Disciplinary Counsel v. Wilcox

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Disciplinary Counsel v. Wilcox, Slip Opinion No. 2014-Ohio-5264.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-5264

DISCIPLINARY COUNSEL v. WILCOX.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Disciplinary Counsel v. Wilcox,

Slip Opinion No. 2014-Ohio-5264.]

Attorneys—Misconduct—Prolonged failure to respond to repeated inquiries from

disciplinary authority—One-year suspension with conditions for

reinstatement.

(No. 2014-0546—Submitted May 28, 2014—Decided December 4, 2014.)

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and

Discipline of the Supreme Court, No. 2013-046.

_______________________

Per Curiam.

{¶ 1} Respondent, Jeffrey Jon Wilcox of Fond du Lac, Wisconsin,

Attorney Registration No. 0056288, was admitted to the practice of law in Ohio in

1991. In November 2011, we suspended him for failing to register, and in

December 2013, we suspended him for failing to comply with the continuing-

legal-education requirements in Gov.Bar R. X. In re Attorney Registration

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Suspension of Wilcox, 130 Ohio St.3d 1420, 2011-Ohio-5627, 956 N.E.2d 310; In

re Wilcox, 137 Ohio St.3d 1428, 2013-Ohio-5466, 998 N.E.2d 1182. These

suspensions remain in effect.

{¶ 2} In August 2013, relator, disciplinary counsel, charged Wilcox with

professional misconduct, mostly for repeatedly failing to respond to grievances

filed against him. The parties entered into stipulations of fact and of rule

violations, and they jointly recommended that Wilcox serve a one-year

suspension, with conditions for reinstatement, and a one-year period of monitored

probation upon reinstatement. Wilcox did not appear for the three-member panel

hearing of the Board of Commissioners on Grievances and Discipline in January

2014, but he submitted documentation indicating that he had completed several

treatment programs for alcoholism in 2013 and was residing in Wisconsin. The

panel issued a report adopting the stipulated rule violations, except for the charge

under Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that

adversely reflects on the lawyer’s fitness to practice law), which relator had

dismissed at the hearing. The panel also agreed with the parties’ recommended

sanction but added another condition for reinstatement. The board adopted the

panel’s report in its entirety, and no party has filed objections to the board’s

recommendation.

{¶ 3} Upon our review of the record, we adopt the board’s findings and

agree that the board’s recommended sanction is appropriate in this case.

Misconduct

{¶ 4} In 2011 and 2012, relator received grievances against Wilcox

involving three matters. In the first matter, Wilcox had failed to notify a

domestic-relations court of his attorney-registration suspension. In the second

matter, a former client expressed dissatisfaction with Wilcox’s representation and

stated that Wilcox had failed to return his file, although he refunded the retainer.

In the third matter, Wilcox represented a tenant in a landlord-tenant lawsuit,

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agreeing on the day of the scheduled trial to a verbal settlement with the landlord.

Wilcox was supposed to reduce the agreement to writing, but he failed to follow

through and never sent the landlord a copy. Ultimately, the landlord’s case was

dismissed for failure to prosecute, and the landlord could not later locate the

tenant to serve him with a new lawsuit.

{¶ 5} In January through March 2012, relator sent Wilcox a series of

letters regarding each of these grievances. Relator sent the letters to his office and

home addresses by certified and regular mail. Wilcox signed for many of the

letters, but some of them were returned to relator as “unclaimed.” Despite

relator’s warnings that failure to timely reply could lead to disciplinary action,

Wilcox did not respond to any of relator’s inquiries.

{¶ 6} In April 2012, relator subpoenaed Wilcox to appear for a

deposition. At that point, Wilcox contacted relator and stated that he was being

treated at an inpatient facility in Newark, Ohio, and he requested that relator

resend the letters of inquiry to his home address. As instructed, relator resent the

letters to Wilcox’s home address by certified mail. But two letters were returned

as unclaimed, and relator did not receive a signed certified receipt for the third

letter. Still without a response by May 2012, relator sent Wilcox additional letters

to his home address and to the treatment center. The letters addressed to the

treatment center were returned to relator because Wilcox had left the facility.

{¶ 7} In July 2012, the Lakewood Municipal Court sentenced Wilcox to

180 days in jail for violating conditions of his probation. The probation had been

imposed for convictions of operating a vehicle under the influence, failing to stop

after an accident, and failing to drive in marked lanes. Relator subsequently

hand-delivered a letter of inquiry regarding all three of the grievances to Wilcox

in the Cuyahoga County jail. In response, Wilcox requested an extension of time

to reply until he was released, but by December 2012, relator had not heard from

him. Relator then sent additional letters to the jail and to Wilcox’s home, but the

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letter to the jail was returned because Wilcox had been released. In January 2013,

relator twice hand-delivered letters to Wilcox’s residence, but he did not answer

either letter.

{¶ 8} Six months later, in July 2013, Wilcox finally responded to

relator’s inquiries. He informed relator that he had been battling alcoholism and

other untreated mental-health conditions for almost two years and at that point, he

was undergoing inpatient treatment at a facility in Wisconsin. In August 2013,

relator filed a formal complaint against Wilcox, who answered and thereafter

participated in the disciplinary process. Although he did not appear for the

January 2014 panel hearing, he submitted letters from his counselors in Wisconsin

indicating that he had completed a 30-day inpatient treatment program and a 90-

day residential treatment program and that he was living in a “sober living

facility.”

{¶ 9} Based on this conduct, the parties stipulated and the board found

that Wilcox violated Prof.Cond.R. 8.1(b) (prohibiting a lawyer from knowingly

failing to respond to a demand for information by a disciplinary authority during

an investigation) and 8.4(d) (prohibiting a lawyer from engaging in conduct that is

prejudicial to the administration of justice) and Gov.Bar R. V(4)(G) (requiring a

lawyer to cooperate with a disciplinary investigation). We concur in these

findings of misconduct.

Sanction

{¶ 10} When imposing sanctions for attorney misconduct, we consider

several relevant factors, including the ethical duties that the lawyer violated and

the 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. In making a final

determination, we also weigh evidence of the aggravating and mitigating factors

listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio

St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. However, because each

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disciplinary case is unique, we are not limited to the factors specified in BCGD

Proc.Reg. 10(B) and may take into account all relevant factors in determining

which sanction to impose.

Aggravating and mitigating factors

{¶ 11} The parties stipulated, and the board agreed, that the following

aggravating factors are present: (1) prior discipline, (2) a pattern of misconduct,

and (3) lack of cooperation in the disciplinary process. See BCGD

Proc.Reg.10(B)(1)(a), (c), and (e). In mitigation, the parties stipulated and the

board agreed that Wilcox lacked a dishonest or selfish motive, that he had made

an effort at restitution, and that he has been subject to other penalties, namely, the

jail time for his probation violation. See BCGD Proc.Reg. 10(B)(2)(b), (c), and

(f). We concur in these findings, although we give the fact that Wilcox spent time

in jail little mitigating value. His jail sentence was for criminal conduct and

probation violations unrelated to most of the underlying professional misconduct

here, i.e., failure to cooperate in the disciplinary investigation.

Applicable precedent

{¶ 12} As the board notes, while we have often publicly reprimanded

attorneys for failing to cooperate in a disciplinary investigation, we have also held

that in some cases, an attorney’s lack of cooperation, in and of itself, may warrant

an actual suspension. For example, in Disciplinary Counsel v. Hofelich, 115 Ohio

St.3d 14, 2007-Ohio-4269, 873 N.E.2d 821, the attorney failed to respond to

relator’s numerous inquiries regarding a grievance filed against the attorney, and

he failed to appear for a deposition requested by relator. Id. at ¶ 3-9. We found

that the attorney’s “pugnacious refusal” to respond to disciplinary counsel’s

repeated inquiries over a year-long period “led relator’s staff and the panel

members to devote many hours to an investigation that could and should have

been resolved much more quickly and at much less cost.” Id. at ¶ 16. With the

presence of only one mitigating factor—no prior discipline—we determined that

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the attorney’s disregard for the disciplinary process called into question his fitness

to serve clients, and we therefore suspended him for six months. Id.

{¶ 13} In Cleveland Bar Assn. v. James, 109 Ohio St.3d 310, 2006-Ohio-

2424, 847 N.E.2d 438, the attorney not only failed to respond to a disciplinary

authority’s repeated inquiries regarding a grievance, but he also did not participate

in the process after relator filed its complaint. We concluded that the attorney’s

“utter lack of cooperation” in the disciplinary process was “disrespectful to the

legal profession and to respondent’s colleagues in his community, and it call[ed]

into doubt respondent’s fitness to serve other clients or potential clients.” Id. at

¶ 9. Based on these factors, and the fact that the attorney was also under an

attorney-registration suspension, we issued a one-year suspension. Id. at ¶ 9-11.

{¶ 14} Here, Wilcox failed to respond to relator’s inquiries regarding

three separate grievances for approximately 18 months, and he spent portions of

that time period in jail and treatment facilities. As in Hofelich and James, his

conduct calls into question his fitness to serve clients, and an actual suspension is

warranted. Additionally, Wilcox’s misconduct was more extensive than that in

Hofelich, and more aggravating factors exist here than in Hofelich, including prior

discipline. Therefore, a harsher sanction than in Hofelich is appropriate.

Accordingly, we agree with the sanction recommended by the board. A one-year

suspension with stringent conditions on reinstatement and a one-year period of

monitored probation upon reinstatement should adequately protect the public

from any possible future harm.

Conclusion

{¶ 15} Having reviewed the record and the aggravating and mitigating

factors and having considered the sanctions imposed for comparable conduct, we

adopt the board’s recommended sanction. Jeffrey Jon Wilcox is hereby

suspended from the practice of law in Ohio for one year, with reinstatement

contingent on the following conditions: Wilcox must (1) submit proof that he has

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established a contract with the Ohio Lawyers Assistance Program (“OLAP”) and

participated in the OLAP program as recommended by his OLAP counselor, (2)

submit proof that he has continued to make regular visits to his treating mental-

health professionals at the frequency recommended by those professionals, (3)

submit an evaluation by an OLAP-designated independent and qualified

healthcare professional regarding his mental health and the propriety of his

reinstatement, (4) submit proof that his treating mental-health professional is of

the opinion that he is fit to practice law, and (5) refrain from further misconduct

during his suspension. Upon reinstatement, Wilcox shall serve a one-year period

of monitored probation. Costs are taxed to Wilcox.

Judgment accordingly.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and

FRENCH, JJ., concur.

O’NEILL, J., dissents and would indefinitely suspend the respondent.

_________________________

Scott J. Drexel, Disciplinary Counsel, and Bruce T. Davis, Assistant

Disciplinary Counsel, for relator.

Jeffrey Jon Wilcox, pro se.

_________________________

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