The opinion
Cook, J.,
dissenting. I agree with the majority’s decision to adopt the findings and conclusions of the board, but I respectfully dissent from the majority’s decision to impose a more lenient sanction than the board recommended. I do not believe that the majority should have assigned weight to respondent’s *465 depression as a mitigating circumstance in regard to the disciplinary violations that respondent committed in the Adkins matter. Depression symptoms of inattention or unawareness should not bear any mitigating weight in the application of the appropriate sanction in light of the explicit deceit and threats contained in respondent’s letter to Adkins.
The ABA Standards for Imposing Lawyer Sanctions provide that before aggravating or mitigating circumstances are considered, disbarment is appropriate for disciplinary violations of the character that respondent committed in the Adkins matter. See ABA Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions (1991 and Amend.1992), Standard 5.1. Under the ABA Standards, “[disbarment is generally appropriate when * * * a lawyer engages in * * * intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.” Standard 5.1.
After failing to open an escrow account on behalf of Adkins as he had agreed to do, and after mishandling the funds that were to be escrowed, respondent answered Adkins’s inquiry (about the location and status of the funds) with a misleading and threatening letter. For these acts, the panel and board determined that respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of DR 1-102(A)(4). A lawyer who engages in deceitful or dishonest conduct “has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity.” Standard 5.1, Commentary.
My initial determination of disbarment as the appropriate sanction would give way to the board’s lesser recommended sanction — indefinite suspension — due to the presence of several mitigating factors in this case. Respondent’s military service in Vietnam and his honorable discharge from the armed services attest to his positive character and reputation. His cooperative attitude toward the disciplinary proceedings, lack of prior disciplinary record, and effort to modify his questionable office practices are additional mitigating factors recognized in both the ABA Standards and the Board of Commissioners’ Proposed Guidelines for Imposing Lawyer Sanctions. Cf. ABA Standards, supra, Standard 9.32; Board of Commissioners on Grievances and Discipline, Proposed Rules and Regulations Governing Procedure on Complaints and Hearings, Section 10, Guidelines for Imposing Lawyer Sanctions, 87 Ohio St.3d xliv -xlvi.
I would, therefore, accept the board recommendation to indefinitely suspend respondent rather than disbar him. The majority’s decision to credit additional mitigation centers on its willingness to accept respondent’s depression as an explanation for respondent’s behavior in the Adkins matter. The majority concludes that due to respondent’s depression, “the possibility remains that *466 respondent actually was subjectively unaware of the numerous warning signs all around him that normally would have indicated problems with the IOLTA account.” (Emphasis added.)
The tone and language of respondent’s letter, however, belie the majority’s assertion that the respondent could have been “subjectively unaware” of what was happening. Respondent explicitly assured Adkins that there was nothing “untoward” or “out of the ordinary” happening with the funds, and explicitly threatened Adkins with a “nightmare” if respondent felt that Adkins was impugning his name or reputation.
I do not suggest that clinical depression may never constitute a mitigating factor under appropriate circumstances. And like the majority I believe that respondent’s battle with depression is genuine. However, due to the tone and content of the Adkins letter, I do not believe that respondent was “paralyzed into inaction” or was “subjectively unaware” of what was happening when he committed the disciplinary violations in the Adkins matter.
For these reasons, I would have accepted the board’s recommendation to indefinitely suspend respondent.
Moyer, C.J., and Pfeifer, J., concur in the foregoing dissenting opinion.