Dayton Bar Assn. v. Sullivan (Slip Opinion) , 2020 Ohio 124 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Dayton Bar Assn. v. Sullivan, Slip Opinion No. 2020-Ohio-124.]
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
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-124
DAYTON BAR ASSOCIATION v. SULLIVAN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Dayton Bar Assn. v. Sullivan, Slip Opinion No.
2020-Ohio-124.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation—Two-year suspension, with the second year stayed on
conditions.
(No. 2018-1765—Submitted May 8, 2019—Decided January 21, 2020.)
ON CERTIFIED REPORT by the Board of Professional Conduct
of the Supreme Court, No. 2018-007.
____________________
Per Curiam.
{¶ 1} Respondent, Anthony William Sullivan, of Dayton, Ohio, Attorney
Registration No. 0062416, was admitted to the practice of law in Ohio in 1993.
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{¶ 2} In a four-count complaint certified to the Board of Professional
Conduct on February 1, 2018, relator, Dayton Bar Association, charged Sullivan
with multiple professional-conduct violations arising out of his representation of
four separate clients. The complaint alleged that Sullivan (1) failed to act diligently
and promptly in representing three of those clients, (2) neglected to inform three of
those clients that he did not carry professional-liability insurance, (3) engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation with three of
those clients, and (4) refused to cooperate with relator’s disciplinary investigation
into the grievances filed by all four clients.
{¶ 3} A hearing was held before a panel of the board on September 21,
2018. Sullivan and two grievants testified, and the parties agreed to the admission
of 34 exhibits. Although Sullivan did not cooperate with relator during the
investigation of the four grievances, he admitted to every allegation, with some
qualifications and explanations, in either his answer to the complaint or his
testimony before the panel.
{¶ 4} Following the hearing, the panel requested that Sullivan and relator
submit a stipulation as to whether Sullivan owed a refund to one of his former
clients who had filed one of the grievances, and if so, the amount of that refund.
The parties subsequently agreed that Sullivan owed that former client $1,000.
Thereafter, the panel issued a report finding that Sullivan had committed all but two
of the instances of misconduct that had been alleged and recommending that he be
suspended from the practice of law for two years, with the second year of the
suspension stayed on conditions. The board adopted the panel’s findings and
recommended sanction.
{¶ 5} No objections have been filed. Having reviewed the record, we adopt
the board’s findings of misconduct and agree that a two-year suspension, with one
year conditionally stayed, is the appropriate sanction.
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Misconduct
Count One—the Horwath Matter
{¶ 6} In 2013, Sullivan represented Tamala Horwath in a landlord-tenant
dispute. Sullivan filed a successful eviction action against Horwath’s tenant and
obtained a judgment requiring the tenant to pay Horwath $5,259.66 in past due rent
and late fees. Thereafter, Horwath engaged Sullivan to collect the $5,259.66. On
November 18, 2014, Horwath provided Sullivan the debtor’s place of employment
for purposes of commencing a garnishment action and on January 18, 2015,
Horwath paid Sullivan the $125 filing fee for that action.
{¶ 7} Horwath contacted Sullivan’s office and left a number of messages
for him over the next year regarding the status of the collection action. On a few
occasions, Horwath spoke to Sullivan’s assistant, who, according to Horwath,
would give “vague information” about the collection action. When Horwath finally
spoke with Sullivan after nearly a year of trying, Sullivan falsely told her the
collection paperwork had been filed.
{¶ 8} Horwath filed a grievance with relator against Sullivan in December
2015. Relator sent Sullivan two letters by certified mail requesting that Sullivan
schedule an interview and that he produce certain documents, including his fee
agreement with Horwath, her client file, and proof that Sullivan carried
professional-liability insurance for the time period during which he represented
Horwath. Sullivan failed to respond to relator’s requests.
{¶ 9} During the hearing, Sullivan testified that his professional-liability
insurance had expired on June 20, 2014, and that he had failed to obtain a signed
acknowledgement from Horwath notifying her of that fact. Additionally, by the
date of the hearing, despite Sullivan’s failure to file the collection action, he had
not refunded Horwath’s filing fee.
{¶ 10} Based on the evidence and Sullivan’s admissions, the board found
that Sullivan had violated Prof.Cond.R. 1.3 (requiring a lawyer to act with
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reasonable diligence in representing a client), 1.4(c) (requiring a lawyer to inform
a client if the lawyer does not maintain professional-liability insurance and to obtain
a signed acknowledgement of that notice from the client), 8.1(b) (prohibiting a
lawyer from knowingly failing to respond to a demand for information by a
disciplinary authority during an investigation), and 8.4(c) (prohibiting a lawyer
from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation).
Count Two—the Kolaczkowski Matter
{¶ 11} Jeffrey Kolaczkowski retained Sullivan in April 2011 to represent
him in his divorce. In the summer of 2013, after obtaining a divorce decree,
Kolaczkowski consulted with Sullivan about modifying the divorce decree as it
pertained to his child-support obligations. Kolaczkowski met with Sullivan on two
occasions to complete the necessary financial forms for the modification request,
but Sullivan never filed the motion.
{¶ 12} In August 2013, Kolaczkowski’s ex-wife filed a motion asking
Kolaczkowski to show cause as to why he had failed to meet his child-support
obligations. The matter was eventually assigned a hearing date of August 11, 2014.
{¶ 13} Sullivan failed to inform Kolaczkowski of the hearing.
Kolaczkowski, however, discovered the hearing notice in July 2014 while
conducting a search of the trial court’s online docket. He notified Sullivan that he
could not attend the hearing due to a preplanned vacation. Sullivan assured
Kolaczkowski that a continuance would be requested and that Kolaczkowski should
not worry about attending the hearing. With that assurance, Kolaczkowski went on
vacation. On July 30, 2014, when Kolaczkowski asked for a case update, Sullivan
falsely told Kolaczkowski that he had filed the motion requesting a continuance but
that he had not yet heard back from the court. At that point, Kolaczkowski could
have returned from vacation for the August 11 hearing if necessary. Sullivan once
again told him not to worry about attending the hearing. Sullivan finally filed the
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motion five days before the hearing, but the trial court denied the request the next
day. Sullivan did not tell Kolaczkowski about the court’s decision and
consequently, Kolaczkowski failed to appear. The hearing proceeded in
Kolaczkowski’s absence, and the trial court later found Kolaczkowski in contempt,
issued a warrant for his arrest, and ordered him to pay his ex-wife’s attorney fees.
{¶ 14} When Kolaczkowski discovered that the hearing had not been
continued, he confronted Sullivan and demanded an explanation. Sullivan blamed
his staff for neglecting to inform Kolaczkowski that the hearing would proceed to
take place as scheduled.
{¶ 15} Kolaczkowski filed a grievance against Sullivan in late October
2015. Relator sent Sullivan a certified letter on December 29, 2015, requesting that
Sullivan schedule an interview and that he produce certain documents concerning
his representation of Kolaczkowski, including proof of professional-liability
insurance. After Sullivan failed to respond, relator called him on January 29, 2016.
Sullivan explained he was recovering from surgery, and relator granted him an
extension for his response. But Sullivan did not respond by the extended deadline.
Relator subsequently contacted Sullivan five days after the deadline, and Sullivan
again promised to send the requested information. But once again, Sullivan failed
to do so.
{¶ 16} In March, when Sullivan finally attempted to comply with relator’s
requests, Sullivan provided relator with an incomplete client file and an insurance-
declaration page showing a policy that had expired on June 20, 2014. At his
hearing, Sullivan testified that he never informed Kolaczkowski that his
professional-liability insurance had terminated on June 20, 2014.
{¶ 17} Against this backdrop, Sullivan admitted, and the board found,
violations of Prof.Cond.R. 1.3, 1.4(c), 8.1(b), and 8.4(c).
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Count Three—the Topps Matter
{¶ 18} Sullivan represented Lisa Topps in a criminal case in January 2015.
Topps, who was convicted of three felonies, filed a grievance alleging that Sullivan
had failed to properly defend her against the charges that she faced.
{¶ 19} During the investigation, Sullivan failed to respond to relator’s
initial request for certain documents regarding Sullivan’s representation of Topps
and the dates and times of Sullivan’s availability so that an interview could be
scheduled. Relator sent a second request and Sullivan submitted what he
represented to be Topps’s entire client file. Sullivan, however, failed to provide
dates or times when he could be interviewed. Relator contacted Sullivan a third
time to set up an interview. Sullivan responded via e-mail, stating that he would
set up an interview soon. Sullivan, however, did not contact relator to set up the
promised interview. Relator sent another e-mail imposing a two-week deadline for
Sullivan to schedule an interview. Sullivan never responded to this e-mail.
{¶ 20} Relator ultimately determined that there was insufficient cause to
proceed on Topps’s grievance. However, because Sullivan failed to fully cooperate
with the investigation, relator charged him with a violation of Prof.Cond.R. 8.1(b).
{¶ 21} Sullivan admitted to the charged violation during the hearing and the
board found sufficient evidence that Sullivan had violated Prof.Cond.R. 8.1(b).
Count Four—the Nason Matter
{¶ 22} Andrew Nason paid Sullivan a $2,000 retainer in April 2016 to
defend him against three felony charges. Nason had been jailed since December
2015 and was being held on a $250,000 bond. Nason’s former counsel had filed
two separate motions to suppress, which were still pending when Sullivan was
hired. The trial court denied the motions to suppress in August 2016 and scheduled
Nason’s case for trial. Nason, however, discharged Sullivan prior to trial.
{¶ 23} Nason filed a grievance against Sullivan in July 2016. Nason alleged
that Sullivan did nothing to resolve his case, refused to respond to requests for
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information from Nason and his family members, and visited him in prison only
twice during the eight-month period of time in which Sullivan represented Nason.
Nason also testified that Sullivan indicated that he would be able to get Nason’s
$250,000 bond reduced. According to Nason, Sullivan said that he had filed a
motion with the court requesting a reduction of Nason’s bond. But no such motion
was ever filed.
{¶ 24} During the investigation into Nason’s grievance, relator sent
Sullivan a certified letter requesting that Sullivan provide relator with possible dates
and times for an interview and with certain documents pertaining to his
representation of Nason, including proof of professional-liability insurance.
Relator requested a response by October 26, 2016. Sullivan, however, failed to
respond in any fashion.
{¶ 25} The complaint in this count charged Sullivan with violations of
Prof.Cond.R. 1.3, 1.4(c), 8.1(b), and 8.4(c), as well as violations of Prof.Cond.R.
1.4(a)(3) (requiring a lawyer to keep a client reasonably informed about the status
of the matter) and 1.4(a)(4) (requiring a lawyer to comply as soon as practicable
with a client’s reasonable requests for information). During his disciplinary
hearing, with some clarifications, Sullivan admitted that he had committed each of
the charged violations.
{¶ 26} Despite Sullivan’s admissions, the panel found insufficient evidence
establishing that Sullivan had failed to keep Nason reasonably informed or that
Sullivan had neglected to promptly respond to reasonable requests for information.
Therefore, the panel unanimously dismissed the alleged violations of Prof.Cond.R.
1.4(a)(3) and (4).
{¶ 27} The panel found and the board agreed that Sullivan’s conduct
violated Prof.Cond.R. 1.3, 1.4(c), 8.1(b), and 8.4(c).
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Sanction
{¶ 28} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties violated, the relevant aggravating and
mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar
cases.
Aggravating and mitigating factors
{¶ 29} The board found the following aggravating factors: (1) a dishonest
or selfish motive, (2) a pattern of misconduct, (3) multiple offenses, (4) a failure to
cooperate in the disciplinary process prior to the filing of the complaint, and (5) a
failure to make restitution. See Gov.Bar R. V(13)(B)(2), (3), (4), (5), and (9).
{¶ 30} In mitigation, the board found that Sullivan had no prior disciplinary
record and that he cooperated with the disciplinary process after relator had filed
the complaint. See Gov.Bar R. V(13)(C)(1) and (4).
Recommended sanction
{¶ 31} The parties stipulated to a two-year suspension from the practice of
law, with the second year stayed on the conditions that Sullivan submit to an
evaluation with the Ohio Lawyers Assistance Program (“OLAP”) and that he
comply with any recommendations resulting from the evaluation. Although
Sullivan denied having any disorder that may have contributed to his misconduct,
the board was concerned that Sullivan had three close family members pass away
within several months of each other. These series of events, coupled with
Sullivan’s lack of explanation for his pattern of neglect, which continued even after
the hearing, led the board to agree that an OLAP assessment was appropriate.
{¶ 32} The board also determined that an actual suspension from the
practice of law is necessary to protect the public. Accordingly, the board
recommends that Sullivan be suspended for two years, with the second year of the
suspension stayed on the conditions that he (1) engage in no further misconduct,
(2) provide proof within 30 days of this court’s decision that he has made restitution
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of $125 to Horwath and $1,000 to Nason, (3) schedule an OLAP assessment within
30 days of this court’s decision and comply with any recommendations resulting
from the assessment, (4) in addition to the requirements of Gov.Bar R. X, complete
12 hours of continuing-legal education (“CLE”) in law-office management and
practice as a sole practitioner, (5) pay the costs of these proceedings, and (6) upon
reinstatement, serve one year of monitored probation in accordance with Gov.Bar
R. V(21).
{¶ 33} In support of this recommendation, the board cites three cases as
comparable to Sullivan’s case, Cleveland Metro. Bar Assn. v. Gresley, 127 Ohio
St.3d 430, 2010-Ohio-6208, 940 N.E.2d 945, Toledo Bar Assn. v. Stewart, 135 Ohio
St.3d 316, 2013-Ohio-795, 986 N.E.2d 947, and Disciplinary Counsel v. Guinn,
150 Ohio St. 3d 92, 2016-Ohio-3351, 79 N.E.3d 512.
{¶ 34} In Gresley, we suspended the respondent for two years, with six
months of the suspension stayed on conditions, for conduct that included accepting
fees from several clients and then failing to perform agreed upon legal work and
failing to cooperate in the ensuing disciplinary investigation of that conduct. The
aggravating factors included acting with a selfish motive, engaging in a pattern of
misconduct, causing harm to vulnerable clients, and failing to cooperate during the
initial part of the investigation. Mitigating factors included having a clean
disciplinary record, cooperating in the disciplinary proceeding once the complaint
was filed, and having other sanctions imposed that were outside the disciplinary
process.
{¶ 35} In Stewart, we suspended the respondent for two years, with the
second year of the suspension stayed on conditions, for conduct that included
accepting retainers from multiple clients and then failing to perform the agreed
upon legal work, failing to inform clients about a lack of professional-liability
insurance, and refusing to cooperate in the disciplinary process. Aggravating
factors in Stewart included engaging in a pattern of misconduct, committing
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multiple offenses, failing to cooperate in the disciplinary process, and failing to
acknowledge the wrongful nature of the misconduct. Mitigating factors included
having no prior discipline and lacking a selfish or dishonest motive.
{¶ 36} And in Guinn, we imposed a two-year suspension, fully stayed on
conditions, for the respondent’s misconduct, which included neglecting two client
matters, misrepresenting the status of a client’s case, and failing to inform clients
about a lack of professional-liability insurance. Only one aggravating factor was
present—i.e., engaging in a pattern of misconduct. Mitigating factors included
having no prior discipline, lacking a selfish motive, making full and free disclosures
to the board, and having a cooperative attitude toward the disciplinary proceedings.
Disposition
{¶ 37} We agree with the board that Sullivan’s misconduct is comparable
to the misconduct in the cited cases, particularly to the misconduct in Stewart.
Similar to Stewart, Sullivan neglected several client matters, failed to inform clients
that he lacked professional-liability insurance, and refused to cooperate in the
ensuing disciplinary investigation until the complaint had been filed. Likewise, the
balance of aggravating and mitigating factors here is analogous to those in Stewart.
{¶ 38} “We are ever mindful that the primary purpose of the disciplinary
process is not to punish the offender but to protect the public from lawyers who are
unworthy of the trust and confidence essential to the attorney-client relationship.”
Columbus Bar Assn. v. Kiesling, 125 Ohio St. 3d 36, 2010-Ohio-1555, 925 N.E.2d
970, ¶ 44, citing Disciplinary Counsel v. Agopian, 112 Ohio St. 3d 103, 2006-Ohio-
6510, 858 N.E.2d 368, ¶ 10. Sullivan engaged in significant misconduct yet was
unable to explain his actions to the panel. Therefore, we agree with the board that
an actual suspension is warranted here to protect the public. In light of Sullivan’s
eventual cooperation in the disciplinary process, the absence of prior discipline, his
agreement to undergo an OLAP assessment, and the condition that he serve a one-
year period of monitored probation, we agree that a two-year suspension, with the
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second year stayed on conditions, is supported by the record and is reasonable and
appropriate in this case.
Conclusion
{¶ 39} Accordingly, we suspend Sullivan from the practice of law for two
years, with the second year of the suspension stayed on the conditions that he (1)
make restitution of $125 to Horwath and $1,000 to Nason within 30 days of this
court’s disciplinary order, (2) schedule an assessment with OLAP within 30 days
of this court’s disciplinary order and comply with any recommendations resulting
from that assessment, (3) in addition to the requirements of Gov.Bar R. X, complete
12 hours of CLE in law-office management and practice as a sole practitioner, (4)
refrain from further misconduct, and (5) complete a one-year period of monitored
probation in accordance with Gov.Bar R. V(21) upon his reinstatement to the
practice of law. If Sullivan fails to comply with any of these conditions, the stay
will be lifted and he will serve the entire two-year suspension. Costs are taxed to
Sullivan.
Judgment accordingly.
O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
FISCHER, J., concurs, with an opinion joined by DONNELLY, J.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
_________________
FISCHER, J., concurring.
{¶ 40} I join the majority opinion in this case. I write separately, however,
to respectfully disagree with the viewpoint proposed in the opinion concurring in
part and dissenting in part, which concludes that the Supreme Court Rules for the
Government of the Bar require this court to impose specific conditions on any term
of monitored probation in an attorney-discipline case. Neither the Supreme Court
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Rules for the Government of the Bar nor decades of this court’s case law addressing
attorney discipline supports such a requirement.
{¶ 41} This court has the sole duty to oversee the practice of law in this state
under Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution. As the
final arbiter of attorney discipline, this court determines the appropriate disciplinary
sanction, if any, which may include a period of monitored probation. See Gov.Bar
R. V(12)(A).
{¶ 42} If we decide to order an attorney to serve a period of monitored
probation, we are by no means required, as the opinion concurring in part and
dissenting in part contends, to attach specific conditions to the term of that
probation. This court, under Gov.Bar R. V(12)(A)(4), may order an attorney to
serve a period of probation with those conditions we deem appropriate. Similarly,
Gov.Bar R. V(12)(I) allows a disciplinary-hearing panel to recommend a period of
probation and requires the panel to “include in its report any conditions of
probation.” (Emphasis added.) The term “any” can mean “one, some, or all
indiscriminately of whatever quantity” or “unmeasured or unlimited in amount,
quantity, number, * * * or extent.” Webster’s Third New International Dictionary
97 (2002). And furthermore, Gov.Bar R. V(21) provides various general
requirements for the term of monitored probation. As I have said before, the
language of these rules indicates that this court may impose a term of probation
without conditions. See Disciplinary Counsel v. Halligan, ___Ohio St.3d ___,
2019-Ohio-3748, ___ N.E.3d____, ¶ 33-36 (Fischer, J., concurring).
{¶ 43} Consistent with this court’s unfettered constitutional authority over
the practice of law, the Supreme Court Rules for the Government of the Bar were
written to allow this court discretion in attorney-discipline cases. This discretion
does not require this court to mandate specific conditions of monitored probation
in those cases in which we decide to impose such a term.
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{¶ 44} This court, in keeping with the Supreme Court Rules for the
Government of the Bar, has ordered various types of monitored probation for
disciplined attorneys, ranging from general terms of monitored probation to very
specific terms of monitored probation.
{¶ 45} In numerous cases decided in this past decade, this court has ordered
a general term of monitored probation without specific conditions for many
disciplined attorneys. See Disciplinary Counsel v. Blair, 128 Ohio St. 3d 384, 2011-
Ohio-767, 944 N.E.2d 1161, ¶ 21, reinstatement granted, 131 Ohio St. 3d 1229,
2012-Ohio-1590, 967 N.E.2d 212, ¶ 4; Toledo Bar Assn. v. Miller, 132 Ohio St. 3d
63, 2012-Ohio-1880, 969 N.E.2d 239, ¶ 16; Akron Bar Assn. v. DeLoach, 143 Ohio
St.3d 39, 2015-Ohio-494, 34 N.E.3d 88, ¶ 20; Dayton Bar Assn. v. Washington,
143 Ohio St. 3d 248, 2015-Ohio-2449, 36 N.E.3d 167, ¶ 15; Cleveland Metro. Bar
Assn. v. Sleibi, 144 Ohio St. 3d 257, 2015-Ohio-2724, 42 N.E.3d 699, ¶ 31,
reinstatement granted, 150 Ohio St. 3d 1213, 2017-Ohio-919, 78 N.E.3d 889, ¶ 3-
4; Columbus Bar Assn. v. Balaloski, 145 Ohio St. 3d 121, 2016-Ohio-86, 47 N.E.3d
150, ¶ 8; Disciplinary Counsel v. Williams, 145 Ohio St. 3d 308, 2016-Ohio-827,
49 N.E.3d 289, ¶ 26, reinstatement granted, 150 Ohio St. 3d 1214, 2017-Ohio-920,
78 N.E.3d 890, ¶ 3-4; Columbus Bar Assn. v. Reed, 145 Ohio St. 3d 464, 2016-
Ohio-834, 50 N.E.3d 516, ¶ 15-16; Mahoning Cty. Bar Assn. v. Hanni, 145 Ohio
St.3d 492, 2016-Ohio-1174, 50 N.E.3d 542, ¶ 17; Disciplinary Counsel v. Jackson,
146 Ohio St. 3d 341, 2016-Ohio-1599, 56 N.E.3d 936, ¶ 9; Disciplinary Counsel v.
Bartels, 151 Ohio St. 3d 144, 2016-Ohio-3333, 87 N.E.3d 155, ¶ 16, reinstatement
granted, 150 Ohio St. 3d 1284, 2017-Ohio-4432, 82 N.E.3d 1171, ¶ 3-4;
Disciplinary Counsel v. Mahin, 146 Ohio St. 3d 312, 2016-Ohio-3336, 55 N.E.3d
1108, ¶ 7, reinstatement granted, 147 Ohio St. 3d 1266, 2016-Ohio-7717, 66 N.E.3d
758, ¶ 3-4; Disciplinary Counsel v. Guinn, 150 Ohio St. 3d 92, 2016-Ohio-3351, 79
N.E.3d 512, ¶ 17; Columbus Bar Assn. v. Roseman, 147 Ohio St. 3d 317, 2016-
Ohio-5085, 65 N.E.3d 713, ¶ 17; Disciplinary Counsel v. Kendrick, 147 Ohio St. 3d
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395, 2016-Ohio-5600, 66 N.E.3d 710, ¶ 15; Cincinnati Bar Assn. v. Hauck, 148
Ohio St. 3d 203, 2016-Ohio-7826, 69 N.E.3d 719, ¶ 40-41; Disciplinary Counsel v.
Joltin, 147 Ohio St. 3d 490, 2016-Ohio-8168, 67 N.E.3d 780, ¶ 34; Cleveland
Metro. Bar Assn. v. King, 148 Ohio St. 3d 602, 2016-Ohio-8255, 71 N.E.3d 1082,
¶ 15; Disciplinary Counsel v. Barbera, 149 Ohio St. 3d 505, 2017-Ohio-882, 75
N.E.3d 1248, ¶ 15; Disciplinary Counsel v. Pickrel, 151 Ohio St. 3d 466, 2017-
Ohio-6872, 90 N.E.3d 853, ¶ 17, reinstatement granted, 156 Ohio St. 3d 1213,
2019-Ohio-32, 124 N.E.3d 847, ¶ 3-4; Disciplinary Counsel v. Turner, 154 Ohio
St.3d 322, 2018-Ohio-4202, 114 N.E.3d 174, ¶ 21; Wood Cty. Bar Assn. v.
Driftmyer, 155 Ohio St. 3d 603, 2018-Ohio-5094, 122 N.E.3d 1262, ¶ 22.
{¶ 46} When necessary and practical, however, this court has also decided
to order disciplined attorneys to serve a more specific term of monitored probation.
See, e.g., Disciplinary Counsel v. Bennett, 146 Ohio St. 3d 237, 2016-Ohio-3045,
54 N.E.3d 1232, ¶ 19; Disciplinary Counsel v. Quinn, 144 Ohio St. 3d 336, 2015-
Ohio-3687, 43 N.E.3d 398, ¶ 15, reinstatement granted, 146 Ohio St. 3d 1231,
2016-Ohio-2737, 52 N.E.3d 1195, ¶ 3-4; Columbus Bar Assn. v. McCord, 150 Ohio
St.3d 81, 2016-Ohio-3298, 79 N.E.3d 503, ¶ 17.
{¶ 47} These cases illustrate that the longstanding practice of this court is
to analyze each attorney-discipline case on its own basis and impose sanctions
tailored to the particular facts of that case. Hence, any decision to the contrary—
including one that would demand that every term of monitored probation include
specific subject areas that the monitor must cover or specific conditions the attorney
must comply with—would require us to overturn decades of precedent and scores
of decisions by this court. See, e.g., Crawford Cty. Bar Assn. v. Nicholson, 66 Ohio
St.3d 585, 613 N.E.2d 1025 (1993). Stare decisis exists for a reason, and I cannot
condone such a change in practice, especially without an accompanying change to
the rules.
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{¶ 48} Apart from the rules themselves and the 30 years of precedent from
this court, there are other practical reasons for rejecting the view espoused in the
opinion concurring in part and dissenting in part. The current practice ensures the
protection of the public and aids the disciplined attorney, all while being mindful
of the allocation and utilization of resources. See Halligan, ___Ohio St.3d ___,
2019-Ohio-3748, ___ N.E.3d____, at ¶ 36 (Fischer, J., concurring). As we have
recognized time and time again, “ ‘[T]he primary purpose of disciplinary sanctions
is not to punish the offender, but to protect the public.’ ” (Emphasis added).
Disciplinary Counsel v. Schuman, 152 Ohio St. 3d 47, 2017-Ohio-8800, 92 N.E.3d
850, ¶ 17, quoting Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204, 2004-
Ohio-4704, 815 N.E.2d 286, ¶ 53.
{¶ 49} Ordering a disciplined attorney to serve a general term of monitored
probation without specific conditions enables this court to keep “ ‘ “on a short
leash,” ’ ” Halligan at ¶ 34, quoting Disciplinary Counsel v. Sarver, 155 Ohio St. 3d
100, 2018-Ohio-4717, 119 N.E.3d 405, ¶ 47 (Fischer, J., concurring in part and
dissenting in part), attorneys who may need further monitoring but who do not have
a specific, identifiable issue or who do not require guidance in a specific area.
Conceivably, this court may be, or has been, presented with a case in which the
disciplined attorney is one who has been investigated by the Board of Professional
Conduct before for certain violations but was not charged (due to a lack of clear
and convincing evidence). Or, fathomably, this court has seen a disciplined
attorney who is silently struggling with an issue—such as mental health,
unidentified addiction, or grief—that was the root cause of the prohibited conduct
when neither this court nor the board was privy to such information at the time of
the proceedings. See Halligan at ¶ 36 (Fischer, J., concurring). A general term of
monitored probation, especially in the aforementioned situations, provides this
court, through the probation monitor, the flexibility to keep a disciplined attorney
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on “a short leash” to help guide that attorney and meet his or her needs, while also
adequately protecting the public.
{¶ 50} Furthermore, as I pointed out in my dissenting opinion in
Disciplinary Counsel v. Harmon, ___Ohio St.3d___, 2019-Ohio-4171,
___N.E.3d___, ¶ 61, reading into the Supreme Court Rules for the Government of
the Bar such an extreme requirement of specific terms of monitored probation in
every case in which this court orders monitored probation could create significant
hardships on this court’s disciplinary process by asking even more of the attorneys
who volunteer to serve as probation monitors when they are already so giving with
their time, knowledge, and expertise. Relatedly, if specific conditions were
required in every case, depending on the type of violation presented, there may not
be enough monitoring attorneys who have the sufficient expertise required to aid
the disciplined attorney in fulfilling the specific terms of his or her monitored
probation. These hardships would certainly lessen the protections for the public.
{¶ 51} We should be mindful to utilize only those resources necessary for
monitored probation to protect the public and enforce the rules created by this court,
while also helping the disciplined attorney. Requiring specific conditions in each
attorney-discipline case in which monitored probation is ordered would run afoul
of these goals by effectively tying the hands of the relator and placing an arbitrary
restriction on the discretion of this court.
{¶ 52} Thus, because ordering a general term of monitored probation
without specified conditions is appropriate in a variety of cases, I join the majority
opinion and respectfully disagree with the conclusion of the opinion concurring in
part and dissenting in part that this court must set forth specific conditions every
time that we impose monitored probation. More is not always better.
DONNELLY, J., concurs in the foregoing opinion.
_________________
KENNEDY, J., concurring in part and dissenting in part.
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January Term, 2020
{¶ 53} I concur in the majority’s determination that respondent, Anthony
William Sullivan, should be suspended for two years, with the second year of the
suspension stayed, and that he should serve a one-year term of monitored probation
following his reinstatement to the practice of law. However, because Gov.Bar R.
V(12)(A)(4) and (21)(B)(1) require this court to impose specific conditions on any
term of probation we impose, I disagree with the majority’s decision not to impose
any specific conditions on Sullivan’s probation.
{¶ 54} The Supreme Court Rules for the Government of the Bar give this
court the sole authority to impose the conditions of probation required by Gov.Bar
R. V(21), Disciplinary Counsel v. Halligan, ___ Ohio St.3d ___, 2019-Ohio-3748,
___N.E.3d ___, ¶ 42 (Kennedy, J., concurring in part and dissenting in part), and
therefore the “failure to attach conditions to probation is more than a missed
opportunity to set the criteria and goals for professional redemption, it is an
abdication of our duty under the Rules for the Government of the Bar,” id. at ¶ 41.
When this court does not provide guidance to the relator, the respondent, the
monitoring attorney, and the Board of Professional Conduct as to the conditions of
respondent’s probation—conditions specifically designed by this court to protect
the public and rehabilitate the respondent—it undermines the effectiveness of the
monitored-probation scheme established by Gov.Bar R. V(21). After all, the first
duty listed for monitoring attorneys in Gov.Bar R. V(21)(B)(1) is to “[m]onitor
compliance by the respondent with the conditions of probation imposed by the
Supreme Court.” (Emphasis added.) And probation cannot be terminated unless
“the respondent has complied with the conditions of probation.” Gov.Bar R.
V(21)(D).
{¶ 55} The majority imposes a term of probation without ordering any
conditions specific to Sullivan’s misconduct for him to follow while he is serving
it. Except for the generic duties Gov.Bar R. V(21)(C) imposes on all attorneys on
probation, Sullivan and his monitor have no direction regarding their respective
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duties during the term of monitored probation. The court does not describe what
the monitor should be monitoring during the monthly in-person meetings that will
be required by Gov.Bar R. V(21)(C)(1), nor does it determine what access the
monitor should have to Sullivan’s client files and records or even what constitutes
a violation of probation—the majority gives no explanation how this court could
find that a disciplined attorney has violated the conditions of probation pursuant to
Gov.Bar R. V(21)(E) through (K) when no conditions were imposed by the court
in the first instance. Without express conditions, imposing probation is not only
practically unworkable, but it also raises due-process concerns regarding a
disciplined attorney’s right to fair notice of what is expected of him or her during
the term of probation.
{¶ 56} Therefore, I would impose the following specific conditions for the
one-year term of monitored probation overseeing respondent’s law-office
management and practice as a sole practitioner: (1) respondent shall meet in person
with his monitoring attorney on a monthly basis as required by Gov.Bar R.
V(21)(C)(1), (2) respondent shall provide his monitoring attorney with a written
release or waiver for use in verifying compliance regarding medical, psychological,
or other treatment as required by Gov.Bar R. V(21)(C)(2), (3) respondent shall
cooperate and work with the monitor, who shall act as a mentor and provide
guidance to respondent regarding the proper operation and management of a law
practice, (4) respondent, with the relator or monitoring attorney, shall design a
comprehensive plan to ensure that he is reasonably diligent in the representation of
his clients; in the event respondent cannot act with reasonable diligence in
representing his clients, the relator or monitoring attorney may limit the number of
active cases respondent may maintain, (5) respondent shall maintain an active-case
list or a docketing system and shall give the monitoring attorney an inventory of
active cases each month, and (6) respondent shall give the monitoring attorney
access to nonconfidential client materials and files, ledgers, and account statements
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January Term, 2020
as needed to allow the monitoring attorney to review respondent’s active cases to
ensure his compliance with the Rules of Professional Conduct, see Allen Cty. Bar
Assn. v. Williams, 95 Ohio St. 3d 160, 2002-Ohio-2006, 766 N.E.2d 973, ¶ 16.
{¶ 57} Moreover, I would also include the following requirements as
additional conditions of probation: respondent shall (1) make restitution of $125 to
Tamala Horwath and $1,000 to Andrew Nason, (2) schedule an assessment with
the Ohio Lawyers Assistance Program and comply with any recommendations
resulting from that assessment, (3) complete 12 hours of continuing-legal education
in law-office management and practice as a sole practitioner in addition to the hours
required by Gov.Bar R. X, and (4) commit no further misconduct.
{¶ 58} “An effective attorney-probation system—one that follows the Rules
for the Government of the Bar—requires the considered input of this court in
establishing the conditions of probation.” Halligan, ___ Ohio St.3d ___, 2019-
Ohio-3748, ___ N.E.3d ___, at ¶ 47 (Kennedy, J., concurring in part and dissenting
in part). Because the majority fails to impose any conditions on Sullivan’s term of
probation, I dissent from that part of the court’s decision today.
DEWINE, J., concurs in the foregoing opinion.
_________________
Dinsmore & Shohl, L.L.P., and Glen R. McMurry; Green & Green,
Lawyers, and Jonathan F. Hung; and Jeffrey A. Hazlett, for relator.
Anthony W. Sullivan, pro se.
_________________
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