Disciplinary Counsel v. Burchinal , 133 Ohio St. 3d 38 ( 2012 )

[Cite as Disciplinary Counsel v. Burchinal, 133 Ohio St. 3d 38, 2012-Ohio-3882.]
DISCIPLINARY COUNSEL v. BURCHINAL.
[Cite as Disciplinary Counsel v. Burchinal,
133 Ohio St. 3d 38, 2012-Ohio-3882.]
Attorneys—Misconduct—Misappropriation of client funds but substantial
mitigation—Partially stayed license suspension.
(No. 2011-1426—Submitted November 2, 2011—Decided
August 29, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-020.
__________________
Per Curiam.
{¶ 1} Respondent, Christopher James Burchinal of Delaware, Ohio,
Attorney Registration No. 0071503, was admitted to the practice of law in Ohio in
1999. On February 1, 2011, relator, disciplinary counsel, filed a four-count
complaint charging Burchinal with misappropriating funds on three occasions in
violation of Prof.Cond.R. 1.15(c) (requiring a lawyer to deposit advance payments
of fees and expenses in a trust account for withdrawal as fees are earned and
expenses incurred), 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(h) (prohibiting
conduct that reflects adversely on the lawyer’s fitness to practice law).
Additionally, the complaint charged a failure to file a civil complaint on behalf of
clients within the statute of limitations and then deceiving his clients into
believing he was settling the case, thereby violating Prof.Cond.R. 1.3 (requiring a
lawyer to act with reasonable diligence and promptness in representing a client),
1.4(a)(3) (requiring a lawyer to keep a client reasonably informed about the status
of the matter), and 8.4(h).
SUPREME COURT OF OHIO
{¶ 2} A panel of the Board of Commissioners on Grievance and
Discipline held a hearing on June 19, 2011, and after considering the testimony
and exhibits and the parties’ stipulations, the panel found that Burchinal had
committed the charged misconduct. After its review of aggravating and
mitigating circumstances and the parties’ proposed sanctions, the panel
recommended a two-year license suspension with 12 months stayed on the
following conditions: that respondent serve the stayed suspension under
monitored probation, that he cooperate with the attorney assigned by relator as the
monitor for his reentry to practice, and that he complete his four-year contract
with the Ohio Lawyers Assistance Program (“OLAP”). The board adopted the
panel’s findings of fact, conclusions of law, and recommendation.
{¶ 3} Burchinal filed objections to the board’s recommendation, seeking
a two-year suspension with 18 months stayed on conditions, including that
Burchinal work with an attorney monitor. Relator responded by reiterating his
support for the sanction that he had recommended: an 18-month license
suspension with 12 months stayed on conditions. At oral argument, relator
expressed support for respondent’s suggested sanction of a two-year suspension
with 18 months stayed on conditions.
{¶ 4} We overrule the board’s recommendation and instead order that
Burchinal be suspended from the practice of law for two years, with the final 18
months stayed on the following conditions: that Burchinal serve 18 months of
monitored probation pursuant to Gov.Bar R. V(9) during the stay, that he
cooperate with the attorney assigned by relator as the monitor for his reentry to
practice, and that he complete his four-year OLAP contract.
Misconduct
1. Background
{¶ 5} After passing the bar, Burchinal worked for a personal-injury law
firm and then worked for the city of Reynoldsburg and the Columbus city
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January Term, 2012
attorney’s office. Next, Burchinal worked at an insurance-defense firm.
Dissatisfied at doing depositions but not trials, Burchinal pursued solo practice.
He then joined the law firm that became Firestone, Brehm, Hanson, Wolf &
Burchinal, L.L.P., in Delaware, where he worked from December 2004 to July
2010.
{¶ 6} At first serving at the firm as a partner in name only, with some
input but no vote on finances or other partnership matters, Burchinal was elevated
to full partner three months after joining the firm. As a full partner, Burchinal had
to assume responsibility for $3,800 of monthly firm expenses. At the same time,
his monthly home-mortgage payment was approximately $2,500, and child-care
expenses approximated $4,000 a month. Over time, the burden of more than
$10,300 a month in expenses was financially draining, and in some months,
Burchinal did not earn enough to cover his bills.
2. Misappropriation of funds
{¶ 7} Burchinal’s firm partners asked him to assist in personal-injury
cases because they had little experience with such cases. Burchinal
misappropriated funds in three cases. In 2007, he was to pay a subrogated
medical expense of $6,141 as part of effectuating the settlement for his client,
Molly Davis. Instead of paying the claim, Burchinal misappropriated this sum
and paid his mortgage and his share of firm expenses with it.
{¶ 8} In the Getena Hartman case in 2008, $303.25 was owed to
Riverside Methodist Hospital. Instead of disbursing the money to Riverside,
Burchinal misappropriated it to pay his mortgage and other personal expenses.
{¶ 9} In 2009, in the Shannon Scott matter, Burchinal was to pay a
$7,435.02 subrogated expense, and the insurance company issued a separate
check for it. Instead of paying that claim, Burchinal misappropriated the money
by having the client endorse the check. He then deposited it and used the money
for personal expenses.
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SUPREME COURT OF OHIO
{¶ 10} With respect to the three counts of misappropriating funds,
Burchinal stipulated violations of Prof.Cond.R. 1.15(c), 8.4(c), and 8.4(h).
3. Neglect of a client matter and concealment
{¶ 11} In the matter of James and Penny Robinson, Burchinal missed the
2008 statute-of-limitations deadline for their personal-injury lawsuit. Instead of
informing his clients, for two years Burchinal told the clients that he was still
negotiating with the insurance company. With respect to this count, Burchinal
stipulated violating Prof.Cond.R. 1.3, 1.4(a)(3), and 8.4(h).
4. Discovery, self-reporting, and restitution
{¶ 12} In May 2010, one of his law partners confronted Burchinal about
the unpaid Riverside Hospital bill. He admitted using the money to pay personal
expenses and also revealed that he had misappropriated funds intended to pay the
subrogation claims for Davis and Scott. Burchinal then reported his misconduct
to relator.
{¶ 13} Right after being confronted, Burchinal paid the Riverside Hospital
bill and the subrogation claims relating to the Davis and Scott matters. He also
entered into a settlement with the Robinsons and signed a promissory note to pay
them $17,000 as the value of their case and defray their $1,200 medical bill.
Burchinal has fulfilled his obligations to the Robinsons.
5. OLAP contract and psychological treatment
{¶ 14} Also in May 2010, Burchinal sought assistance from OLAP and
signed a four-year OLAP contract. OLAP clinical associate Megan Snyder
testified that she conducted an alcohol, drug, and mental-health assessment on
Burchinal and diagnosed adjustment disorder with mixed anxiety and depressed
mood resulting from his financial stress. The OLAP contract requires Burchinal
to pursue appropriate treatment by his physician and mental-health professionals,
and Snyder has asked him to contact OLAP three times a week for support.
Snyder testified that Burchinal has been open, cooperative, and compliant.
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January Term, 2012
{¶ 15} In June 2010, Burchinal began mental-health counseling with
Judith Fisher, a licensed independent social worker. Fisher testified that
Burchinal had initially exhibited several symptoms of depression relating to
financial stress exacerbated by his strong identity as breadwinner, but she testified
that a year later, he had made progress by maintaining healthy habits, by reaching
out to friends and family, and by participating in group therapy sessions. She
offered her professional opinion that Burchinal’s condition had impaired his
rationality and judgment and had contributed to his misconduct. Fisher stated that
Burchinal had “come out from under the symptoms that * * * had taken over,”
and she opined that he “could return to the practice of law in a competent, ethical,
and professional manner.”
Disposition
1. Aggravating and mitigating factors
{¶ 16} After finding that Burchinal had violated the Rules of Professional
Conduct as stipulated, the panel made findings regarding aggravating and
mitigating factors. As aggravating factors, the panel identified the presence of a
selfish or dishonest motive as well as multiple offenses constituting a pattern of
misconduct. See BCGD Proc.Reg. 10(B)(1)(b), (c), and (d). The panel noted as
mitigating factors the absence of a prior disciplinary record, full disclosure and a
cooperative attitude toward the disciplinary proceedings, and diagnosis by a
qualified professional that mental illness contributed to his misconduct, but that
he will be able to return to the competent and ethical practice of law. See BCGD
Proc.Reg. 10(B)(2)(a), (d), (e), and (g).
2. Sanction
{¶ 17} The presumptive sanction for misappropriation of client funds is
disbarment. Cleveland Bar Assn. v. Dixon, 95 Ohio St. 3d 490, 2002-Ohio-2490,
769 N.E.2d 816, ¶ 15. The presence of sufficient mitigating factors justifies our
giving weight to a board recommendation of a lesser sanction. Id.; Dayton Bar
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SUPREME COURT OF OHIO
Assn. v. Gerren, 103 Ohio St. 3d 21, 2004-Ohio-4110, 812 N.E.2d 1280, ¶ 14. But
case law supports an actual suspension from the practice of law when extensive
misconduct involves dishonesty that adversely reflects on the attorney’s fitness to
practice law. Toledo Bar Assn. v. Miller, 132 Ohio St. 3d 63, 2012-Ohio-1880,
969 N.E.2d 239, ¶ 13.
{¶ 18} The parties agree that the facts support a two-year license
suspension with 18 months of the suspension stayed. This disposition accords
with our cases in two respects.
{¶ 19} First, multiple acts of dishonesty require an actual suspension from
the practice of law. Miller, ¶ 13. Second, Burchinal offered mitigating evidence,
such as the absence of a disciplinary record, full cooperation with the disciplinary
process, letters attesting to his diligence and good character, and a documented
mental impairment that is being treated with good prognosis. See Disciplinary
Counsel v. Claflin, 107 Ohio St. 3d 31, 2005-Ohio-5827, 836 N.E.2d 564, ¶ 12,
15; Disciplinary Counsel v. Poley, 94 Ohio St. 3d 425, 427, 763 N.E.2d 1163
(2002); Cleveland Bar Assn. v. Mishler, 118 Ohio St. 3d 109, 2008-Ohio-1810,
886 N.E.2d 818, ¶ 46; Disciplinary Counsel v. Kraemer, 126 Ohio St. 3d 163,
2010-Ohio-3300, 931 N.E.2d 571, ¶ 8, 15.
{¶ 20} We therefore order that Burchinal be suspended from the practice
of law for two years, with the final 18 months of the suspension stayed on the
following conditions: that Burchinal commit no further misconduct, that he serve
18 months of monitored probation pursuant to Gov.Bar R. V(9) during the stayed
portion of the suspension, that he cooperate with the monitoring attorney assigned
by relator, and that he complete his four-year OLAP contract. If Burchinal
violates these conditions, the stay will be lifted, and he will serve the full two-year
suspension.
{¶ 21} Costs are taxed to respondent.
Judgment accordingly.
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January Term, 2012
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Jonathan E. Coughlan, Disciplinary Counsel, and Heather Coglianese,
Assistant Disciplinary Counsel, for relator.
Bricker & Eckler L.L.P., and Alvin E. Mathews Jr., for respondent.
______________________
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