Stark Cty. Bar Assn. v. Kelley (Slip Opinion) , 2021 Ohio 770 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Stark Cty. Bar Assn. v. Kelley, Slip Opinion No. 2021-Ohio-770.]
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
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65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2021-OHIO-770STARK COUNTY BAR ASSOCIATION v. KELLEY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Stark Cty. Bar Assn. v. Kelley, Slip Opinion No.
2021-Ohio-770.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failure to act with reasonable diligence in representing a client
and withdrawing from representation of a client despite material adverse
effects on the interests of the client—Several mitigating factors, including
the absence of a prior disciplinary record and other interim
rehabilitation—Conditionally stayed two-year suspension.
(No. 2020-0970—Submitted January 13, 2021—Decided March 16, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct
of the Supreme Court, No. 2019-056.
______________
Per Curiam.
{¶ 1} Respondent, Paul Michael Kelley, of Uniontown, Ohio, Attorney
Registration No. 0088148, was admitted to the practice of law in Ohio in 2011.
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{¶ 2} In a November 4, 2019 complaint, relator, Stark County Bar
Association, alleged that among other things, Kelley neglected 15 separate clients,
failed to reasonably communicate with those clients, and ultimately abandoned
their representation without obtaining required court approval or making
reasonable efforts to protect their legal interests.
{¶ 3} The parties entered into stipulations of fact and Kelley admitted to
most of the charged misconduct. A three-member panel of the Board of
Professional Conduct conducted a hearing during which it heard testimony from
Kelley and two other witnesses. The panel largely accepted the parties’
stipulations of fact and misconduct but unanimously dismissed a few of the
charges against Kelley based on relator’s recommendation or upon finding that
they were not proven by clear and convincing evidence. Based on Kelley’s
misconduct and the relevant aggravating and mitigating factors, the panel
recommended that we adopt the parties’ stipulated sanction of a two-year
conditionally stayed suspension. The board adopted the panel’s findings of fact,
conclusions of law, and recommendation.
{¶ 4} We adopt the board’s findings of misconduct and agree that a
conditionally stayed two-year suspension is the appropriate sanction for Kelley’s
misconduct.
Facts and Misconduct
{¶ 5} During a 24-hour period in early March 2018, emergency medical
personnel twice transported Kelley to a local hospital for psychiatric evaluation.
The first time, Kelley was medically cleared and discharged, but the second time,
he was taken from the hospital to an inpatient mental-health-and-chemical-
dependency facility after acknowledging that he was suffering from suicidal
ideations and had recently abused several substances, including cocaine and
Adderall.
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{¶ 6} After he was admitted to the rehabilitation center, Kelley had his
girlfriend place the following message on his office-telephone answering
machine:
This is on behalf of Attorney Paul Kelley. He is no longer
able to take on any new cases or continue with any cases that he
currently has due to health reasons. He is immediately out of
commission and any cases that are currently active will need to be
reassigned to a new lawyer. If you have a current active case
please contact the county bar association in which your case
resides. If it is Stark County the phone number is 330-453-0685
and if not then please contact the prosecutor’s office to get new
counsel.
{¶ 7} At that time, Kelley represented at least 15 clients in domestic-
relations and criminal matters that were pending in Stark, Wayne, Trumbull, and
Mahoning counties. He missed at least one hearing and made no arrangements to
communicate with his clients, to continue representing them, or to withdraw as
counsel in their pending court proceedings.
{¶ 8} Patrick Cusma, a member of the Stark County Bar Association who
had recently confronted Kelley with suspicions of Kelley’s substance abuse, heard
rumors that Kelley was in trouble and called to check on him. Cusma heard the
outgoing message on Kelley’s answering machine and left a message offering to
help. Cusma arranged to obtain client files from Kelley’s girlfriend and transfer
them to himself and other attorneys, all of whom had agreed to represent Kelley’s
affected clients pro bono. Kelley did not assist Cusma in that effort.
{¶ 9} In December 2018, Kelley suffered a relapse of his addiction and
was again hospitalized. At that time, Kelley’s girlfriend discovered
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approximately 20 client files that Kelley had left in the trunk of her car (which he
had abandoned at a gas station in Akron) and delivered them to relator’s counsel.
{¶ 10} Kelley admitted that he abandoned 15 clients as a result of his
substance-abuse and mental-health issues. He also stipulated, and the board
found, that his conduct with respect to those clients violated five Rules of
Professional Conduct, namely Prof.Cond.R. 1.3 (requiring a lawyer to act with
reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to
keep the client reasonably informed about the status of the matter), 1.16(b)(1)
(permitting a lawyer to withdraw from the representation of a client if the
withdrawal can be accomplished without material adverse effect on the interests
of the client), 1.16(c) (prohibiting a lawyer from withdrawing from representation
in a proceeding without leave of court if the rules of the tribunal so require), and
1.16(d)(3) (requiring a lawyer withdrawing from representation to take steps that
are reasonably practicable to protect a client’s interest). The board also found that
Kelley violated Prof.Cond.R. 1.4(a)(2) (requiring a lawyer to reasonably consult
with the client about the means by which the client’s objectives are to be
accomplished) and 1.4(a)(4) (requiring a lawyer to comply as soon as practicable
with reasonable requests for information from a client) with respect to each of the
15 affected clients. However, we find that those violations were charged only
with respect to one of the affected clients and therefore, we limit our findings
accordingly. Additionally, the board found that Kelley’s abandonment of client
files in his girlfriend’s car violated Prof.Cond.R. 1.15(a) (requiring a lawyer to
properly hold and safeguard property of clients that is in a lawyer’s possession in
connection with a representation) and 1.6(c) (requiring a lawyer to make
reasonable efforts to prevent the inadvertent or unauthorized disclosure or
unauthorized access to information related to the representation of a client).
{¶ 11} We adopt these amended findings of misconduct.
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Stipulated Sanction
{¶ 12} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 13} The parties stipulated and the board found that one aggravating
factor is present: Kelley committed multiple rule violations that involved
multiple clients. See Gov.Bar R. V(13)(B)(4). As for mitigating factors, the
board adopted the parties’ stipulations that Kelley had no prior discipline, had no
dishonest or selfish motive, had made full and free disclosure to the board and
demonstrated a cooperative attitude toward the disciplinary proceedings, and had
other interim rehabilitation—namely, treatment for his addiction. See Gov.Bar R.
V(13)(C)(1), (2), (4), and (8).
{¶ 14} Kelley became addicted to stimulant medication that had been
prescribed to treat a disorder first diagnosed during his childhood. At his
disciplinary hearing, Saraha Martincak, a licensed chemical-dependency
counselor, testified that she had diagnosed Kelley with moderate opioid-use
disorder, moderate sedative- and hypnotic-use disorder, and severe amphetamine-
type-use disorder associated with a cycle of using stimulants to get high and
opioids or sedatives to come down from that high. The evidence shows that
Kelley’s addiction and subsequent admission to a drug-treatment facility in March
2018 contributed to cause his misconduct. Although Kelley did not present
certification that he had successfully completed an approved treatment program,
see Gov.Bar R. V(13)(C)(7)(c), Martincak reported that Kelley had completed 11
weeks of a 12-week outpatient treatment program during the summer of 2018.
And according to a May 14, 2020 report from Paul A. Caimi, associate director of
the Ohio Lawyers Assistance Program (“OLAP”), Kelley has followed
Martincak’s treatment recommendations and is in compliance with the terms of a
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three-year OLAP contract he entered into in January 2018, although he suffered
several relapses. That contract required him to participate in an outpatient
treatment program consisting of individual and group therapy, to attend multiple
12-step meetings (e.g., Alcoholics Anonymous or Narcotics Anonymous) per
week, and to submit to random drug screenings. In addition, Caimi reported that
Kelley had abstained from all mind-altering drugs, including alcohol, for 11
months. Martincak testified that with one year of sobriety, Kelley would achieve
sustained remission. She also opined that he could safely practice law, provided
that he continued to abide by her existing treatment recommendations and
remained in compliance with the conditions of his OLAP contract. On these
facts, we find that although Kelley has not established his substance-use disorder
as a mitigating factor pursuant to Gov.Bar R. V(13)(C)(7), his interim
rehabilitation nonetheless warrants mitigating effect. See Gov.Bar R.
V(13)(C)(8).
{¶ 15} The board recommends that we adopt the parties’ stipulated
sanction of a two-year suspension, stayed in its entirety on conditions designed to
preserve Kelley’s sobriety and develop his law-office-management skills. The
board notes that we have imposed comparable sanctions on attorneys who have
engaged in similar acts of misconduct fueled by a qualifying substance-use or
mental-health disorder. In Columbus Bar Assn. v. Allerding, 123 Ohio St.3d 382,
2009-Ohio-5589, 916 N.E.2d 808, an attorney neglected two legal matters for
approximately one year, failed to competently represent one of those clients,
failed to promptly deliver funds or property that his clients were entitled to
receive, and initially failed to cooperate in one of the ensuing disciplinary
investigations. Like Kelley, Allerding had committed multiple offenses and had
no prior disciplinary record or selfish or dishonest motive, though he also had a
mitigating substance-use disorder. We suspended Allerding from the practice of
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law for two years, but stayed the entire suspension on conditions designed to
ensure the continued treatment and management of his alcoholism.
{¶ 16} In Columbus Bar Assn. v. Bulson, 160 Ohio St.3d 208, 2020-Ohio-
3001, 155 N.E.3d 843, we imposed a conditionally stayed 18-month suspension
on an attorney who neglected three client matters, failed to reasonably
communicate with those clients, improperly managed his client trust account,
failed to promptly return unearned fees and property to his clients, and failed to
cooperate in the ensuing disciplinary investigations. Although Bulson had a prior
attorney-registration suspension, engaged in a pattern of misconduct, committed
multiple offenses, did not initially cooperate in the disciplinary process, and
harmed vulnerable clients, he did not act with a selfish motive, cooperated in the
disciplinary process once an amended complaint was filed, submitted evidence of
his good character and reputation, and established the existence of a qualifying
mitigating mental disorder.
{¶ 17} Although Kelley’s misconduct involved a greater number of clients
than the misconduct in Allerding and Bulson, it appears that his abandonment of
those clients was relatively short lived—thanks to the quick action of Cusma and
his colleagues in the Stark County Bar Association. The record shows that Kelley
is committed to his sobriety and mental health; in fact, he recognized that he had a
problem and entered into his OLAP contract approximately six weeks before his
March 2018 hospitalization. He also testified that he resumed the practice of law
in the summer of 2019 and that he has hired two paralegals to assist him with his
practice. Moreover, Kelley testified that he had voluntarily paid the attorneys
who assisted his clients a total of $4,900, and intended to pay them a total of
$12,750, the fair-market value of their services. Cusma confirmed that Kelley
began making those payments several months before his disciplinary hearing.
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{¶ 18} After independently reviewing the record and relevant precedent,
we agree that a two-year suspension, stayed in its entirety on the conditions
recommended by the board is the appropriate sanction in this case.
Conclusion
{¶ 19} Accordingly, Paul Michael Kelley is suspended from the practice
of law for two years, with the entire suspension stayed on the conditions that he
(1) remains in compliance with the terms of his January 27, 2018 OLAP contract
and enters into an additional two-year contract upon the issuance of the final order
in this case, (2) completes three hours of continuing legal education focused on
law-office management, in addition to the requirements of Gov.Bar R. X, (3)
serves a two-year period of monitored probation in accordance with Gov.Bar R.
V(21), with monitoring focused on law-office management and compliance with
his OLAP contract, and (4) engages in no further misconduct. If Kelley fails to
comply with any condition of the stay, the stay will be lifted and he will serve the
entire two-year suspension. Costs are taxed to Kelley.
Judgment accordingly.
O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only.
_________________
Richard S. Milligan, Bar Counsel, and Anthony E. Brown, for relator.
Paul Michael Kelley, pro se.
_________________
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