Disciplinary Counsel v. Wineman

[Cite as Disciplinary Counsel v. Wineman, 121 Ohio St.3d 614, 2009-Ohio-2005.]

DISCIPLINARY COUNSEL v. WINEMAN.

[Cite as Disciplinary Counsel v. Wineman,

121 Ohio St.3d 614, 2009-Ohio-2005.]

Attorney misconduct, including engaging in conduct prejudicial to the

administration of justice — Two-year suspension, stayed on conditions.

(No. 2008-2405 — Submitted February 4, 2009 — Decided May 6, 2009.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 07-076.

__________________

Per Curiam.

{¶ 1} Respondent, Reese Mark Wineman of Norwalk, Ohio, Attorney

Registration No. 0032268, was admitted to the practice of law in Ohio in 1976.

The Board of Commissioners on Grievances and Discipline recommends that we

suspend respondent’s license to practice for two years, staying the entire

suspension on conditions, based on findings that he attempted to represent clients,

both in and out of the courtroom, while intoxicated. We agree that respondent

committed professional misconduct as found by the board and that a two-year

suspension, conditionally stayed, is appropriate.

{¶ 2} Relator, Disciplinary Counsel, charged respondent in a two-count

complaint with violations of the Disciplinary Rules of the Code of Professional

Responsibility and the Rules of Professional Conduct.1 A panel of board

members heard the case, reviewed the parties’ extensive stipulations, and made

findings of fact and conclusions of law and recommended the two-year

1. Relator charged respondent with violations of the applicable rules for acts occurring before and

after February 1, 2007, the effective date of the Rules of Professional Conduct, which supersede

the Code of Professional Responsibility.

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conditionally stayed suspension. The board adopted the panel’s findings of

misconduct and recommendation.

Misconduct

Count I — The August 3, 2006 Proceedings

{¶ 3} On the morning of August 3, 2006, respondent was scheduled to

appear on behalf of clients in two different proceedings before the Huron County

Common Pleas Court. When he arrived at the courthouse, a sheriff’s deputy

handling security suspected from respondent’s appearance and breath that he was

intoxicated. Opposing counsel in one of respondent’s cases came to the same

conclusion after trying to discuss the case with him. The lawyer reported his

suspicions to a magistrate, and the magistrate confirmed the lawyer’s impressions

with the deputy sheriff.

{¶ 4} The magistrate reported respondent’s condition to the common

pleas judge, who brought respondent into his chambers and confronted him. The

judge also observed the telltale signs of intoxication, including respondent’s

slurred speech and the odor of alcohol. Respondent acknowledged his intoxicated

state, apologizing to the judge and conceding that he needed help. The judge

forbade respondent to participate in the two hearings scheduled for that day, and

respondent agreed to continuances at his cost.

{¶ 5} Respondent stipulated and the panel and board found the evidence

clear and convincing that respondent’s conduct during the proceedings on August

3, 2006, violated DR 1-102(A)(5) (a lawyer shall not engage in conduct that is

prejudicial to the administration of justice) and 1-102(A)(6) (a lawyer shall not

engage in conduct that adversely reflects on his fitness to practice law). We

accept these findings of misconduct.

Count II — The Sandifer Case

{¶ 6} In April 2007, Michael Sandifer hired respondent to defend him

against a criminal charge in the Norwalk Municipal Court. Sandifer met that

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month with respondent at his office, expecting to discuss the case. He ended up

leaving the meeting abruptly because respondent was obviously intoxicated.

{¶ 7} Respondent also appeared under the influence of alcohol at one of

Sandifer’s pretrial hearings. On May 9, 2007, respondent entered the municipal

courtroom, walked by Sandifer without acknowledging his presence, and entered

the judge’s chambers. In chambers, the judge and the assistant law director

prosecuting the case detected the odor of alcohol on him. The judge warned

respondent that he would declare a mistrial and find respondent in contempt if he

appeared at trial while intoxicated.

{¶ 8} Respondent did not heed the judge’s warning. During a lunch

break on the day of trial, Sandifer noticed that his attorney’s eyes were bloodshot

and his speech was slurred and that he again smelled of alcohol. Respondent was

unresponsive to Sandifer’s request that he ask specific questions of a witness and

instead repeatedly asked his client to remind him of the facts in the case. Sandifer

feared that respondent was again under the influence of alcohol.

{¶ 9} A jury found Sandifer guilty as charged. In June 2007, Sandifer

discharged respondent, asked for a refund of the $750 fee, and hired a new

lawyer. In part because of respondent’s possible intoxication during trial, the

judge vacated the conviction, and Sandifer was convicted of a lesser crime. In

August 2007, after reviewing a draft of relator’s complaint, respondent returned

Sandifer’s $750.

{¶ 10} Respondent stipulated and the panel and board found the evidence

clear and convincing that respondent’s conduct in the Sandifer case violated

Prof.Cond.R. 1.1 (a lawyer shall represent a client competently, with the legal

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

representation), 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

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that adversely reflects on his fitness to practice law). We accept these findings of

misconduct.

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

2009-Ohio-502, 901 N.E.2d 809, ¶ 11.

{¶ 12} We have already identified respondent’s breaches of duties owed

to his client, the legal profession, and the judicial system. Regarding sanctions in

similar cases, we find Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007-

Ohio-4796, 874 N.E.2d 521, instructive. In that case, we suspended a lawyer’s

license for two years but stayed the suspension on conditions that the lawyer

receive assistance in his recovery from alcohol dependence. Like respondent,

Scurry also had attempted to conduct his professional affairs while intoxicated,

including having meetings with clients. Although Scurry did not appear in court

under the influence of alcohol, he did contact a local court on numerous occasions

while inebriated.

{¶ 13} In respondent’s case, finding no aggravating factors, the board

weighed four mitigating factors in his favor. Respondent has no prior disciplinary

record, his misconduct was not motivated by self-interest or dishonesty, he has

cooperated fully in the disciplinary process, and he has offered persuasive

evidence of his professional competence, good character, and reputation apart

from the underlying misconduct. See BCGD Proc.Reg. 10(B)(2)(a), (b), (d), and

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(e). Similar mitigating evidence was presented in Scurry, although that lawyer

had a history of professional discipline related to alcoholism. 115 Ohio St.3d 201,

2007-Ohio-4796, 874 N.E.2d 521, ¶ 14. Moreover, both here and in Scurry, the

lawyers satisfied BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv) (affording

mitigating effect upon a showing that (1) a lawyer has been diagnosed with

alcoholism by a qualified health-care professional, (2) the alcoholism contributed

to cause the misconduct, (3) he has successfully completed an approved treatment

program, and (4) a qualified health-care professional has released him to return,

under specified conditions if necessary, to the competent, ethical, and professional

practice of law).

{¶ 14} Respondent has a long history of alcohol abuse that includes

unsuccessful treatment regimes. Paul Caimi, associate director of the Ohio

Lawyers Assistance Program (“OLAP”), testified about respondent’s assessment

as being alcohol dependent, a condition that obviously led to his intoxication on

August 3, 2006, and in the Sandifer case. Respondent originally entered into an

OLAP recovery contract on June 9, 2007.

{¶ 15} Respondent complied with the terms of that contract to the extent

of regularly attending group counseling meetings and getting a sponsor. Because

he had no medical insurance and felt he could not leave his practice, however, he

did not attend a recommended inpatient treatment program. He relapsed on July

4, 2007, by having an alcoholic beverage. Respondent reported the relapse to

Caimi and has maintained sobriety ever since.

{¶ 16} Notwithstanding his sobriety, respondent’s failure to enter an

inpatient treatment facility prompted Caimi in February 2008 to formally

terminate his contract with OLAP for noncompliance. But in May 2008,

respondent reconnected with Caimi and signed another recovery contract. At the

time of the July 21, 2008 panel hearing, respondent had recently obtained an

assessment from a psychiatrist who specializes in chemical dependence. He was

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waiting to receive the doctor’s recommendations for a treatment plan, which

Caimi understood would this time allow outpatient treatment. Caimi assured the

panel that respondent was in compliance with his most recent OLAP contract.

{¶ 17} The panel and board fully appreciated the threat that respondent’s

unmanaged alcohol dependence posed to the public. The panel stated:

{¶ 18} “When determining the sanction in this case, the Panel is faced

with two incidents where Respondent consumed alcohol and attempted to

represent clients while under the influence of alcohol. While the record is replete

with testimony of Respondent’s relapses from sobriety and failed treatment

history, the Panel determined that ultimately the sanction must reflect the

appropriate punishment for the violations set forth above. This is not to say that

the Panel does not recognize the potential harm that could have occurred by

Respondent’s altered state while representing clients. Therefore, considering

Respondent’s long history of practice without a disciplinary record as mitigating

and in view of his cooperation in the disciplinary process, the Panel recommends

that Respondent be suspended from the practice of law for a period of twenty-four

months, with the period of suspension stayed subject to * * * conditions.”

{¶ 19} The board adopted the panel’s recommended conditions, which are

aimed at assisting respondent’s recovery and ensuring the public’s protection.

These conditions are as follows:

{¶ 20} 1. Respondent must comply with the terms of his OLAP contract,

including any inpatient or outpatient treatment program determined by OLAP;

{¶ 21} 2. Respondent must complete a two-year probation in accordance

with Gov.Bar R.V(9), including quarterly reports to a monitoring attorney

appointed by relator as to his compliance with OLAP treatment recommendations

and his progress; and

{¶ 22} 3. Respondent must not commit any further misconduct.

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{¶ 23} We accept the board’s recommendation. Respondent is therefore

suspended from the practice of law in Ohio for two years. The suspension is

stayed on the listed conditions. If respondent violates the terms of the stay or his

probation, the stay will be lifted, and his license to practice law will be suspended

for 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 Philip A. King, Assistant

Disciplinary Counsel, for relator.

Christensen, Christensen, Donchatz, Kettlewell & Owens and Kenneth R.

Donchatz, for respondent.

______________________

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