[Cite as Cleveland Metro. Bar Assn. v. Nance, 124 Ohio St.3d 57, 2009-Ohio-5957.]




          CLEVELAND METROPOLITAN BAR ASSOCIATION v. NANCE.
                   [Cite as Cleveland Metro. Bar Assn. v. Nance,
                        124 Ohio St.3d 57, 2009-Ohio-5957.]
Attorneys at law — Misconduct — Conduct adversely reflecting on fitness to
        practice law — One-year suspension with conditional six-month stay.
(No. 2009-1145 — Submitted August 11, 2009 — Decided November 19, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-070.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Donald S. Nance of Cleveland, Ohio, Attorney
Registration No. 0034086, was admitted to the practice of law in Ohio in 1979.
        {¶ 2} The Board of Commissioners on Grievances and Discipline has
recommended that we suspend respondent’s license to practice for one year, but
stay six months of the suspension on conditions, including that he complete
additional legal training in bankruptcy practice and law-practice management and
remit or resolve all fines and costs ordered as a result of his misfilings on behalf
of bankruptcy clients. The board’s recommendation is based on findings that
respondent repeatedly failed to comply with bankruptcy court filing requirements.
Those failures, in addition to his failures to appear as ordered and his concomitant
failure to comply with orders to disgorge fees and pay assessed fines, led to
contempt citations. We agree that respondent’s failings reflected adversely on his
fitness to practice law and accept the board’s recommendation of a one-year
license suspension, stayed in part.
        {¶ 3} Relator, Cleveland Metropolitan Bar Association, charged
respondent with professional misconduct, including violations of DR 1-102(A)(6)
                                 SUPREME COURT OF OHIO




and its successor, Prof.Cond.R. 8.4(h) (both prohibiting conduct that adversely
reflects on a lawyer’s fitness to practice law).1 A panel of three board members
heard the case, including the parties’ stipulations to the cited misconduct, and
recommended the one-year suspension and six-month conditional stay. The board
adopted the panel’s findings of misconduct and recommendation.
        {¶ 4} The parties have not objected to the board’s report.
                                         Misconduct
                                            Count I
        {¶ 5} Respondent began taking bankruptcy cases in 1981. In April 2005,
he filed a Chapter 13 bankruptcy petition on behalf of a client in the United States
Bankruptcy Court for the Northern District of Ohio. In an electronically filed fee-
disclosure statement, respondent mistakenly represented to the court that he had
paid the requisite filing fee when, in truth, his payment had not been accepted.
On motion of the bankruptcy trustee, the court ordered respondent to disgorge
$200 in paid attorney fees. Although respondent paid the missing filing fee later
that April, he then failed for months to comply with the order to disgorge fees.
        {¶ 6} In late December 2005, after respondent failed without explanation
to appear and show cause why he should not be held in contempt, the court
granted the trustee’s motion and held respondent in civil contempt. The court
allowed him ten days to purge the contempt but then began assessing a fine of $10
per day. Respondent has since complied with the order to disgorge fees, and on
December 5, 2008, the court ordered that his outstanding fines and costs, which at
that time exceeded $7,000, be held in abeyance.


1. Relator charged respondent with misconduct under applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the
former and current rules are cited for the same acts, the allegations comprise a single continuing
ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894
N.E.2d 31, ¶ 1, fn. 1.




                                                2
                                 January Term, 2009




       {¶ 7} The parties stipulated and the board found that respondent had
violated DR 1-102(A)(6) and its successor, Prof.Cond.R. 8.4(h), as charged in
Count I. We accept these findings of misconduct.
                                  Counts II and III
       {¶ 8} Respondent also conceded having mishandled two Chapter 13
bankruptcy cases filed in 2006, as alleged in Counts II and III. Respondent failed
to file on behalf of each client the required signed form setting forth the “Rights
and Responsibilities of Chapter 13 Debtors and Attorneys.” According to the
stipulations, the failure to file this form, which reported the preliminary attorney-
fee payment by the debtor and the fees anticipated upon confirmation of the
reorganization plan, precludes the allowance of attorney fees other than by formal
itemized application to the court.
       {¶ 9} The same trustee appointed to oversee the Count I bankruptcy filed
a motion in both the Count II and III cases for an order requiring respondent to
disgorge paid attorney fees. The court ordered respondent in August 2006 to
disgorge $500 to the debtor in Count II and in January 2007 to disgorge $400 to
the debtor in Count III. When respondent failed to pay, the trustee moved the
court to cite him for civil contempt. Respondent again failed without explanation
to appear at hearings on the motions, and the court granted both. In March 2007,
the court assessed a $25 fine for each day that respondent failed to remit fees to
the debtor’s estate in Count II. In October 2007, after denying respondent’s
requests for relief, the court assessed a $25 fine for each day that he failed to
remit fees to the debtor’s estate in Count III.
       {¶ 10} Respondent eventually paid $500 and $400, respectively, to the
debtors’ estates. On December 2, 2008, upon respondent’s motion to reinstate his
filing privileges, the court ordered the fines and costs assessed in the Count II
debtor’s case, which at that time exceeded $12,000, to be held in abeyance. The
record does not reflect whether a similar order was issued relative to the more



                                           3
                            SUPREME COURT OF OHIO




than $6,500 in fees and costs assessed in the Count III debtor’s case, which
ultimately resulted in a Chapter 7 discharge through the efforts of successor
counsel.
       {¶ 11} As to each of Counts II and III, the parties stipulated and the board
found that respondent had violated DR 1-102(A)(6) and its successor,
Prof.Cond.R. 8.4(h). We accept these findings of misconduct.
                                    Sanction
       {¶ 12} In recommending a sanction for this misconduct, the board
considered the aggravating and mitigating factors listed in BCGD Proc.Reg.
10(B). As an aggravating factor under BCGD Proc.Reg. 10(B)(1)(a), the parties
acknowledged prior discipline imposed for respondent’s misuse of his client trust
account – a six-month suspension from practice on July 9, 2008, stayed on
conditions including no misconduct during the stay. See Cuyahoga Cty. Bar
Assn. v. Nance, 119 Ohio St.3d 55, 2008-Ohio-3333, 891 N.E.2d 746. The parties
also stipulated that respondent had committed multiple offenses, an aggravating
factor under BCGD Proc.Reg. 10(B)(1)(d). Both considerations weigh against
respondent.
       {¶ 13} Though he has since regained electronic-filing privileges, the
bankruptcy court had revoked those privileges along with ordering the sanctions
for respondent’s misfilings and contempt. The parties stipulated to the mitigating
effect of these orders under BCGD Proc.Reg. 10(B)(2)(f) (recognizing the
mitigating effect of penalties or sanctions imposed outside the disciplinary
system). The parties also stipulated that respondent’s clients were not prejudiced
by his misconduct. We accept these factors as mitigating.
       {¶ 14} Contrary to the parties’ stipulation, however, we do not see any
mitigation in the fact that the same bankruptcy trustee moved for sanctions against
respondent in each of the underlying cases. Nothing in the record suggests that
the trustee acted improperly.    Respondent also referred to his having health




                                        4
                                January Term, 2009




problems and a mental disability during the events at issue; however, he did not
establish that either condition was mitigating as having contributed to cause his
misconduct. Cf. BCGD Proc.Reg. 10(B)(2)(g)(i) and (ii).
        {¶ 15} The board also expressed misgivings about respondent’s inability
to reconcile events to which he had initially stipulated but could not clearly recall
at the hearing. But rather than find respondent untruthful, the board inferred only
that he was ill prepared for the hearing. The board also concluded that respondent
did not appreciate the professional irresponsibility in failing to appear at his own
contempt hearings. The board thus found as an aggravating factor under BCGD
Proc.Reg. 10(B)(1)(g) that respondent had refused to acknowledge the wrongful
nature of his conduct.
        {¶ 16} As to his failure to comply with the various sanctions ordered by
the bankruptcy court, respondent cited his declining practice and lack of financial
resources to pay. In fact, he did not repay the necessary attorney fees for almost
three years after the first disgorgement order.        Respondent’s contempt fines
remain outstanding, and he did not know whether he still owed them, given the
orders holding some or all of the fines in abeyance.
        {¶ 17} The board also considered sanctions imposed in similar cases:
        {¶ 18} “Relator is seeking a 12 month suspension, with 6 months stayed
on the conditions that respondent commits no further misconduct during the
period of the stayed suspension and attends 6 additional CLE (continuing legal
education) hours in law practice management or bankruptcy.
        {¶ 19} “Respondent asks that any additional sanction be stayed in its
entirety.
        {¶ 20} “Relator cites Mahoning Cty. Bar Assn. v. Olivito, 110 Ohio St.3d
64, 2006-Ohio-3564 [850 N.E.2d 702], in support of its proposed sanction. Even
though Olivito’s actions occurred while representing bankruptcy clients, the panel




                                         5
                              SUPREME COURT OF OHIO




finds that Cincinnati Bar Assn. v Heisler, 119 Ohio St. 3d 573, 2008-Ohio-5221
[895 N.E.2d 839], is more on point."
       {¶ 21} Heisler defaulted on court-ordered child-support payments, but as
the board observed, his failure to pay child support was largely the result of his
poor financial situation. We therefore suspended him from practice for one year
but credited toward that suspension the time his license had already been under
suspension pursuant to Gov.Bar R. V(5) (interim suspension upon notice of
default on child support). We also conditioned his reinstatement upon compliance
with Cincinnati Bar Assn. v. Heisler, 116 Ohio St.3d 1448, 2007-Ohio-6842, 878
N.E.2d 27 (our order finding Heisler in contempt for his failure to pay costs in a
previous unrelated disciplinary proceeding).
       {¶ 22} The parties have not objected to the board’s recommendation. And
in the absence of any precedent more analogous, Heisler is authority for imposing
a sanction of less than a one-year actual suspension when a lawyer’s financial
distress is a major factor in the lawyer’s failure to pay funds under court order.
The recommended one-year suspension with a six-month stay is appropriate,
provided that respondent commit no further misconduct, complete six hours of
CLE in law-practice management and bankruptcy practice, in addition to the
general requirements of Gov.Bar R. X, and remit or resolve the payment of all
fines and costs with the court.
       {¶ 23} Respondent is therefore suspended from the practice of law in
Ohio for one year; however, the last six months of the suspension are stayed on
the conditions that respondent commit no further misconduct, complete six hours
of CLE in addition to the general requirements of Gov.Bar R. X in bankruptcy
practice and law-practice management, and remit or resolve the payment of all
fines and costs assessed by the bankruptcy court. If respondent fails to comply
with the conditions of the stay, the stay will be lifted and respondent will serve the
entire one-year suspension.




                                          6
                               January Term, 2009




       {¶ 24} Costs are taxed to respondent.
                                                            Judgment accordingly.
       MOYER,    C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,   O’CONNOR,
LANZINGER, and CUPP, JJ., concur.
       O’DONNELL, J., concurs but would stay the entire suspension.
                               __________________
       Heather M. Zirke, Bar Counsel, and David O. Simon, for relator.
       James Alexander Jr., for respondent.
                          ______________________




                                           7
