[Cite as Akron Bar Assn. v. Smithern, 125 Ohio St.3d 72, 2010-Ohio-652.]




                      AKRON BAR ASSOCIATION v. SMITHERN.
  [Cite as Akron Bar Assn. v. Smithern, 125 Ohio St.3d 72, 2010-Ohio-652.]
Attorneys at law — Multiple disciplinary violations — Felony conviction —
        Indefinite license suspension.
 (No. 2009-1522 — Submitted November 17, 2009 — Decided March 3, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-036.
                                  _________________
        Per Curiam.
        {¶ 1} Respondent, Michelle A. Smithern of Akron, Ohio, Attorney
Registration No. 0032850, was admitted to the practice of law in Ohio in 1986.
On February 17, 2009, we suspended respondent's license to practice law on an
interim basis, pursuant to Gov.Bar R. V(5)(A)(4), upon receiving notice that she
had been convicted of a felony. In re Smithern, 120 Ohio St.3d 1520, 2009-Ohio-
686, 901 N.E.2d 240.
        {¶ 2} The Board of Commissioners on Grievances and Discipline now
recommends that we indefinitely suspend respondent’s license to practice law
based on the board’s findings that respondent was convicted of felony theft for
stealing money from her law firm. The board also recommends that we credit
respondent for the time she served under the interim suspension. We accept the
board’s findings and conclusion and indefinitely suspend respondent’s license to
practice law in Ohio, with credit for time served under the interim suspension.
        {¶ 3} On June 9, 2008, relator, the Akron Bar Association, charged
respondent with 33 counts of misconduct, alleging in each count violations of DR
1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or
misrepresentation), 1-102(A)(6) (prohibiting conduct that adversely reflects on
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the lawyer’s fitness to practice law), 7-101(A)(3) (prohibiting intentional
prejudice or damage to a client during the course of the professional relationship),
and 9-102(A) and (B)(3) (requiring the preservation of the identity of client
funds).
          {¶ 4} A three-member panel of the board heard the case. At the hearing,
the relator withdrew count 25 of the complaint.           The panel subsequently
concluded that there was insufficient evidence to prove that respondent had
violated DR 7-101(A)(3) and consequently dismissed that violation in the
remaining 32 counts.       However, the panel found that there was clear and
convincing evidence that respondent had committed the other charged violations
in all remaining 32 counts and recommended an indefinite suspension with
conditions that must be satisfied before respondent could apply for reinstatement.
The Board of Commissioners on Grievances and Discipline adopted the panel’s
findings of misconduct and the recommended sanction.
                                     Misconduct
          {¶ 5} Respondent began working for Buckingham, Doolittle &
Burroughs, L.L.P. (“Buckingham”) in 1985 as a law clerk, and after passing the
bar, as an associate. In the mid 1990s, she became a partner. From 2004 to 2006,
respondent converted retainer fees from more than 30 clients by depositing them
in her personal bank account rather than in Buckingham’s trust account. In total,
respondent stole approximately $108,000 from Buckingham.
          {¶ 6} Attorneys at Buckingham discovered the thefts only after one of
respondent’s clients made complaints about her bill. The firm’s records showed
that the client had never paid a retainer, even though the client had a check
showing that she had.        When confronted with this information, respondent
admitted to the thefts.
          {¶ 7} In 2007, a grand jury indicted respondent for aggravated theft of at
least $100,000. Respondent pleaded guilty to a lesser charge of theft, a fourth-




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degree felony. The trial court imposed a 12-month prison sentence, which it
suspended upon the condition that respondent successfully complete five years of
community control.
       {¶ 8} Pursuant to respondent’s admitted thefts, the board found by clear
and convincing evidence that respondent had violated DR1-102(A)(4), 1-
102(A)(6), and 9-102(A) and (B)(3). We accept these findings of misconduct.
                                   Sanction
       {¶ 9} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties violated by the lawyer and the sanctions
imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424,
2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also
weigh evidence of the aggravating and mitigating factors listed in Section 10 of
the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-
5251, 875 N.E.2d 935, ¶ 21. “Because each disciplinary case is unique, we are
not limited to the factors specified in the rule but may take into account ‘all
relevant factors’ in determining what sanction to impose. BCGD Proc.Reg.
10(B).” Dayton Bar Assn. v. Schram, 122 Ohio St.3d 8, 2009-Ohio-1931, 907
N.E.2d 311, ¶ 8.
                   Aggravating and Mitigating Circumstances
       {¶ 10} In mitigation, the board recognized that respondent had no
disciplinary record prior to her felony suspension and has cooperated throughout
the disciplinary proceedings.      The board recognized that respondent’s
psychologist testified that respondent’s gambling and drinking addictions were
the cause of respondent’s stealing. The board also found that respondent has
acknowledged her addictions, is receiving treatment for these addictions, and can
overcome these addictions with continued treatment. The board also found that



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respondent has entered into a settlement with Buckingham’s insurer to pay full
restitution for the money that she stole. Finally, respondent submitted letters of
support from two attorneys and a judge.
        {¶ 11} However, it is equally clear that respondent had a dishonest and
selfish motive in stealing the money. It is also notable that respondent’s conduct
occurred over a two-year period and involved over 30 separate thefts that totaled
over $100,000. Moreover, it was not until she was faced with discrepancies in
one of her client’s bills that respondent admitted to stealing her client’s retainer
fees.
                                   Similar Cases
        {¶ 12} Respondent argues that a two-year suspension with 18 months
stayed on satisfaction of certain conditions is a more appropriate sanction, citing
Cincinnati Bar Assn. v. Washington, 109 Ohio St.3d 308, 2006-Ohio-2423, 847
N.E.2d 435. In Washington, the attorney billed multiple insurance clients $91,000
for work that he did not perform. He also converted $4,000 from two clients for
his own personal use. The board found that Washington had had a cocaine and
alcohol dependence that was the primary cause of his misconduct. Washington
had signed a contract with the Ohio Lawyers Assistance Program (“OLAP”) prior
to his disciplinary hearing, and he had paid full restitution. The court imposed a
two-year suspension with 18 months stayed on the conditions that respondent (1)
be supervised by a monitoring attorney, (2) comply with his OLAP contract, and
(3) commit no more misconduct. Id. at ¶ 9-10.
        {¶ 13} In the instant case, respondent has yet to enter into a contract with
OLAP.      Further, although she has reached a settlement agreement with
Buckingham’s insurer, she has yet to pay the balance on the restitution that she
owes. Finally, and perhaps most significantly, respondent misappropriated funds
on more than 30 separate occasions over a two-year period. Because of these
differences, we hold that respondent’s case is distinguishable from Washington.




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       {¶ 14} When an attorney undertakes a pattern involving numerous acts of
misconduct in converting law-firm funds, we have held that an indefinite
suspension is appropriate. See Toledo Bar Assn. v. Crossmock, 111 Ohio St.3d
278, 2006-Ohio-5706, 855 N.E.2d 1215, ¶ 3, 11 (indefinite suspension for
attorney's misappropriation of over $300,000 in law-firm funds over a ten-year
period); Disciplinary Counsel v. Yajko (1997), 77 Ohio St.3d 385, 389,674 N.E.2d
684 (indefinite suspension for misappropriating law-firm funds on 20 separate
occasions from 20 clients over a seven-year period); Disciplinary Counsel v.
Crowley (1994), 69 Ohio St.3d 554-556, 634 N.E.2d 1008 (indefinite suspension
for misappropriation of approximately $200,000 of law-firm funds from as many
as 17 clients); Columbus Bar Assn. v. Osipow (1994), 68 Ohio St.3d 338, 340, 626
N.E.2d 935 (indefinite suspension for failing to report fees to firm,
misrepresenting expenses, and misappropriating client and law-firm funds).
       {¶ 15} Accordingly, we accept the board’s recommended sanction and
therefore indefinitely suspend respondent from the practice of law in Ohio. We
also accept the board’s recommended conditions on respondent’s petitioning for
reinstatement except for the condition that respondent be in compliance with the
terms of her probation. Rather, we require that she complete all court-imposed
probation prior to petitioning for reinstatement.
       {¶ 16} Accordingly, in addition to the requirements of Gov.Bar R. V(10),
respondent must upon petitioning for reinstatement show that (1) she has entered
into a contract with OLAP and is in compliance with its requirements, (2) she has
completed all court-imposed probation, (3) she is in compliance with the
settlement agreement between her and Federal Insurance Company and is current
on her payment of restitution, and (4) she has received a prognosis from a
qualified health-care professional or alcohol/substance-abuse counselor that she is
able to return to the competent, ethical, professional practice of law. Finally, we




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grant respondent credit for time served under the February 17, 2009 interim
suspension.
       {¶ 17} Costs are taxed to respondent.
                                                             Judgment accordingly.
       MOYER,     C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Nathan A. Ray and Vincent Alfera, for relator.
       Charles E. Grisi, for respondent.
                           ______________________




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