Disciplinary Counsel v. Thomas

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

Disciplinary Counsel v. Thomas, Slip Opinion No. 2016-Ohio-1582.]

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. 2016-OHIO-1582

DISCIPLINARY COUNSEL v. THOMAS.

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

may be cited as Disciplinary Counsel v. Thomas, Slip Opinion

No. 2016-Ohio-1582.]

Attorneys—Misconduct—Attorney convicted of felony theft offenses and

misdemeanor falsification offenses for misappropriating funds from

vulnerable, elderly, court-appointed clients and filing false inventories with

the probate court—Illegal acts that reflect adversely on lawyer’s honesty—

Conduct involving fraud, deceit, and misrepresentation—Conduct

prejudicial to the administration of justice—Knowingly making false

statements to a tribunal—Knowingly offering false evidence—Indefinite

suspension—Reinstatement conditioned on restitution, substance-abuse

treatment, and other requirements.

(No. 2015-1001—Submitted November 17, 2015—Decided April 20, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the

Supreme Court, No. 2014-081.

SUPREME COURT OF OHIO

_______________________

Per Curiam.

{¶ 1} Respondent, James William Thomas Jr., formerly of Eaton, Ohio,

Attorney Registration No. 0074051, was admitted to the practice of law in Ohio in

2001. We suspended Thomas’s license on an interim basis, effective July 22, 2014,

after he was convicted of two counts of theft and one count of theft from the

elderly—all felonies committed against individuals for whom he served as a court-

appointed guardian—and three misdemeanor counts of falsification. See In re

Thomas, 140 Ohio St.3d 1224, 2014-Ohio-3174, 15 N.E.3d 871.

{¶ 2} In an October 29, 2014 complaint, relator, disciplinary counsel,

charged Thomas with multiple violations of the Rules of Professional Conduct

arising from his felony convictions. Thomas admitted each of the allegations in his

answer and entered into joint stipulations of fact, misconduct, and aggravating and

mitigating factors.

{¶ 3} A panel of the Board of Professional Conduct granted the parties’

motion to waive the hearing and adopted the parties’ stipulations. The panel also

adopted the parties’ recommendation that Thomas be indefinitely suspended from

the practice of law in Ohio. In addition, the panel recommended that Thomas be

credited for the time served under his interim felony suspension and that his

reinstatement be conditioned on completion of his term of incarceration, payment

of restitution, compliance with all terms and conditions of his criminal probation,

completion of an approved treatment program for substance abuse and addiction,

and ongoing treatment for his drug addiction. The board adopted the panel’s

findings of fact and misconduct, aggravating and mitigating factors, and sanction,

with some modifications to the requirement for restitution.

{¶ 4} Following a remand by this court for additional consideration of the

recommended conditions for Thomas’s reinstatement, the board issued a revised

recommendation regarding Thomas’s restitution obligation.

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January Term, 2016

{¶ 5} We adopt the board’s findings of fact and misconduct and its

recommended sanction, as amended by the board’s supplemental report and

recommendation. We do not, however, credit Thomas for the time served under

his interim felony suspension.

Misconduct

{¶ 6} Thomas was charged in an April 28, 2014 bill of information with two

third-degree-felony counts of theft in violation of R.C. 2913.02(A)(3), one fourth-

degree-felony count of theft from an elderly or disabled person in violation of R.C.

2913.02(A)(3), and three first-degree-misdemeanor counts of knowingly making a

false statement or knowingly swearing or affirming the truth of a previously made

false statement in violation of R.C. 2921.13(A)(10). Thomas pleaded no contest to

the charges, which arose out of his theft of funds from four individuals for whom

he served as a court-appointed guardian and his subsequent attempts to conceal the

thefts by filing false inventories with the Preble County Probate Court. He was

sentenced to a four-and-one-half-year prison term and ordered to make restitution

of $208,095.15, to be distributed to his former clients as follows: $115,112.75 for

the benefit of J.S.,1 $72,149.40 for the benefit of E.T., $17,487 for the benefit of

R.B., and $3,346 for the benefit of K.O.

{¶ 7} Based on the parties’ stipulations and supporting documents, the

board found that by misappropriating funds from individuals for whom Thomas

was appointed to serve as a guardian, he violated Prof.Cond.R. 8.4(b) (prohibiting

a lawyer from committing an illegal act that reflects adversely on the lawyer’s

honesty or trustworthiness), 8.4(c) (prohibiting a lawyer from engaging in conduct

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

lawyer from engaging in conduct that is prejudicial to the administration of justice).

The board also found that his filing of false inventories with the Preble County

1

The guardian appointed to represent the estate of J.S. settled J.S.’s claims against Thomas and

received $89,950 from his professional-liability carrier in 2015.

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SUPREME COURT OF OHIO

Probate Court to conceal his theft of funds from his wards violated Prof.Cond.R.

3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or

law to a tribunal), 3.3(a)(3) (prohibiting a lawyer from knowingly offering evidence

that the lawyer knows to be false), 8.4(b), 8.4(c), and 8.4(d). No objections have

been filed.

{¶ 8} We adopt these findings of fact and misconduct.

Sanction

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

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 set forth in

Gov.Bar R. V(13)(A) through (C). See, e.g., Disciplinary Counsel v. Broeren, 115

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

{¶ 10} The parties stipulated and the board found that two aggravating

factors are present. Thomas acted with a dishonest or selfish motive by using the

money that he misappropriated from his wards primarily to maintain his addiction

to ephedrine and to compensate for the loss of law-practice income occasioned by

that addiction. See Gov.Bar R. V(13)(B)(2). He engaged in multiple offenses,

stealing funds from at least four of his wards on multiple occasions over a period

of more than six years and attempting to conceal his theft of those funds by filing

false inventories with the probate court on at least three occasions. See Gov.Bar R.

V(13)(B)(4). In addition to these aggravating factors, we also find that Thomas

engaged in a pattern of misconduct that harmed vulnerable clients by

misappropriating more than $200,000 over a period of six years from the wards he

was court-appointed to protect. See Gov.Bar R. V(13)(B)(3) and (8).

{¶ 11} The board also adopted the parties’ stipulations with respect to the

applicable mitigating factors. It found that Thomas did not have a prior disciplinary

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January Term, 2016

record2 and that he had made a full and free disclosure to the board and

demonstrated a cooperative attitude toward the proceedings, fully admitting his

wrongdoing in his answer and in his agreed stipulations. See Gov.Bar R.

V(13)(C)(1) and (4). The board accorded mitigating effect to his good character

and reputation apart from the charged misconduct and to the imposition of other

penalties and sanctions, including his four-and-one-half-year prison sentence and

criminal restitution order. See Gov.Bar R. V(13)(C)(5) and (6).

{¶ 12} Consistent with the stipulations, the board also determined that

Thomas had made a timely, good-faith effort to make restitution or to rectify the

consequences of his misconduct. This finding was based on an $89,950 settlement

paid to the guardian of J.S. by Thomas’s professional-liability-insurance carrier, a

refund of $1,650 paid by Thomas’s father to two other clients who were not

identified in these proceedings, and an agreement that Thomas’s father would make

monthly restitution payments of $750, to be apportioned among the three other

identified victims of Thomas’s misconduct. See Gov.Bar R. V(13)(C)(3). We

reject this finding because the effort to make restitution was not timely and because

J.S.’s new guardian had to resort to a lawsuit and obtain a default judgment against

Thomas, ultimately accepting a substantially reduced amount from Thomas’s

professional-liability-insurance carrier. Moreover, there is no evidence that

Thomas has made any effort to make restitution to the other victims of his

misconduct. On the contrary, the evidence demonstrates that Thomas’s father has

voluntarily agreed to make restitution payments of $750 per month for two years,

with the payments to be apportioned to the victims of Thomas’s misconduct. But

those payments will only account for $18,000 of Thomas’s court-ordered

obligation, which currently exceeds $90,000.

2

During the pendency of this action, however, we suspended Thomas’s license to practice based on

his failure to timely register for the 2015-2016 biennium. In re Attorney Registration Suspension of

Thomas, 143 Ohio St.3d 1509, 2015-Ohio-4567, 39 N.E.3d 1277.

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SUPREME COURT OF OHIO

{¶ 13} The board adopted the parties’ stipulation that Thomas’s diagnosis

of an addiction to ephedrine was a mitigating factor because (1) the addiction

significantly contributed to his misconduct, (2) he successfully completed a five-

week residential treatment program after his criminal conviction but before his

sentence, and (3) his addictive behaviors are less likely to recur if he remains in

recovery.

{¶ 14} The board recommends that Thomas be indefinitely suspended from

the practice of law with credit for the time he has served under his interim felony

suspension and that his reinstatement to the practice of law be subject to the

following conditions: (1) completion of his period of incarceration, (2) payment of

restitution for the benefit of E.T. ($72,149.40), R.B. ($17, 487), and K.O. ($3,346),

(3) compliance with all terms and conditions of his criminal probation, (4)

successful completion of a substance-abuse and addiction-treatment program

approved by the Ohio Lawyers Assistance Program (“OLAP”), and (5)

participation in an addiction-treatment program up to and through any attempt to

seek reinstatement.

{¶ 15} In support of this sanction, the board cites two cases in which we

have indefinitely suspended attorneys who misappropriated funds while serving in

positions of trust. While serving as a court-appointed guardian, one attorney made

unauthorized withdrawals of more than $20,000 from his ward’s account, used the

funds to pay his personal expenses, made false statements in documents filed with

the probate court, and pleaded guilty to one fifth-degree-felony charge of theft.

Disciplinary Counsel v. Zapor, 127 Ohio St.3d 372, 2010-Ohio-5769, 939 N.E.2d

1230, ¶ 3-4. The aggravating and mitigating factors in Zapor were comparable to

those present here, except that the parties did not stipulate and Zapor failed to prove

that his alcohol-abuse and gambling problems contributed to his misconduct. Id. at

¶ 7-9. Because he had confessed to the misappropriation, he seemed genuinely

contrite, and his testimony suggested that he had taken steps to resolve his

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January Term, 2016

substance-abuse and gambling problems, we adopted the board’s recommended

sanction of an indefinite suspension with no credit for time served under his interim

felony suspension. Id. at ¶ 12. We also conditioned his reinstatement on the

extension of his OLAP contract and his compliance with the terms of that contract.

Id.

{¶ 16} And in Disciplinary Counsel v. Anthony, 138 Ohio St.3d 129, 2013-

Ohio-5502, 4 N.E.3d 1006, we indefinitely suspended Anthony for

misappropriating at least $118,000 from his employer to pay his personal expenses

and to maintain his gambling addiction. Id. at ¶ 4. Although Anthony could not

demonstrate that his pathological gambling disorder was a mitigating factor

because he had only begun treatment three months before his disciplinary hearing,

we nonetheless accorded it some mitigating effect. Id. at ¶ 13. That factor,

combined with his disclosure of his misconduct to the disciplinary board, his

cooperation in the disciplinary investigation, and his criminal sentence for his

resulting grand-theft conviction, led us to adopt the board’s recommended sanction

of an indefinite suspension. Id. at ¶ 13, 18-19.

{¶ 17} Having considered Thomas’s misconduct, the applicable

aggravating and mitigating factors, and the sanctions imposed for comparable

misconduct, we agree that the appropriate sanction in this case is an indefinite

suspension. But given the magnitude of his theft from the vulnerable people he was

appointed to protect, his pattern of misconduct over a period of more than six years,

and his failure to make full restitution, we decline to grant him credit for the time

served under his interim felony suspension.

{¶ 18} Accordingly, James William Thomas Jr. is indefinitely suspended

from the practice of law in Ohio and, in addition to the requirements of Gov.Bar R.

V(25), his reinstatement shall be conditioned upon his (1) completion of his period

of incarceration, (2) payment of restitution for the benefit of former clients E.T.

($72,149.40), R.B. ($17,487), and K.O. ($3,346) as set forth in the restitution order

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SUPREME COURT OF OHIO

in his criminal case, (3) compliance with all terms and conditions of his criminal

probation, (4) successful completion of an OLAP-approved substance-abuse and

addiction-treatment program, (5) execution of an OLAP contract for a term to be

determined by OLAP, and (6) full compliance with all treatment recommendations

of OLAP and his treating professionals. Costs are taxed to Thomas.

Judgment accordingly.

PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ., concur.

O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., dissent and would

permanently disbar the respondent.

_________________

Scott J. Drexel, Disciplinary Counsel, for relator.

Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, for

respondent.

_________________

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