Disciplinary Counsel v. Nicks

[Cite as Disciplinary Counsel v. Nicks, 124 Ohio St.3d 460, 2010-Ohio-600.]

DISCIPLINARY COUNSEL v. NICKS.

[Cite as Disciplinary Counsel v. Nicks, 124 Ohio St.3d 460, 2010-Ohio-600.]

Attorneys at law — Misconduct — Multiple disciplinary violations — Chemical

dependence — Two-year suspension, partially stayed on conditions.

(No. 2009-1544 — Submitted November 4, 2009 — Decided February 25, 2010.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 09-016.

__________________

Per Curiam.

{¶ 1} Respondent, J. Michael Nicks of Galena, Ohio, Attorney

Registration No. 0073608, was admitted to the practice of law in Ohio in 2001.

Relator, Disciplinary Counsel, and respondent stipulated to the facts and

misconduct alleged in relator’s complaint. A three-member panel of the Board of

Commissioners on Grievances and Discipline also heard testimony on the cause,

issued findings of fact and conclusions of law, and made a recommendation. The

board adopted the panel’s findings and also adopted the panel’s recommendation

that we suspend respondent’s license to practice law for two years, staying the last

18 months on conditions.

{¶ 2} The parties have not objected to the board report; we ordered

respondent to show cause why we should not adopt the board’s recommendation.

On review, we find that respondent committed the cited violations of the Rules of

Professional Conduct and that the recommended sanction is appropriate.

Misconduct

Count I – The Seibel Matter

{¶ 3} In November 2006, Larry Seibel hired respondent to represent him

in the administration of his mother’s, Dorothy Seibel’s, estate. Respondent and

Seibel entered into a fee agreement by which respondent would receive three

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percent of the value of the Seibel estate. The agreement also required probate

court approval prior to the payment of any attorney fees.

{¶ 4} In February 2007, respondent asked Seibel for a check for one half

of respondent’s attorney fees, and Seibel provided respondent with a check for

$7,428.32. Respondent immediately cashed the check without obtaining the

required approval from the probate court and later filed an application for

payment of attorney fees, asking the court to approve the full amount that he had

already been paid, $7,428.32. The court issued an order, but declined to approve

the full amount and ordered that respondent be paid only $5,000. After learning

that the court had approved only $5,000 of the $7,400 fee request, respondent did

not inform Seibel, nor did he make a refund to the estate.

{¶ 5} Respondent met with Seibel again on June 17, 2007, to resolve the

estate tax return. Seibel signed the estate tax return and gave respondent a check

for the payment of the estate taxes, but respondent did not file the estate tax

return, nor did he forward the check for payment of the estate taxes. As a result,

the estate was assessed a $2,834.75 late-payment penalty and $657.04 in interest

charges.

{¶ 6} At the same June 2007 meeting, respondent asked Seibel for a

second advance on his attorney fees, and Seibel gave him a check for $3,714.16.

Again, respondent did not file with the probate court the required application for

approval of the payment of those attorney fees prior to accepting them. Instead,

he immediately endorsed and cashed the check.

{¶ 7} During respondent’s representation of Seibel, there were several

times when he failed to return Seibel’s phone calls. In addition, the probate court

issued two reminders for respondent to file an accounting on the estate. After the

probate court issued a notice of past-due account to both respondent and Seibel on

December 13, 2007, respondent met with Seibel to discuss the matter. At the time

of this meeting, respondent’s law license had been suspended for failure to

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comply with attorney-registration requirements for the 2007-2009 biennium, but

respondent did not inform Seibel of the suspension.1 Rather, respondent advised

Seibel on how to obtain an extension of time to file his overdue account.

Respondent admitted that as of the date of the hearing before the panel, he had not

repaid to the estate the fees taken without probate court approval or the interest

and late-payment penalty that had been charged to the estate.

{¶ 8} Respondent stipulated and the board concluded that respondent’s

conduct in Count I violated the following Rules of Professional Conduct: 1.3 (a

lawyer shall act with reasonable diligence and promptness in representing a

client), 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules

of a tribunal), 8.4(c) (a lawyer shall not engage in conduct involving fraud, deceit,

dishonesty, or misrepresentation), 8.4(d) (a lawyer shall not engage in conduct

that is prejudicial to the administration of justice), and 8.4(h) (a lawyer shall not

engage in conduct that adversely reflects upon fitness to practice law).

{¶ 9} Although respondent stipulated that his conduct also violated

Prof.Cond.R. 1.1 (a lawyer shall provide competent representation to a client), the

board concluded that respondent’s conduct did not violate that rule. The board

noted, “ ‘Prof.Cond.R. 1.1 requires a lawyer to “provide competent representation

to a client.” “Competent representation” under the rule requires “the legal

knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation,” ’ ” quoting Cincinnati Bar Assn. v. Lawson, 119 Ohio St.3d 58,

2008-Ohio-3340, 891 N.E.2d 749, ¶ 46. The board also noted that this court has

also stated that “competent representation” means that “the lawyer must apply the

knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation.” (Emphasis added.) Disciplinary Counsel v. Lentes, 120 Ohio

St.3d 431, 2008-Ohio-6355, 900 N.E.2d 167, ¶ 13.

1. Respondent was suspended on December 3, 2007, and his law license was reinstated on April

29, 2008.

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{¶ 10} The board concluded that Prof.Cond.R. 1.1 focuses on whether a

lawyer is competently prepared to handle a legal matter and found that respondent

possessed the requisite experience to be regarded as competent to handle probate

matters. Moreover, the board concluded that there was no evidence that any of

the work completed by respondent in the Seibel estate was not prepared in

accordance with applicable legal standards. We agree and accept these findings

regarding misconduct.

Count II – The Graham Matter

{¶ 11} In July 2006, Donald Graham hired respondent to represent him in

the administration of his wife’s estate and paid him a $500 fee. On January 13,

2008, the probate court issued a citation requesting that respondent file a report of

distribution and evidence of the recording of a certificate of transfer. The court

scheduled a status conference on February 20, 2008, to address the issue, but

respondent failed to respond to the court’s citation and failed to appear at the

status conference. As a result, the court scheduled a show-cause hearing in March

2008, at which he failed to appear. The probate court issued an order in March

2008 finding respondent in contempt. In January 2009, respondent filed a motion

to reopen the estate, and the probate court approved the filing of the report of

distribution and found that respondent’s actions cured the contempt.

{¶ 12} Respondent stipulated and the board concluded that respondent’s

conduct in Count II violated Prof.Cond.R. 1.3, 8.4(d), and 8.4(h).

{¶ 13} Again, although respondent stipulated that the conduct also

violated Prof.Cond.R. 1.1, the board concluded that respondent’s conduct did not

violate the rule. The board stated that it was unable to conclude by clear and

convincing evidence that respondent violated Prof.Cond.R. 1.1 simply by his

failure to timely file the required report of distribution. We agree and accept

these findings regarding misconduct.

Sanction

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{¶ 14} 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.”). Lake Cty. Bar Assn. v. Troy, 121 Ohio St.3d 51,

2009-Ohio-502, 901 N.E.2d 809, ¶ 11.

{¶ 15} We have identified respondent's breaches of duties owed to his

clients, the legal profession, and the judicial system. In respondent’s case, the

board found two aggravating factors. The board found that respondent’s

misconduct involved multiple offenses, BCGD Proc.Reg. 10(B)(1)(d), and that

respondent failed to make restitution, 10(B)(1)(i).

{¶ 16} The board found three mitigating factors. First, the board found

that respondent has no prior disciplinary record, BCGD Proc.Reg. 10(B)(2)(a).

Second, the board found that respondent cooperated fully in the disciplinary

process, BCGD Proc.Reg. 10(B)(2)(d). Finally, the board found that respondent’s

chemical dependence was a mitigating factor, BCGD Proc.Reg. 10(B)(2)(g),

because the evidence supported the following requisites of that rule: (1) a

diagnosis of a chemical dependence by a qualified health-care professional or

alcohol/substance-abuse counselor, (2) a determination that the chemical

dependence contributed to cause the misconduct, (3) a certification of successful

ongoing compliance with an approved treatment program, and (4) a prognosis

from a qualified alcohol/substance-abuse counselor that respondent will be able to

return to competent, ethical professional practice under specified conditions. The

board further found that respondent fully acknowledged the wrongful nature of

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his conduct and fully accepted responsibility for the consequences of his

misconduct.

{¶ 17} As for respondent’s chemical dependence, the parties stipulated

that respondent was diagnosed as suffering from chemical dependence based on

his addiction to marijuana, alcohol, and cocaine. Respondent had completed a

partial hospitalization program and an intensive outpatient chemical-dependence

program. Respondent had also entered into a five-year contract with the Ohio

Lawyers Assistance Program (“OLAP”). Respondent is in compliance with his

contract and currently in treatment with psychologist John A. Tarpey, Ph.D.

Moreover, respondent entered a one-year aftercare program.

{¶ 18} Respondent had a relapse in December 2008, but had maintained a

sustained, uninterrupted period of sobriety from December 12, 2008, to at least

the time of the stipulations. Dr. Tarpey and Carolyn Sellers, a licensed social

worker and chemical-dependence counselor, stated that respondent’s chemical

dependence contributed to the cause of his misconduct, that respondent’s

prognosis was positive, and that he could return to the competent, ethical practice

of law so long as he continued his treatment, complied with his OLAP contract,

and maintained his sobriety. In addition, Stephanie Krznarich, a licensed social

worker with OLAP, testified in mitigation that respondent’s compliance was

“going very, very well.” She also testified that in her opinion, respondent’s

chemical dependence contributed to cause his misconduct. She also testified that

with continued treatment, medications, and monitoring, he should be able to

successfully return to the practice of law.

{¶ 19} The board adopted the stipulated sanction that respondent’s license

to practice law be suspended for 24 months with the last 18 months stayed on the

following conditions: (1) that respondent remain in compliance with his five-year

OLAP contract, (2) that respondent pay $9,634.27 in restitution to the Seibel

estate or the beneficiaries thereof, as ordered by the Probate Court of Licking

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County, (3) that respondent’s practice be monitored in accordance with Gov.Bar

R. V(9) by an attorney designated by relator for the period of respondent’s stayed

suspension, (4) that respondent not engage in any further misconduct during the

entire 24-month suspension, and (5) that respondent pay the costs of the

prosecution of this action.

Review

{¶ 20} Regarding sanctions in similar cases, we find Disciplinary Counsel

v. Greco, 107 Ohio St.3d 155, 2005-Ohio-6045, 837 N.E.2d 369, to be instructive.

In that case, the attorney neglected clients, deceived clients, and was slow to

refund unearned retainers. Greco experienced similar chemical dependence and

also successfully completed treatment programs and cooperated with the

disciplinary process. We suspended the lawyer's license for two years but stayed

18 months of the suspension on the condition that the lawyer receive assistance in

his recovery from chemical dependence.

{¶ 21} Accordingly, we accept the board’s recommendation. Respondent

is therefore suspended from the practice of law in Ohio for two years, with 18

months of the suspension stayed on the conditions listed above. If respondent

fails to comply with the terms of the stay, the stay will be lifted, and respondent

will serve the entire two years. Costs are taxed to respondent.

Judgment accordingly.

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

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

__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger,

Assistant Disciplinary Counsel, for relator.

J. Michael Nicks, pro se.

______________________

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