Disciplinary Counsel v. Walton (Slip Opinion) , 147 Ohio St. 3d 357 ( 2016 )

[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
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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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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January Term, 2016
“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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