Disciplinary Counsel v. Niles

[Cite as Disciplinary Counsel v. Niles, 126 Ohio St.3d 23, 2010-Ohio-2517.]

DISCIPLINARY COUNSEL v. NILES.

[Cite as Disciplinary Counsel v. Niles, 126 Ohio St.3d 23, 2010-Ohio-2517.]

Attorneys — Misconduct — Interim felony suspension already imposed — Two-

year license suspension, all stayed on conditions.

(No. 2010-0034 — Submitted February 24, 2010 — Decided June 10, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 08-088.

__________________

Per Curiam.

{¶ 1} Respondent, Lisa Jane Niles of Springfield, Ohio, Attorney

Registration No. 0061134, was admitted to the practice of law in Ohio in 1993.

On August 13, 2008, this court imposed an interim felony suspension on

respondent’s license pursuant to Gov.Bar R. V(5)(A)(4). In re Niles, 119 Ohio

St.3d 1420, 2008-Ohio-4071, 891 N.E.2d 1187.

{¶ 2} On December 8, 2008, relator, Disciplinary Counsel, filed a

complaint alleging four violations of the Ohio Rules of Professional Conduct.

Respondent participated in the disciplinary investigation and stipulated to certain

facts and misconduct. The Board of Commissioners on Grievances and

Discipline now recommends that we suspend respondent’s license for two years,

all stayed, based upon findings that she engaged in theft in office and tampering

with records during her tenure as the Champaign County Municipal Court clerk.

We accept the board’s findings of misconduct and agree that a two-year

suspension, stayed upon conditions, is appropriate.

Misconduct

{¶ 3} In its complaint, relator charged respondent with violations of

Prof.Cond.R. 8.4(b) (prohibiting commission of an illegal act that reflects

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adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting conduct

involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting

conduct prejudicial to the administration of justice), and 8.4(h) (prohibiting

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

{¶ 4} The stipulated facts and testimony at the panel hearing demonstrate

that after graduating from law school and developing a general practice in

Springfield, Ohio, respondent suffered from a series of health problems. In 1997,

she broke her ankle and required orthopedic surgery. Due to pain from the injury,

her doctor prescribed painkillers, including Vicodin. Respondent later developed

depression and anxiety, for which her doctor prescribed Zoloft and Xanax. Then

in 2005, respondent had quadruple-bypass surgery. As a result of her poor health,

respondent was unable to work and closed her private practice.

{¶ 5} A local judge, who was aware of respondent’s work on behalf of

her clients as well as her health and financial difficulties, offered to appoint

respondent as the Champaign County Municipal Court clerk. Respondent was

sworn in on January 6, 2006.

{¶ 6} On two days in April 2007, respondent accepted and retained cash

payments of pending court fines from defendants. She concealed her thefts by

issuing paper receipts in lieu of the court’s standard computerized receipts and by

later destroying the office copies. Respondent testified that at the time of the

thefts, she was drinking daily and taking Vicodin, Zoloft, and Xanax. She also

testified that an “alcoholic bottom” had caused her to steal money from the court.

{¶ 7} When confronted about the thefts, respondent denied them. An

audit revealed that respondent had stolen $365.50. Respondent’s employment

was terminated, and she later pleaded guilty to charges of theft in office and

tampering with records. Respondent was convicted and was given a $400 fine;

she was sentenced to ten days in jail, three years of community control, and 100

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hours of community service. She was also ordered to pay restitution of

$5,483.60, representing the stolen $365.50 plus the cost of the audit.

{¶ 8} The panel and board found that respondent’s conduct violated

Prof.Cond.R. 8.4(c), 8.4(d), and 8.4(h). However, the parties stipulated, clear and

convincing evidence demonstrates, and we find, that respondent’s conduct also

violated Prof.Cond.R. 8.4(b).

Sanction

{¶ 9} In recommending a sanction for this misconduct, the board

considered the aggravating and mitigating features of respondent’s case and found

that the mitigating factors overwhelmingly outweighed the aggravating factors.

See 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.”).

{¶ 10} The parties stipulated and the board found the following factors in

mitigation: (1) absence of prior disciplinary record, (2) timely good-faith effort

to make restitution, (3) cooperative attitude toward the disciplinary proceedings,

(4) imposition of other penalties or sanctions, and (5) respondent’s chemical

dependency. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), (f), and (g).

{¶ 11} With regard to respondent’s chemical dependency, Stephanie

Krznarich, clinical director of the Ohio Lawyers Assistance Program (“OLAP”),

testified that respondent entered into an OLAP contract as of March 3, 2008, and

that she has fully complied with that contract. She stated that respondent was

diagnosed with both drug and alcohol addiction and that she completed a

treatment program at McKinley Hall, a drug and alcohol treatment center in

Springfield. She noted that although respondent could have been discharged from

her treatment program more than a year before her disciplinary hearing, she

voluntarily remains in an aftercare program. Noting that respondent continues to

participate in Alcoholics Anonymous and that she has been selected to handle the

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money for two separate 12-step programs, Krznarich testified that respondent can

return to the ethical and competent practice of law and that she will be an asset to

the legal community.

{¶ 12} Based upon the testimony of respondent and Krznarich, we

conclude that respondent’s chemical dependency qualifies as a mitigating factor

pursuant to BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv).

{¶ 13} Although the parties did not stipulate to any aggravating factors,

the board noted respondent’s initial denial of wrongdoing when confronted by her

employer. However, the board found that “her remorseful and courageous

admissions recounted at the hearing more than compensate for this single

aggravating element.”

{¶ 14} The parties have stipulated that a two-year suspension with the

second year stayed upon conditions is an appropriate sanction for respondent’s

conduct. But the board recommends that we suspend respondent from the

practice of law for two years, all stayed in light of the time served by respondent

during her interim suspension, subject to the following conditions:

{¶ 15} “1. Respondent must continue to abide by the terms and

conditions of her OLAP contract which does not expire until approximately

March 3, 2013. This compliance includes treatment or therapy prescribed by any

treating physician or counselor which OLAP considers important to Respondent’s

current and future good health.

{¶ 16} “2. In order to assure herself and protect the public against any

stress-induced further wrongdoing, Respondent shall comply with Gov.Bar R.

V(9) with regard to the appointment of a law practice monitor at the time she

resumes her practice of law. The Respondent shall continue to report to her

monitor during this period until the expiration of her contract with OLAP.

{¶ 17} “3. Failure to meet these conditions shall subject Respondent to a

two-year suspension.”

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{¶ 18} For similar conduct, we have previously imposed two-year

suspensions with the second year stayed. See, e.g., Akron Bar Assn. v. Carter,

115 Ohio St.3d 18, 2007-Ohio-4262, 873 N.E.2d 824, ¶ 18 (attorney convicted of

felony theft and misuse of his employer’s credit card); Disciplinary Counsel v.

Brenner, 122 Ohio St.3d 523, 2009-Ohio-3602, 912 N.E.2d 1116, ¶ 21-22

(attorney concealed fee agreements from his law firm and retained fees for

himself, but wrote checks from the firm’s operating account for his personal

expenses); Toledo Bar Assn. v. Lockhart (1998), 84 Ohio St.3d 7, 9, 701 N.E.2d

686 (attorney convicted of petty-theft shoplifting and tampering with records).

{¶ 19} Having weighed respondent’s conduct and the aggravating and

mitigating factors, having considered the sanctions imposed for comparable

conduct, and having recognized that respondent has served an interim felony

suspension of almost two years, we adopt the board’s recommended sanction.

Accordingly, Lisa Jane Niles is suspended from the practice of law in the state of

Ohio for two years, all stayed upon the conditions that she (1) comply with the

terms and conditions of her OLAP contract, including the treatment

recommendations of any treating physician or counselor, and (2) serve a term of

monitored probation pursuant to Gov.Bar R. V(9) commencing upon her return to

the practice of law and continuing until the expiration of her existing OLAP

contract. If respondent fails to comply with the conditions of the stay or

probation, the stay will be lifted, and respondent will serve the full two-year

suspension from practice. Costs are taxed to respondent.

Judgment accordingly.

PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

BROWN, C.J., not participating.

__________________

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

Assistant Disciplinary Counsel, for relator.

Richard E. Mayhall, for respondent.

______________________

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