Disciplinary Counsel v. Walton

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

Disciplinary Counsel v. Walton, Slip Opinion No. 2016-Ohio-7468.]

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-7468

DISCIPLINARY COUNSEL v. WALTON.

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

may be cited as Disciplinary Counsel v. Walton, Slip Opinion No.

2016-Ohio-7468.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—

Conditionally stayed six-month suspension.

(No. 2016-0538—Submitted May 4, 2016—Decided October 27, 2016.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme

Court, No. 2015-054.

_______________________

Per Curiam.

{¶ 1} Respondent, Gerald Robert Walton of Independence, Ohio, Attorney

Registration No. 0003914, was admitted to the practice of law in Ohio in 1980. On

August 27, 2015, relator, disciplinary counsel, charged Walton with professional

misconduct arising from his failure to respond to two letters of inquiry and a

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subpoena compelling his appearance at a deposition seeking his explanation for two

overdrafts of his client trust account.

{¶ 2} A panel of the Board of Professional Conduct considered the cause on

the parties’ consent-to-discipline agreement. See Gov.Bar R. V(16).

{¶ 3} In the consent-to-discipline agreement, the parties stipulate that in

April 2015, Walton’s client trust account became overdrawn by more than $100 on

two separate occasions and remained at a negative balance for one or more days

until each of the transactions that caused the overdrafts was reversed. Although an

investigator for the Office of Disciplinary Counsel hand delivered two separate

letters of inquiry to Walton, he did not respond to either letter. He also failed to

comply with a hand-delivered subpoena compelling his appearance at a deposition.

{¶ 4} The parties agree that Walton’s conduct 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 Gov.Bar R.

V(9)(G) (prohibiting a lawyer from neglecting or refusing to assist in a disciplinary

investigation).

{¶ 5} The parties agree that the nature of his misconduct—failing to

cooperate in the underlying disciplinary investigation—is the sole aggravating

factor in this case. See Gov.Bar R. V(13)(B)(5). They also stipulate that relevant

mitigating factors include the absence of a prior disciplinary record, the absence of

a selfish or dishonest motive, Walton’s full and free disclosure to relator and his

eventual cooperation in the disciplinary proceeding, and his good character and

reputation apart from the charged misconduct. See Gov.Bar R. V(13)(C)(1), (2),

(4), and (5). In addition, they recognize that Walton has an underlying mental-

health disorder that contributed to his misconduct, has entered into a three-year

contract with the Ohio Lawyers Assistance Program (“OLAP”), and is actively

engaged in mental-health treatment. The parties have also submitted a

psychological report in which the evaluating psychologist concludes that Walton

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“currently possesses the necessary abilities to practice law ethically and

competently.” See Gov.Bar R. V(13)(C)(7).

{¶ 6} The parties stipulate that the appropriate sanction for Walton’s

misconduct is a six-month suspension, fully stayed on the conditions that he remain

in compliance with his OLAP contract and engage in no further misconduct. The

panel and the board found that the consent-to-discipline agreement conforms to

Gov.Bar R. V(16) and recommend that we adopt the agreement in its entirety.

{¶ 7} In support of this recommendation, the board noted that the sanctions

we have imposed for an attorney’s failure to cooperate in a disciplinary

investigation range from a public reprimand to an actual suspension from the

practice of law. See, e.g., Lorain Cty. Bar Assn. v. Paterson, 98 Ohio St.3d 446,

2003-Ohio-1638, 786 N.E.2d 874 (publicly reprimanding attorney with no prior

discipline who failed to respond to a disciplinary investigation when no aggravating

factors were present); Cleveland Bar Assn. v. James, 109 Ohio St.3d 310, 2006-

Ohio-2424, 847 N.E.2d 438 (imposing a one-year suspension on an attorney who

failed to cooperate in a disciplinary investigation and failed to respond to the formal

complaint filed against him). The parties and the board suggest that a term

suspension, fully stayed on conditions, is the best way to ensure that Walton’s

mental-health disorder will not cause additional harm to the public.

{¶ 8} We agree that Walton’s conduct violated Prof.Cond.R. 8.1(b) and

Gov.Bar R. V(9)(G) and that a six-month suspension, fully stayed on the

recommended conditions, is appropriate. Therefore, we adopt the parties’ consent-

to-discipline agreement.

{¶ 9} Accordingly, Gerald Robert Walton is hereby suspended from the

practice of law for six months, all stayed on the conditions that he fully comply

with his OLAP contract and engage in no further misconduct. If Walton fails to

comply with the conditions of the stay, the stay will be lifted and he will serve the

full six-month suspension. Costs are taxed to Walton.

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Judgment accordingly.

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

FRENCH, and O’NEILL, JJ., concur.

_________________

Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant

Disciplinary Counsel, for relator.

Koblentz & Penvose, L.L.C., Richard S. Koblentz, Nicholas E. Froning, and

Bryan L. Penvose, for respondent.

_________________

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