The opinion
[Cite as Mahoning Cty. Bar Assn. v. Theisler, 125 Ohio St.3d 144, 2010-Ohio-1472.]
MAHONING COUNTY BAR ASSOCIATION v. THEISLER.
[Cite as Mahoning Cty. Bar Assn. v. Theisler,
125 Ohio St.3d 144, 2010-Ohio-1472.]
Attorneys at law — Misconduct — Violations of the Disciplinary Rules, including
98 felony convictions — Indefinite license suspension ordered.
(No. 2009-1541 — Submitted November 18, 2009 — Decided April 8, 2010.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 05-012.
__________________
Per Curiam.
{¶ 1} Respondent, Charles W. Theisler of Youngstown, Ohio, Attorney
Registration No. 0062582, was admitted to the practice of law in Ohio in 1993.
On October 27, 2005, we suspended respondent’s license to practice for an
interim period pursuant to Gov.Bar R. V(5)(A)(4) upon receiving notice that he
had been convicted of a felony. See In re Theisler, 106 Ohio St.3d 1560, 2005-
Ohio-5665, 836 N.E.2d 584. At that time, we ordered that the matter be referred
to relator, Mahoning County Bar Association, for investigation and
commencement of disciplinary proceedings. Id. Nearly a year later, this court
found respondent in contempt of our 2005 order for failing to file an affidavit of
compliance on or before November 28, 2005. In re Theisler, 110 Ohio St.3d
1483, 2006-Ohio-4877, 854 N.E.2d 210.
{¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that as our final disposition in this case, we indefinitely suspend
respondent’s license to practice law without any credit for time served during the
interim felony suspension. We accept the board’s findings and conclusions that
respondent violated ethical standards incumbent on Ohio lawyers. Therefore, we
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indefinitely suspend respondent’s license to practice law in Ohio, granting no
credit for time served under the interim suspension.
Misconduct
{¶ 3} In addition to having been a licensed attorney, respondent was a
licensed chiropractor.1 After over 20 years of chiropractic practice in
Youngstown, respondent became a licensed Ohio attorney in 1993. Five years
later, respondent graduated from the Grace University School of Medicine in St.
Kitts, but did not complete the United States Medical Licensing Examinations and
therefore was never a licensed physician.
{¶ 4} Respondent associated himself with two medical doctors doing
business under the name Pain Management Associates. After initially consulting
medical doctors at Pain Management, patients returning for follow-up
appointments would see respondent, who wrote prescriptions for them on a
doctor’s presigned blank prescription form.
{¶ 5} Ultimately, respondent was indicted by the grand jury on 118
counts relating to his activities at Pain Management Associates. The counts
included engaging in a pattern of corrupt activity, drug trafficking, illegal
processing of drug documents, and practicing medicine or surgery without a
certificate. A jury found respondent guilty on 98 counts, and respondent served
three years in prison.
{¶ 6} The Trumbull County Court of Appeals affirmed respondent’s
convictions and sentences. State v. Theisler, Trumbull App. No. 2005 T 0106,
2007-Ohio-213, ¶ 127. This court declined jurisdiction. State v. Theisler, 114
Ohio St.3d 1412, 2007 Ohio 2632, 867 N.E.2d 845. In addition, the Eleventh
District Court of Appeals affirmed the trial court’s denial of respondent’s petition
for postconviction relief. State v. Theisler, Trumbull App. No. 2009-T-0003,
2009-Ohio-6862, ¶ 33. Respondent’s petition for a writ of habeas corpus was also
1. Respondent’s chiropractic license was revoked as a result of his felony convictions.
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denied. Respondent served his three-year term of imprisonment, which ended in
September 2008, after which he was placed on probation. That order remains in
effect until September 2011.
{¶ 7} After respondent’s 2005 felony license suspension, we ordered that
the matter be referred to relator for investigation. Relator charged respondent in
an amended complaint with violating certain Disciplinary Rules of the Code of
Professional Responsibility, including DR 1-102(A)(4) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(6)
(engaging in conduct that adversely reflects on the lawyer’s fitness to practice
law).
{¶ 8} A three-member panel of the Board of Commissioners on
Grievances and Discipline heard testimony at a hearing and considered the
parties’ joint stipulations. Respondent testified that during his employment with
Pain Management Associates as a “medical assistant,” he ceased providing
chiropractic services. He also testified that prior to accepting the job, he had
reviewed R.C. Chapter 4730 regarding physician assistants and former Ohio
Adm.Code 4731-4-04, which addressed physician-assistant prohibitions. From
that research, he erroneously concluded that he could perform medical
examinations, give injections, and undertake any other clinical work that the
physician might delegate to him under supervision. Respondent testified that he
performed follow-up exams only and that he was not engaged in the practice of
medicine. At the hearing, respondent admitted that he had failed to earn a
certificate as a “medical assistant,” although that option had been open to him.
{¶ 9} Based on the exhibits submitted and testimony at the hearing
before it, the panel found by clear and convincing evidence that respondent had
violated DR 1-102(A)(4), in that respondent’s felony convictions demonstrated
conduct involving dishonesty, fraud, deceit, or misrepresentation, and 1-
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102(A)(6), in that respondent’s convictions adversely reflected on his fitness to
practice law.
{¶ 10} In addition, the panel issued findings of fact and conclusions of
law and made a recommendation. The board adopted the panel’s findings and the
recommendation that we indefinitely suspend respondent’s license to practice law
without any credit for time served during the interim felony suspension.
Respondent objected to the board’s recommended sanction, arguing that it was
too harsh, punishes respondent disproportionately to others, and is not necessary
to protect the public.
Sanction
{¶ 11} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties violated by the lawyer in question and
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. Before making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10 of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”). See Lake Cty. Bar Assn. v. Troy, 121 Ohio St.3d
51, 2009-Ohio-502, 901 N.E.2d 809, ¶ 11.
{¶ 12} We have identified respondent's breaches of his duties to his
clients, the legal profession, and the judicial system. In respondent’s case, the
parties stipulated to and the board found two aggravating factors: respondent’s
misconduct involved a pattern of misconduct, BCGD Proc.Reg. 10(B)(1)(c), and
multiple offenses, 10(B)(1)(d).
{¶ 13} The parties stipulated to the following five mitigating factors: no
prior disciplinary violations, BCGD Proc.Reg. 10(B)(2)(a), a lack of dishonest or
selfish motive, 10(B)(2)(b), absence of harm to victims, and his aversion to
committing further offenses. Furthermore, the parties stipulated that respondent
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had cooperated fully with relator and the panel during the investigation and
disciplinary proceedings, BCGD Proc.Reg. 10(B)(2)(d), and that respondent has
received and served criminal sanctions for his illegal activity, 10(B)(2)(f).
However, the panel also noted its doubts about the stipulation that no dishonest
motive was involved, and it further noted that no letters attesting to respondent’s
good character had been submitted.
{¶ 14} Relator recommended an indefinite suspension with no credit
given for the interim suspension. Respondent proposed a two-year suspension
with credit for the interim suspension, or in the event that the court imposes an
indefinite suspension, that credit be given for time served.
{¶ 15} The board, echoing the panel, noted that respondent showed
remorse during the hearing and that he has already paid a debt to society by virtue
of his incarceration and his continued probation. The board found that no medical
patients were harmed, but it could not discount that respondent has 98 felony
convictions. The board adopted the panel’s recommendation that respondent’s
license to practice law be indefinitely suspended without credit for the interim
felony suspension.
Review
{¶ 16} In determining the appropriate sanction for professional
misconduct, this court considers the duties violated, the actual or potential injury
caused, the lawyer’s mental state, existence of aggravated or mitigating
circumstances, and sanctions imposed in similar cases. Columbus Bar Assn. v.
Linnen, 111 Ohio St.3d 507, 2006-Ohio-5480, 857 N.E.2d 539, at ¶ 25.
{¶ 17} As noted in the board’s report, the applicable sanction for serious
felony convictions has been either disbarment or indefinite suspension. The board
recommends that we indefinitely suspend respondent’s license with no credit for
time served on his interim suspension. After reviewing relevant cases outlined
below, we accept this recommendation.
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{¶ 18} Regarding sanctions in similar cases, we find Disciplinary Counsel
v. LoDico, 118 Ohio St.3d 316, 2008-Ohio-2465, 888 N.E.2d 1097, to be
instructive. LoDico involved an interim suspension based on the respondent’s
felony conviction of carrying a concealed weapon. This court imposed an
indefinite suspension with no credit for the interim suspension, despite mitigating
factors similar to those in this case. Specifically, LoDico involved stipulated
facts, a cooperative respondent, and completion of a court-ordered sentence.
LoDico did have a prior disciplinary violation for unprofessional conduct that had
warranted an 18-month suspension with six months stayed on conditions.
However, LoDico was convicted of only one fourth-degree felony, whereas
respondent was convicted of 98 felonies, ranging from the first to fifth degree.
{¶ 19} Moreover, in Linnen, 111 Ohio St.3d 507, 2006-Ohio-5480, 857
N.E.2d 539, the attorney had been convicted of 53 misdemeanors: two first-
degree misdemeanor counts of sexual imposition, one first-degree misdemeanor
count of aggravated trespass, 11 third-degree misdemeanor counts of sexual
imposition, and 39 fourth-degree misdemeanor counts of public indecency. Id. at
¶ 5. Unlike respondent’s, none of Linnen’s crimes were felonies, and this court
indefinitely suspended Linnen’s license.
{¶ 20} Respondent makes much of the fact that he did not believe at the
time that what he was doing when working as a physician’s assistant at Pain
Management Associates was wrong, and he relies heavily on Disciplinary
Counsel v. Margolis, 114 Ohio St.3d 165, 2007-Ohio-3607, 870 N.E.2d 1158.
Margolis was convicted of two counts of conspiracy to restrain trade. Like
respondent, Margolis was found to have violated DR 1-102(A)(4) and 1-
102(A)(6). Id. at ¶ 9. Margolis was suspended from the practice of law for two
years. Id. at ¶ 30. Unlike in this case, however, the board had recommended a
two-year suspension. Id. at ¶ 2. Also, Margolis submitted 92 letters commending
him personally and professionally, whereas no letters attesting to respondent’s
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good character were submitted to the board here. Moreover, the board noted,
“The Panel has doubts about accepting the stipulation that there was no dishonest
motive here.” Furthermore, Margolis was convicted of two antitrust crimes as
opposed to respondent’s 98 crimes. Respondent’s reliance on Margolis, as well
as the other cases cited in his objections to the board’s report and
recommendation, is misplaced.
{¶ 21} Respondent’s 98 felonies, including aggravated trafficking in
drugs, illegal processing of drug documents, engaging in a pattern of corrupt
activity, and practicing medicine or surgery without a certificate, warrant an
indefinite license suspension without credit for time served. We are compelled to
agree with relator that “a lawyer who (allegedly) researches an issue and, in
reliance on that research, is convicted of 98 felonies, is as much of a threat to
future potential clients as a lawyer who researches the law and knows his conduct
is wrong but nevertheless commits the felonies.”
{¶ 22} Accordingly, we accept the board’s recommendation. Respondent
is therefore indefinitely suspended from the practice of law in Ohio without credit
for time served during the interim felony suspension imposed on October 27,
2005. Respondent is also required to complete his term of probation before
applying for readmission to the practice of law in Ohio. Costs are taxed to
respondent.
Judgment accordingly.
MOYER, C.J.,2 and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Ronald E. Slipski and David Comstock Jr., for relator.
2. The late Chief Justice Thomas J. Moyer participated in the deliberations in, and the final
resolution of, this case prior to his death.
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John B. Juhasz, for respondent.
______________________
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