon the lawyer’s fitness to practice law).

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SUPREME COURT OF OHIO

Anonymous or Narcotics Anonymous, and (4) comply with all terms of his court-

supervised intervention. If respondent fails to meet these conditions, the stay of

his suspension will be lifted, and respondent will serve the entire two-year

suspension from the practice of law. 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 Stacy Solochek

Beckman, Assistant Disciplinary Counsel, for relator.

Robert Erney, for respondent.

______________________

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