Disciplinary Counsel v. Peterson
| Decision Date | 06 December 2012 |
| Docket Number | No. 2011–0996.,2011–0996. |
| Citation | 135 Ohio St.3d 110,984 N.E.2d 1035 |
| Parties | DISCIPLINARY COUNSEL v. PETERSON. |
| Court | Ohio Supreme Court |
OPINION TEXT STARTS HERE
Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa, Assistant Disciplinary Counsel, for relator.
McGinty, Hilow, and Spellacy, Co., L.P.A., and Mary L. Cibella, Cleveland, for respondent.
{¶ 1} Respondent, Paul Nickolas Peterson of Chagrin Falls, Ohio, Attorney Registration No. 0075730, was admitted to the practice of law in Ohio in 2002. In 2011, relator, disciplinary counsel, filed a complaint alleging multiple violations of the Rules of Professional Conduct. The complaint alleges that Peterson (1) stole funds from a corporate client, (2) improperly entered into a business transaction with the client without properly advising the client of the possible conflicts and without obtaining the client's informed consent, and (3) failed to safeguard the client's funds. A panel of the Board of Commissioners on Grievances and Discipline reviewed the evidence in this case and based upon the evidence and the stipulations of the parties, recommended that Peterson be indefinitely suspended from the practice of law in Ohio with no credit for the period Peterson was subject to the interim felony suspension issued by this court in 2010, which stemmed from the misconduct underlying this case. The board adopted the panel's findings of fact and conclusions of law, but recommends a sanction of disbarment. We adopt the panel's recommendation of indefinite suspension with specified conditions.
{¶ 2} On March 15, 2012, relator and Peterson filed agreed stipulations as to misconduct and violations of the Ohio Rules of Professional Conduct.
{¶ 3} In February 2008, Peterson prepared documents to create a limited-liability corporation entitled LB2 on behalf of his client Linda Mae Gabriel. The purpose of LB2 was to buy, refurbish, and sell homes to supplement Gabriel's income. Peterson and Gabriel were signatories on the bank account for LB2.
{¶ 4} In 2008 and 2009, Peterson paid some of his personal expenses from the LB2 account, including his credit-card bills and expenses for personal trips. During this same time period, Peterson, without authorization, paid himself $1,200 a month from the LB2 account.
{¶ 5} The panel and the board found by clear and convincing evidence, and we agree, that Peterson violated Prof.Cond.R. 1.7(a)(2) (), 1.8(a)(1) (), 1.8(a)(2) (), 1.8(a)(3) (), and 1.15(a) ().
{¶ 6} In March 2010, Gabriel filed a civil action against Peterson alleging legal malpractice, fraudulent misrepresentation, and civil theft.
{¶ 7} In November 2010, Peterson pled no contest to a charge of fourth-degree felony theft, pursuant to allegations contained in an information filed in September 2010 in the Cuyahoga County Court of Common Pleas that alleged that Peterson had stolen funds from a corporate client between April 2008 and March 2009 in the amount of at least $5,000 and less than $100,000, in violation of R.C. 2913.02(a)(3). Peterson was sentenced to 30 days in jail and five years of community control and was ordered to pay restitution in the amount of $80,000.
{¶ 8} We suspended Peterson from the practice of law for an interim period due to the felony conviction. 127 Ohio St.3d 1453, 2010-Ohio-5974, 938 N.E.2d 40.
{¶ 9} Peterson stipulated that his conduct violated Prof.Cond.R. 8.4(b) (), 8.4(c) (), and 8.4(h) (). The panel and the board found by clear and convincing evidence, and we agree, that Peterson violated the Rules of Professional Conduct as stipulated.
{¶ 10} The board considered this matter on June 8, 2012, and adopted the panel's findings of fact and conclusion of law. The board, however, amended the sanction recommended by the panel and recommended instead that Peterson be permanently disbarred from the practice of law in the state of Ohio. The board further recommended that the cost of these proceedings be taxed to Peterson.
{¶ 11} In considering the appropriate sanction for Peterson's misconduct, the board weighed the aggravating and mitigating factors listed in BCGD Proc.Reg. 10(B). The board also considered sanctions imposed in similar cases. See Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. It determined that disbarment was the appropriate sanction. Peterson filed objections and argues that the court should instead impose an indefinite suspension. We sustain his objection to the sanction.
{¶ 12} In aggravation, the board found that Peterson had a dishonest and selfish motive and that the victim of his misconduct was vulnerable and had suffered harm.
{¶ 13} The parties have stipulated that three BCGD Proc.Reg. 10(B)(2) mitigating factors are present. First, Peterson cooperatedin the disciplinary investigation. Second, he self-reported his misconduct to the Office of Disciplinary Counsel. Third, Peterson has received other penalties or sanctions.
{¶ 14} Further, the board found that Peterson has made the restitution ordered by the court upon his theft conviction. The amount of restitution made was determined by agreement in resolving the criminal matter.
{¶ 15} Additionally, we find that the following mitigating factors are present. Peterson has accepted responsibility for his wrongdoing and has expressed remorse for his actions. He has not been previously disciplined. “Our precedent indicates that a prior interim felony suspension has not heretofore been considered as a prior disciplinary offense.” Disciplinary Counsel v. Cantrell, 130 Ohio St.3d 46, 2011-Ohio-4554, 955 N.E.2d 950, ¶ 16, citing Disciplinary Counsel v. Ulinski, 106 Ohio St.3d 53, 2005-Ohio-3673, 831 N.E.2d 425, ¶ 1 and 14 (); Disciplinary Counsel v. O'Malley, 126 Ohio St.3d 443, 2010-Ohio-3802, 935 N.E.2d 5, ¶ 1 and 10 (same); Disciplinary Counsel v. Gittinger, 125 Ohio St.3d 467, 2010-Ohio-1830, 929 N.E.2d 410, ¶ 1 and 41 (same); Disciplinary Counsel v. Andrews, 124 Ohio St.3d 523, 2010-Ohio-931, 924 N.E.2d 829, ¶ 1 and 18 (same); Disciplinary Counsel v. Butler, 128 Ohio St.3d 319, 2011-Ohio-236, 943 N.E.2d 1025, ¶ 1 and 3 (same). Finally, Peterson has demonstrated that aside from the present matter, he has a reputation in the community for being of good character.
{¶ 16} Additionally, Peterson asserts that his mental disability should be considered as a mitigating factor. BCGD Proc.Reg. 10(B)(2)(g) provides that a mental disability may be considered in mitigation of sanction where there has been (i) a diagnosis of a mental disability by a qualified health-care professional, (ii) a determination that the mental disability contributed to cause the misconduct, (iii) a sustained period of successful treatment, and (iv) a prognosis from a qualified health-care professional that the attorney will be able to return to competent, ethical professional practice under specified conditions.
{¶ 17} In support of his assertion, Peterson offered the testimony and reports of his treating health-care professionals, Jane Miller Hellwig, Ph.D., a licensed psychologist who began treating Peterson for recurrent depression in March 2006, and Alan Castro, M.D., a psychiatrist to whom Dr. Hellwig referred Peterson in January 2007, when his treatment required medication. Dr. Castro also diagnosed Peterson with depression. In May 2011, Dr. Castro diagnosed Peterson with bipolar mood disorder.
{¶ 18} Peterson did not disclose his legal problems to either Dr. Hellwig or Dr. Castro until after the theft was discovered. Moreover, even after disclosing his legal problems, Peterson failed to disclose the true nature of his misconduct to Drs. Hellwig and Castro. Upon learning the actual extent of Peterson's actions, Dr. Hellwig opined that it was possible that Peterson's mental condition contributed to his misconduct. Dr. Castro's opinion was also in terms of possibilities.
[I]t is true that we ordinarily accept the panel's and board's conclusions as to the propriety of an attorney's conduct or the appropriate sanction, and to that extent, our decisions reflect deference to their expertise. But as the ultimate arbiter of misconduct and sanctions in disciplinary cases, this court is not bound by factual and legal conclusions drawn by either the panel or the board. See Cincinnati Bar Assn. v. Powers, 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 21. Accord Disciplinary Counsel v. Furth (2001), 93 Ohio St.3d 173, 181, 754 N.E.2d 219;Ohio State Bar Assn. v. Reid (1999), 85 Ohio St.3d 327, 330, 708 N.E.2d 193....
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