[Cite as Disciplinary Counsel v. Freeman, 126 Ohio St.3d 389, 2010-Ohio-3824.]




                       DISCIPLINARY COUNSEL v. FREEMAN.
                     [Cite as Disciplinary Counsel v. Freeman,
                       126 Ohio St.3d 389, 2010-Ohio-3824.]
Attorneys at law — Misconduct — Continuing to practice law after suspension —
        Failure to notify court of suspension — Indefinite suspension.
   (No. 2010-0346 — Submitted April 20, 2010 — Decided August 24, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 09-008.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Henry Roosevelt Freeman of Tallmadge, Ohio,
Attorney Registration No. 0022713, was admitted to the practice of law in Ohio in
1981. On August 13, 2008, this court imposed a one-year suspension with six
months stayed on conditions based upon respondent’s failure to maintain proper
accounting of client funds and his improper use of trust accounts as personal
checking accounts. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-
Ohio-3836, 894 N.E.2d 31.
        {¶ 2} The Board of Commissioners on Grievances and Discipline now
recommends that we indefinitely suspend respondent from the practice of law
based upon his (1) continued representation of two clients during his suspension
and (2) failure to notify opposing counsel or the court of his suspension. Neither
party has objected to the board’s report. For the reasons that follow, we agree that
respondent’s actions violated the Rules of Professional Conduct and that an
indefinite suspension, with reinstatement conditioned upon his compliance with
the conditions set forth in his prior disciplinary action, is appropriate.
                                       Misconduct
                              SUPREME COURT OF OHIO




          {¶ 3} As part of respondent’s suspension order in his prior disciplinary
case, this court ordered respondent to immediately cease the practice of law in any
form; forbade him to appear on behalf of another before any court, judge,
commission, board, administrative agency, or any other public authority; ordered
him to notify all opposing counsel and unrepresented parties of his suspension
within 30 days; and ordered him to file a notice of disqualification with each court
in which he had a matter pending.
          {¶ 4} While the board made no finding in this regard, respondent
admitted that he had received actual notice of his suspension from the practice of
law and that he had read this court’s opinion in that case. Although he denied
having received or read a copy of the court’s order of suspension, and no evidence
in this record establishes that respondent was served with that order, respondent
conceded that he had received several certified mailings from this court but that
he “probably did not open [them] up.” In any event, the duties of a suspended
attorney are stated in Gov.Bar R. V(8)(E), of which respondent is charged with
notice.
          {¶ 5} In a two-count complaint, relator, Disciplinary Counsel, charged
respondent with continuing to represent clients after this court suspended his
license to practice law and failing to notify either opposing counsel or the courts
of his suspension. A panel of the Board of Commissioners on Grievances and
Discipline conducted a hearing and issued a report containing findings of fact,
conclusions of law, and a recommendation.
          {¶ 6} With respect to count one, the panel and board found that
respondent represented a client at a September 11, 2008 contested-custody
hearing without informing his client, opposing counsel, or the court that his
license had been suspended approximately one month earlier. On September 19,
2008, respondent went to inform the court that he would be late for the continued
hearing due to his participation in another proceeding. The court, however, had




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independently learned of his suspension and informed him that he could not
appear on behalf of his client. Respondent admitted that the allegations in count
one are true.
       {¶ 7} With regard to count two, the panel and board found that
respondent had appeared at a September 19, 2008 final pretrial hearing on behalf
of a client. Without informing opposing counsel or the court’s staff attorney of
his suspension, respondent discussed possible settlement of the case. At the
conclusion of that hearing, citing a disagreement with his client rather than his
suspension from the practice of law, he orally moved the court for leave to
withdraw as counsel. Both the panel and the board rejected respondent’s self-
serving claims that he was not representing his client as “simply not credible.”
       {¶ 8} Based upon these findings, the board concluded, and we agree, that
clear and convincing evidence demonstrates that respondent’s conduct in each of
the two counts violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d)
(prohibiting a lawyer from engaging in “conduct that is prejudicial to the
administration of justice” ), 8.4(h) (prohibiting a lawyer from engaging in conduct
that adversely reflects on the lawyer's fitness to practice law), and 5.5(a)
(prohibiting a lawyer from practicing law in violation of the regulation of the
legal profession in the jurisdiction) and Gov.Bar R. V(8)(E) (setting forth the
duties of a disbarred or suspended attorney).
                                     Sanction
       {¶ 9} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated 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(B) of the Rules and Regulations Governing Procedure on



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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.
       {¶ 10} The panel and board found as aggravating factors that respondent
had a prior disciplinary offense, had engaged in a pattern of misconduct involving
multiple offenses, had failed to fully acknowledge the wrongfulness of his
conduct by claiming that his actions with respect to count two did not constitute
the practice of law, and had failed to comply with this court’s August 13, 2008
suspension order requiring him to file an affidavit of compliance and pay the costs
of that disciplinary action. See BCGD Proc.Reg. 10(B)(1)(a), (c), (d), and (g).
       {¶ 11} While the board acknowledged respondent’s testimony that he
remained involved with the Ohio Lawyers Assistance Program (“OLAP”) and
was dealing with depression, the board noted that respondent offered no
independent evidence of his current involvement with that program. The board
therefore did not explicitly consider it as a factor in mitigation, and the board
found no other mitigating factors. See BCGD Proc.Reg. 10(B)(2)(a) through (h).
       {¶ 12} Having weighed respondent’s conduct, the aggravating and
mitigating circumstances, and the sanctions imposed in similar cases, the board
recommended that we indefinitely suspend respondent from the practice of law.
Further, as a condition to his reinstatement, the board recommended that
respondent be required to comply with all the conditions set forth in his prior
disciplinary action.
       {¶ 13} We have stated, “The normal penalty for continuing to practice law
while under suspension is disbarment.” Disciplinary Counsel v. Koury (1997), 77
Ohio St.3d 433, 436, 674 N.E.2d 1371. Relator, however, has not advocated
disbarment and instead argues that we should indefinitely suspend respondent
from the practice of law. In support of this lesser sanction, relator notes that in
respondent’s earlier disciplinary case, there was evidence that he had been




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diagnosed with anxiety and depression and that it was his doctor’s opinion that he
was not yet capable of providing legal services because his recovery was
incomplete.
        {¶ 14} As the board observed, we have routinely imposed indefinite
suspensions for attorneys who continued to practice law after we have suspended
their licenses for CLE and registration violations. See, e.g., Disciplinary Counsel
v. Higgins, 117 Ohio St.3d 473, 2008-Ohio-1509, 884 N.E.2d 1070; Toledo Bar
Assn. v. Crandall, 98 Ohio St.3d 444, 2003-Ohio-1637, 786 N.E.2d 872; Akron
Bar Assn. v. Barron (1999), 85 Ohio St.3d 167, 707 N.E.2d 850. We have also
imposed indefinite suspensions when attorneys have continued to practice law
during license suspensions imposed for other forms of misconduct. See, e.g.,
Columbus Bar Assn. v. Winkfield, 107 Ohio St.3d 360, 2006-Ohio-6, 839 N.E.2d
924 (imposing an indefinite suspension on an attorney who practiced law during
the suspension imposed in Columbus Bar Assn. v. Winkfield (2001), 91 Ohio St.3d
364, 745 N.E.2d 411, for multiple violations including neglect of client matters
and failure to promptly pay funds to a client); and Disciplinary Counsel v.
Jackson (1999), 86 Ohio St.3d 104, 712 N.E.2d 122 (imposing an indefinite
suspension on an attorney who practiced law during a reciprocal suspension
imposed following his suspension in Hawaii for misconduct requiring payment of
restitution to clients).
        {¶ 15} Having weighed respondent’s conduct and the aggravating and
mitigating factors and considered the sanctions imposed for comparable conduct,
we agree that the proper sanction for respondent’s misconduct is an indefinite
suspension from the practice of law. Accordingly, Henry Roosevelt Freeman is
indefinitely suspended from the practice of law in the state of Ohio. Before he
may petition for reinstatement, respondent must comply with the following
conditions: (1) extend his OLAP contract for at least two years from the date of
our order in this case, (2) abide by the obligations imposed on him by his OLAP



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contract, (3) continue his treatment for anxiety and depression and provide proof
of his treatment and any other medical information that may be requested by his
OLAP-contract monitor, and (4) refrain from any disciplinary violations. Costs
are taxed to respondent.
                                                          Judgment accordingly.
       PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
       BROWN, C.J., not participating.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger,
Assistant Disciplinary Counsel, for relator.
       Henry Roosevelt Freeman, pro se.
                            ______________________




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