The opinion
Lundberg Stratton, J.,
dissenting.
{¶ 14} Because I believe that the respondent’s actions and inactions in both cases relate to the same course of conduct caused by his mental illness, I would remand both cases to the panel to consider all mitigating evidence of mental illness in both cases.
{¶ 15} Respondent was before this court previously in Cleveland Bar Assn. v. McClain, 95 Ohio St.3d 488 , 2002-Ohio-2428 , 769 N.E.2d 390 (‘McClain I”) for violating DR 6-101 (A)(3) (a lawyer shall not neglect an entrusted legal matter), DR 7-101(A)(l) (a lawyer shall not intentionally fail to seek the lawful objectives of a client), DR 7-101(A)(2) (a lawyer shall not fail to carry out a contract of professional employment), DR 7-101(A)(3) (a lawyer shall not prejudice or damage a client), DR 9-102(B)(4) (a lawyer shall promptly deliver to the client funds or property to which the client is entitled), and Gov.Bar R. V(4)(G) (no attorney shall neglect or refuse to assist or testify in a disciplinary investigation or hearing). At that time, respondent was indefinitely suspended from the practice of law and ordered to pay restitution. The infractions in Cleveland Bar Assn. v. McClain I took place in 1993, 1994, and 1999.
{¶ 16} Sometime in 1997, respondent testified, he began to feel that his memory was slipping, so he consulted his physician. His physician dismissed the concerns, telling him that everyone forgets things from time to time. Respondent continued practicing law. In late 1999, respondent was a prosecutor for the city of East Cleveland and was on his way to court when he broke down in tears and pulled his car off to the side of the road. Respondent called the Cleveland Bar Association because he was under the impression that it had a program for assistance. The bar association informed respondent that it had no such program *252 but directed him to Dr. Donald Weinstein, a psychologist. Before even pulling back onto the road, respondent called Dr. Weinstein and made an appointment.
{¶ 17} Dr. Weinstein began treating respondent on January 11, 2000, and diagnosed respondent with major depression. After several sessions, Dr. Weinstein believed that respondent’s depression was in part a side effect of medication respondent was taking for high blood pressure, so Dr. Weinstein sent respondent to his physician. Respondent’s physician lowered the dose of his blood pressure medication, and Dr. Weinstein told respondent that he would probably feel better in a couple of months. Respondent continued his practice.
{¶ 18} After respondent realized that he was not feeling better, he spoke with a judge, who recommended that he call the Ohio Lawyers Assistance Program (“OLAP”). Respondent contacted OLAP and was ultimately referred to the Cleveland Clinic Psychiatry Department, where he was treated by Dr. Jeffery Hutzler.
{¶ 19} In a November 2002 letter, Dr. Hutzler stated that based on his examination of respondent and review of respondent’s medical history, it was his opinion with a reasonable degree of medical certainty that respondent suffered from a mental illness. He also believed that respondent’s existing mental illness substantially impaired his ability to practice law, even though he had shown dramatic improvement. Dr. Hutzler also stated that respondent “has a substantial disorder [of] mood and with that memory that grossly impairs judgment, behavior and capacity to recognize certain kinds of reality and his ability to meet ordinary demands of life, particularly his professional life.” Finally, Dr. Hutzler concluded that respondent “certainly has been substantially and severely impaired by his mental illness since 1998 or 1997.”
{¶ 20} In 2002, the Board of Commissioners on Grievances and Discipline considered the charges that are the subject of the present case and concluded that respondent’s actions constituted three violations of DR 6-101(A)(3) (a lawyer shall not neglect a legal matter entrusted to him) and one violation of Gov.Bar R. V(4)(G) (no attorney shall neglect or refuse to assist or testify in a board investigation or hearing). The board recommended an indefinite suspension upon conditions, imposed retroactively to be served concurrently with the indefinite suspension imposed June 5, 2002.
{¶ 21} Respondent contends that his actions in neglecting client matters in McClain I and in this case were caused by his mental illness, major depressive disorder. Respondent submits that this causal connection has been established through the reports and opinions of Dr. Bea, Dr. Hutzler, and Dr. Weinstein. I agree.
*253 {¶ 22} Dr. Hutzler concluded that respondent has been substantially and severely impaired by his mental illness since 1997 or 1998. The allegations of neglect in the present case concerned conduct in 1998 through 2001.
{¶ 23} Gov.Bar R. V(7) sets forth the procedure for a mental-illness suspension and incorporates the definition of mental illness set forth in R.C. 5122.01(A), which provides: “ ‘Mental illness’ means a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.”
{¶ 24} Gov.Bar R. V(7)(C) provided: “If the complaint or answer alleges existing mental illness unsupported by a journal entry of a court of competent jurisdiction or mental illness otherwise is placed in issue, the Board or hearing panel, on its own motion or on motion by either party, may order a medical or psychiatric examination of respondent by one or more physicians designated by the Board or hearing panel.” (Emphasis added.) 64 Ohio Official Reports XCIX.
{¶ 25} Because respondent has a diagnosed mental illness that dates back to 1997 or 1998, he was eligible for a mental illness suspension under Gov.Bar R. V(7) when he responded to the Cleveland Bar Association’s Notice of Intent and Draft Complaint in 2000, notifying the bar association that he was suffering from depression. The Cleveland Bar Association failed to proceed in accordance with Gov.Bar R. V(7)(C), which allows for mental illness suspensions. In light of this failure, I believe that to use respondent’s prior disciplinary case as an aggravating factor in determining a sanction in this case is unwarranted and flies in the face of the enlightened approach to mental illness intended by Gov.Bar R. V(7).
{¶ 26} This is not a case where respondent refused to acknowledge that he had a mental illness or refused to seek treatment for that mental illness. Respondent reached out to the bar association and attempted to find help. Sadly, our court had not yet established the mental health treatment component of the Ohio Lawyers Assistance Program, nor had we yet amended Gov.Bar R.V(7), effective February 1, 2003, to allow mental illness to be raised at any stage of the proceedings. In other words, our profession and our disciplinary system did not yet have the tools in place to deal with respondent’s mental illness. We should not punish respondent for our slow progress in this area.
{¶ 27} Respondent’s neglect of client matters in the current case occurred during his severe depression. Respondent’s actions and inactions in this case and some of his actions and inactions in the former case were caused by his major depressive,disorder. This causal connection was established through the reports and opinions of Dr. Bea, Dr. Hutzler, and Dr. Weinstein.
{¶ 28} I agree with the majority that the expedited procedure for suspending the license of an attorney with mental illness exists for the protection of the public, not as a means for an attorney to avoid disciplinary action. However, in *254 this case, I believe that respondent’s mental illness was a major mitigating factor, particularly when his misconduct resulted from neglect, which is one of the major symptoms of a depressive disorder — the inability to act. As respondent’s psychiatrist, Dr. Weinstein, wrote, “The paradox about Depression is that it becomes incapacitating and overwhelming for the individual suffering. The simple function of returning phone calls; writing documents that were at one time familiar and simple become overwhelming and frustrating; the carrying out of daily routine functions that were [once] simple become action fraught with potential failure. Depression is self fulfilling as a disease.”
Robert J. Vecchio, Tina Wecksler and Ellen S. Mandell, for relator.
Mary L. Cibella, for respondent.
{¶ 29} I believe that respondent’s behavior in both cases relates to his mental illness, and I would remand the cause to the panel to consider all mitigating evidence of mental illness in both cases and to recommend a sanction based, appropriately on that evidence. Accordingly, I respectfully dissent.
Pfeifer, J., concurs in the foregoing dissenting opinion.