The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Columbus Bar Assn. v. Bulson, Slip Opinion No. 2020-Ohio-3001.]
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. 2020-OHIO-3001
COLUMBUS BAR ASSOCIATION v. BULSON.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Columbus Bar Assn. v. Bulson, Slip Opinion No.
2020-Ohio-3001.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
Conditionally stayed 18-month suspension.
(No. 2019-1373—Submitted March 11, 2020—Decided May 21, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2018-025.
__________________
Per Curiam.
{¶ 1} Respondent, Douglas Whitney Bulson Jr., of Columbus, Ohio,
Attorney Registration No. 0020983, was admitted to the practice of law in Ohio in
1973. On December 2, 2005, we suspended his license for his failure to timely
register for the 2005-2007 biennium, and we reinstated it ten days later. In re
Attorney Registration Suspension of Bulson, 107 Ohio St.3d 1431, 2005-Ohio-
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6408, 838 N.E.2d 671; In re Bulson, 107 Ohio St.3d 1705, 2006-Ohio-13, 840
N.E.2d 209.
{¶ 2} In an April 23, 2019 amended complaint, relator, Columbus Bar
Association, charged Bulson with neglect of three client matters, improper client-
trust-account management, and failure to cooperate in the ensuing disciplinary
investigations. The parties entered into stipulations of fact and some misconduct
and submitted 44 stipulated exhibits.
{¶ 3} At a July 17, 2019 hearing, a panel of the Board of Professional
Conduct heard testimony from Bulson, his treating psychologist, and his daughter.
Following that hearing, the board issued a report finding that Bulson committed
all but two of the alleged rule violations and recommending that he be suspended
from the practice of law for 18 months, fully stayed on conditions focused on
maintaining his mental health.
{¶ 4} Relator objects to the board’s recommendation, arguing (1) that
Bulson has failed to demonstrate that his mental-health impairments have been
mitigated and (2) that an actual suspension is necessary to protect his clients from
additional acts of neglect.
{¶ 5} For the reasons that follow, we overrule relator’s objection and
adopt the board’s findings of misconduct and recommended sanction.
Misconduct
Count One: The Pike Matter
{¶ 6} Following a motor-vehicle accident in August 2012, Valerie Pike
retained Bulson to pursue a personal-injury claim and executed a one-third,
contingent-fee agreement. Bulson filed a lawsuit on Pike’s behalf in August
2014. He settled the matter for $7,500, and he deposited the proceeds into his
client trust account on March 2, 2016. Several weeks later, Pike executed a
settlement statement authorizing Bulson to make an initial distribution of
$1,924.37 to her, to pay his $2,500 fee, and to retain $3,075.63 to settle her
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subrogated medical bills and to pay a court-reporter fee. But Bulson did not take
any action to resolve Pike’s debts.
{¶ 7} In September and December 2016, Bulson cashed checks that he had
issued to himself, dropping the balance of his client trust account to $2,750.64,
where it remained through January 2018. He did not create or retain required
client-trust-account records, and he did not respond to Pike’s efforts to
communicate with him regarding the status of her case. Approximately two
weeks after Bulson’s disciplinary hearing, he submitted evidence showing that he
had paid the court reporter, settled and paid Pike’s subrogated medical bills, and
issued a $2,676.27 check to Pike.
{¶ 8} Bulson stipulated and the board found that his conduct violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(3) (requiring a lawyer to keep a client reasonably
informed about the status of a matter), 1.4(a)(4) (requiring a lawyer to comply as
soon as practicable with reasonable requests for information from a client), and
1.15(a)(2), (3), and (5) (requiring a lawyer to maintain certain records regarding
the funds held in the lawyer’s trust account, perform monthly reconciliations of
that account, and retain those records for a minimum of seven years).
Count Two: The Hall Matter
{¶ 9} In January 2016, Carla Hall hired Bulson to represent her in a
juvenile-custody matter at a rate of $250 an hour and paid him an initial retainer
of $1,500 plus $100 for the filing fee. Although Bulson should have deposited
Hall’s payment into his client trust account, to the best of his recollection, he
cashed her check. By April 6, Bulson had spent 1.5 hours preparing several
documents on Hall’s behalf. Although he had her sign those documents, he did
not file them and he performed no additional work on her case. He also failed to
respond to her repeated efforts to communicate about the status of her case, and
he did not honor her request for a refund until December 2018.
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{¶ 10} Bulson stipulated and the board found that his conduct violated
Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 1.15(a) (requiring a lawyer to hold funds
belonging to a client or third party in a client trust account separate from his own
property), and 1.16(e) (requiring a lawyer to promptly refund any unearned fee
upon the lawyer’s withdrawal from employment).
Count Four: The Montgomery Matter
{¶ 11} In June 2015, Teddy and Birdie Montgomery hired Bulson to
represent them in a personal-injury case. After their first meeting with Bulson,
the Montgomerys’ telephone calls and text messages to Bulson often went
unanswered and Bulson did not initiate any communication.
{¶ 12} In November 2017, the Montgomerys filed a grievance against
Bulson with disciplinary counsel. In his initial response to that grievance in April
2018, Bulson disclosed that he had filed a lawsuit on the Montgomerys’ behalf,
but he had not yet perfected service on the defendant; he indicated that he would
instruct the clerk of court to serve the complaint by ordinary mail, which he did in
May 2018—approximately one year after he filed the lawsuit. After disciplinary
counsel transferred the grievance to relator, relator ascertained that the
Montgomerys were prepared to hire new counsel. Although relator asked Bulson
to return the Montgomerys’ file on multiple occasions, he produced only publicly
available court documents, and he eventually reported that he was unable to locate
their medical records or the only copy of their handwritten diary.
{¶ 13} Bulson stipulated and the board found that his conduct violated
Prof.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), and 1.16(d) (requiring a lawyer
withdrawing from representation to take steps reasonably practicable to protect a
client’s interest, including the prompt delivery of client papers and property).
Counts Three and Five: Failure to Cooperate
{¶ 14} Bulson stipulated that he did not timely respond to relator’s letters
of inquiry in the Pike, Hall, and Montgomery matters. He requested and received
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two continuances before appearing for a deposition in December 2017, and a
second deposition scheduled for April 26, 2018, was canceled due to his
purported illness after he left a telephone message at the last minute. Although
Bulson stipulated that his conduct with respect to the Pike and Hall matters
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), he did not stipulate that his conduct with respect to the
Montgomery matter violated any rules. The board found that his failure to
cooperate in relator’s investigations constituted a single violation of Prof.Cond.R.
8.1(b) and unanimously dismissed two additional rule violations alleged in count
five of relator’s complaint.
{¶ 15} We adopt the board’s findings of misconduct with respect to counts
one through five of relator’s complaint.
Recommended Sanction
{¶ 16} When considering the appropriate sanction for Bulson’s
misconduct, the board considered all relevant factors, including the ethical duties
that Bulson violated, the aggravating and mitigating factors listed in Gov.Bar R.
V(13), and the sanctions imposed in similar cases.
{¶ 17} The board found that five aggravating factors are present—prior
discipline, a pattern of misconduct, multiple offenses, lack of cooperation in the
disciplinary process prior to the filing of the amended complaint, and
vulnerability and resulting harm to victims of the misconduct. See Gov.Bar R.
V(13)(B)(1), (3), (4), (5), and (8). As for mitigating factors, the board found that
Bulson had not acted with a dishonest or selfish motive, had exhibited a
cooperative attitude toward the disciplinary proceeding after the amended
complaint was filed (by entering into stipulations, appearing at the hearing, and
expressing remorse), and had submitted evidence of his good character and
reputation. See Gov.Bar R. V(13)(C)(2), (4), and (5). Despite relator’s arguments
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to the contrary, the board also found that Bulson had met his burden of
establishing the existence of a qualifying mitigating disorder pursuant to Gov.Bar
R. V(13)(C)(7) through the testimony of his treating psychologist, Joseph W.
Shannon III, Ph.D.
{¶ 18} The parties did not agree on a recommended sanction.
{¶ 19} The board found that Bulson’s conduct most closely resembles the
conduct at issue in two cases he cited to support his argument in favor of a fully
stayed one-year suspension—Disciplinary Counsel v. Brueggeman, 128 Ohio
St.3d 206, 2010-Ohio-6149, 943 N.E.2d 509, and Disciplinary Counsel v.
Oberholtzer, 136 Ohio St.3d 314, 2013-Ohio-3706, 995 N.E.2d 217. Like
Bulson, Brueggeman neglected several client matters, failed to reasonably
communicate with the affected clients, and refused to cooperate in the resulting
disciplinary investigations until after a formal complaint was filed against him.
Although Brueggeman had engaged in a pattern of misconduct involving multiple
offenses, we also found that he had no history of prior discipline and had
exhibited no dishonest or selfish motive, cooperated in proceedings once the
complaint was filed, submitted evidence of his good character and reputation, and
established his diagnosed dysthymia as a mitigating factor. Brueggeman at ¶ 22,
25.
{¶ 20} Similarly, Oberholtzer engaged in a pattern of misconduct by
neglecting two client matters, failing to promptly comply with the clients’
reasonable requests for information, failing to deposit an unearned fee into his
client trust account, and failing to cooperate in the early stages of the disciplinary
proceedings against him. But mitigating factors included no prior discipline,
absence of a selfish or dishonest motive, and Oberholtzer’s eventual cooperation
in the disciplinary proceedings. Oberholtzer also presented evidence that serious
personal and family medical issues had affected his ability to properly represent
his clients, and he expressed sincere remorse for his shortcomings.
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{¶ 21} Despite the similarities between this case and Brueggeman and
Oberholtzer, the board found that Bulson’s conduct was sufficiently egregious to
warrant a more severe sanction, at least in part because he waited until after his
disciplinary hearing to pay Pike’s bills and distribute the remaining proceeds of
her settlement to her. Therefore, the board recommends that we suspend Bulson
from the practice of law for 18 months, fully stayed on the conditions that he
remain in treatment with Dr. Shannon, comply with the two-year mental-health
contract he entered into with the Ohio Lawyers Assistance Program (“OLAP”) in
January 2019, serve a one-year period of monitored probation focused on his
compliance with client-trust-account requirements, and engage in no further
misconduct.
Relator’s Objection to the Board’s Findings and Recommended Sanction
{¶ 22} Relator objects to the board’s determination that Bulson’s major
depression qualified as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7).
Because relator believes that Bulson’s mental health remains impaired, it asserts
that he should be required to serve a period of actual suspension from the practice
of law for some period of time to protect his clients from the risk of future harm.
{¶ 23} For a mental disorder to qualify as a mitigating factor under
Gov.Bar R. V(13)(C)(7), a respondent must present evidence of (1) a diagnosis of
the disorder by a qualified healthcare professional, (2) a determination that the
disorder contributed to the misconduct, (3) a sustained period of successful
treatment, and (4) a prognosis from a qualified healthcare professional that the
attorney will be able to return to the competent, ethical, and professional practice
of law under specified conditions.
{¶ 24} Here, relator contends that Bulson has failed to present sufficient
evidence to establish that he has achieved a sustained period of successful
treatment for his disorder and that he is currently capable of engaging in the
competent, ethical, and professional practice of law. Relator asserts that the
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board’s report conflates the commencement of therapeutic interventions with the
effective implementation of those interventions, and relator suggests that those
therapies have not been proved effective—but that those or other proposed
therapies may prove effective at some point in the future. In addition, relator
asserts that there has been no showing that the support that Bulson’s family has
provided to help organize and maintain his law practice can be sustained over
time. We disagree with relator’s interpretation of the evidence.
{¶ 25} At Bulson’s disciplinary hearing, Dr. Shannon testified that he had
diagnosed Bulson with major depression with melancholia and severe attention-
deficit disorder and that Bulson’s depression had contributed to cause the
misconduct at issue in this case. He also opined that Bulson had undergone a
sustained period of successful treatment that included cognitive behavioral
therapy and medication prescribed by a psychiatrist.
{¶ 26} Dr. Shannon reported that Bulson had been a model patient and
very engaged in the therapeutic process. He also reported that Bulson’s
symptoms had improved—he was not as depressed and his sleep had improved
significantly—and that getting more sleep had improved his energy and his
abilities to focus and concentrate.
{¶ 27} Dr. Shannon further explained, “I believe that he’s had a period
now of at least a year where he has functioned at a much higher level and where
his symptoms are much better controlled, at least I would say moderately better
controlled, that he’s functioning at a much higher level.” And when asked
whether he had an opinion about whether Bulson will be able to return to the
competent, ethical, professional practice of law as required by Gov.Bar R.
V(13)(C)(7)(d), Dr. Shannon responded, “If he’s compliant with treatment, I feel
very confident that he can do that.”
{¶ 28} When asked what conditions he would place on Bulson’s ability to
practice competently and ethically, Dr. Shannon responded that Bulson should
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continue his current course of treatment, obtain a second opinion about his
medication protocol from Dr. David Scandinaro, and pursue screening to
determine whether he is a candidate for several alternative therapies. Dr. Shannon
explained that although Bulson’s treating psychiatrist felt that his current
treatment protocol was “as good as it is going to be,” he personally believed that a
more innovative psychiatrist like Dr. Scandinaro might be able help Bulson to
obtain even more relief with fewer side effects. Contrary to relator’s assertions,
we find that the opportunity to pursue additional therapies that may one day prove
more effective than Bulson’s current course of treatment does not negate the
sustained period of successful treatment that he has already achieved.
{¶ 29} In addition, the board noted that Bulson’s family members have
assisted him with his treatment and with the organization and management of his
office. His son-in-law, a certified paralegal, has assisted him with organizing his
office, updating his files, and meeting deadlines. Bulson’s wife, a retired licensed
social worker, communicates directly with Dr. Shannon about any changes in
Bulson’s behavior and has assisted him with his legal billing. And his daughter, a
chiropractor, attends to Bulson’s dietary needs to control another medical
condition, and she has helped to organize his office. In addition to checking in on
Bulson by telephone every day, she spends a couple of hours with him in his
office a couple of days a week to assist with filing and other tasks. She testified
that she “absolutely” plans to continue that practice on an ongoing basis and that
she did not anticipate any changes in the frequency of her interactions with her
father. Although relator questions whether Bulson’s family can sustain those
efforts over time, we find no reason to question their intention or ability to assist
Bulson going forward. On these facts, we agree that Bulson has established his
diagnosed major depression as a mitigating factor pursuant to Gov.Bar R.
V(13)(C)(7).
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{¶ 30} Relator maintains that regardless of whether Bulson’s mental
disorder is a mitigating factor, a one-year suspension from the practice of law,
with no stay and with conditions on reinstatement, is necessary to protect his
clients from further neglect. In support of that recommendation, relator cites
Lorain Cty. Bar Assn. v. Weir, 156 Ohio St.3d 566, 2019-Ohio-2151, 130 N.E.3d
275, and Disciplinary Counsel v. Rumizen, 156 Ohio St.3d 575, 2019-Ohio-2519,
130 N.E.3d 283.
{¶ 31} In Weir, we imposed a one-year suspension with the final six
months conditionally stayed on an attorney who had engaged in misconduct
comparable to Bulson’s by neglecting two client matters, failing to reasonably
communicate with clients, failing to deliver funds and other property to a client
upon the termination of his representation, and failing to cooperate in a
disciplinary investigation. And in Rumizen, we imposed a two-year suspension
with 18 months conditionally stayed on an attorney who had engaged in a pattern
of dishonesty to deprive another attorney of fees to which the attorney was
entitled under a fee-sharing arrangement. Although we have long recognized that
a course of conduct involving dishonesty warrants an actual suspension from the
practice of law, see, e.g., Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d
187, 191, 658 N.E.2d 237 (1995), Bulson has neither been charged with nor found
to have engaged in dishonest conduct.
{¶ 32} In rejecting relator’s proposed sanction below, the board
distinguished Weir and Rumizen from this case on the ground that Weir and
Rumizen did not involve findings of a mental-health disorder contributing to the
misconduct. While Rumizen attempted and failed to establish the existence of a
mitigating mental-health disorder, the only suggestion in the board’s report or our
decision that Weir may have suffered from a mental-health disorder was our order
that he submit to an OLAP assessment and comply with all treatment
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recommendations as part of his sanction. See Weir at ¶ 28. We find that the
board’s distinction is sound.
{¶ 33} Based on the foregoing, we find that Bulson has established his
major depression as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7). And
having weighed Bulson’s misconduct, the aggravating and mitigating factors
found by the board, and the precedent cited by both parties, we are persuaded that
an 18-month suspension, fully stayed on the conditions recommended by the
board—with the additional conditions that he (1) waive the doctor-patient
privilege with respect to each of his healthcare professionals to permit relator to
verify that his disorder has stabilized with treatment and (2) meet with his practice
monitor once a month or more frequently if the monitor deems it necessary—will
best support Bulson’s mental-health recovery and protect his clients from future
harm.
Conclusion
{¶ 34} Accordingly, we overrule relator’s objection to the board’s findings
and recommended sanction and suspend Douglas Whitney Bulson Jr. from the
practice of law for 18 months, fully stayed on the conditions that Bulson (1)
continue to participate in mental-health treatment with Dr. Joseph W. Shannon III
at an interval directed by Dr. Shannon and comply with all treatment
recommendations, (2) waive the doctor-patient privilege with respect to each of
his healthcare professionals to permit relator to verify that Bulson’s disorder has
stabilized with treatment, (3) remain in compliance with his OLAP contract, (4)
serve a one-year period of monitored probation in accordance with Gov.Bar R.
V(21) focused on his compliance with the rules governing proper client-trust-
account management, (5) meet with his practice monitor once a month or more
frequently if the monitor deems necessary, and (6) engage in no further
misconduct. If Bulson fails to comply with any of these conditions, the stay will
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be lifted and he will serve the full 18-month suspension. Costs are taxed to
Bulson.
Judgment accordingly.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only.
_________________
Kent R. Markus, Bar Counsel; Bricker & Eckler, L.L.P., and Randolph C.
Wiseman; and John B.C. Porter, for relator.
Montgomery Jonson, L.L.P., George D. Jonson, and Lisa M. Zaring, for
respondent.
_________________
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