[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Cheselka, Slip Opinion No. 2019-Ohio-5286.]




                                        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
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2019-OHIO-5286
                      DISCIPLINARY COUNSEL v. CHESELKA.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as Disciplinary Counsel v. Cheselka, Slip Opinion No.
                                   2019-Ohio-5286.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
         including failing to act with reasonable diligence in representing a client,
         and the Rules for the Government of the Bar—Two-year suspension, with
         the second year stayed on conditions.
    (No. 2018-1764—Submitted May 8, 2019—Decided December 24, 2019.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-050.
                                 __________________
         Per Curiam.
         {¶ 1} Respondent, Michael Joseph Cheselka Jr., of Cleveland, Ohio,
Attorney Registration No. 0076667, was admitted to the practice of law in Ohio in
2003.
                             SUPREME COURT OF OHIO




       {¶ 2} In a January 2018 amended complaint, relator, disciplinary counsel,
charged Cheselka with 28 violations of the Rules of Professional Conduct arising
from his representation of six separate clients in criminal matters. Relator alleged
that among other violations, Cheselka failed to provide competent representation,
failed to act with reasonable diligence and promptness, failed to reasonably
communicate with clients, failed to deposit a fee paid in advance into his client trust
account, made a false statement of material fact to a court and to the Board of
Professional Conduct in this disciplinary proceeding, and failed to cooperate in the
investigation of three client grievances.
       {¶ 3} After a panel of the board conducted a hearing, the board issued a
report in which it found that Cheselka committed 19 rule violations and
recommended that we dismiss eight alleged rule violations. On those findings, the
board recommended that we suspend Cheselka from the practice of law for two
years, with one year stayed on conditions, and order him to serve a one-year period
of monitored probation upon reinstatement. No objections have been filed.
       {¶ 4} We adopt the board’s findings of misconduct with the exception of
one violation that was not alleged in relator’s complaint, dismiss the eight
remaining alleged rule violations, and adopt the board’s recommended sanction.
                                    Misconduct
                        Count I: The Jojwan Martin Matter
       {¶ 5} In 2008, Jojwan Martin was convicted of murder and sentenced to 18
years to life in prison. His conviction rested largely upon the testimony of two
eyewitnesses, including Earwin Watters, who was in federal custody and awaiting
sentencing on criminal charges at the time of Martin’s trial. The Eighth District
Court of Appeals affirmed Martin’s conviction.
       {¶ 6} In early 2011, Watters contacted Martin’s mother, Cynthia Bester,
and told her that he had given false testimony against Martin under pressure from
the police and prosecutors, that he had not actually witnessed Martin kill anyone,




                                            2
                                January Term, 2019




and that he wanted to recant his testimony. On March 14, 2011, Watters executed
a handwritten affidavit stating that he had been pressured to give false testimony at
Martin’s trial to obtain a lesser sentence in his own criminal case. Bester sent
Watters’s affidavit and other materials regarding Martin’s case to the Ohio
Innocence Project at the University of Cincinnati College of Law, but the project
declined to take the case and returned the file to Bester in May 2012.
       {¶ 7} Bester and her mother met with Cheselka in November 2012 and gave
him Watters’s affidavit. Cheselka agreed to file a petition for postconviction relief
on Martin’s behalf for a flat fee of $10,000 (plus $525 for a copy of the trial
transcript), which Bester and her mother paid in installments from 2013 to 2015.
       {¶ 8} Between August 2013 and March 2016, Cheselka asked Watters to
write and execute four additional affidavits—which he later claimed were
necessary to correct procedural and substantive defects in Watters’s original
affidavit. But Cheselka did not file Martin’s petition for postconviction relief until
May 13, 2016—approximately three and a half years after he first met with Bester
and received Watters’s 2011 affidavit. And even then, Watters had not signed the
affidavit that Cheselka notarized and submitted with Martin’s petition for
postconviction relief.
       {¶ 9} Because Cheselka filed the petition more than 365 days after the
transcript was filed in Martin’s direct appeal, he was required to show that Martin
had been unavoidably prevented from discovering the facts that supported the
petition. See R.C. 2953.21(A)(2) and 2953.23(A)(1). In the petition, Cheselka
explained that Martin “was unavoidably delayed beyond the 365 day deadline
because Earwin Watters only provided his unsolicited affidavit in 2016, well-past
the statute’s general rule and under circumstances unanticipated by [Martin].”
(Emphasis added.) Cheselka failed to mention that Watters first came forward to
recant his testimony in 2011 and that he had executed four previous affidavits.
Cheselka continued that deception in his May 2017 response to relator’s letter of




                                          3
                             SUPREME COURT OF OHIO




inquiry, in which he affirmatively stated that “[t]here was no affidavit provided in
2011” and that “[t]here was never a proper affidavit executed before March of
2016.” And at his disciplinary hearing, Cheselka admitted that there was no legally
significant difference between the first and final affidavits. The trial court denied
Martin’s postconviction petition without an opinion.
       {¶ 10} The board found that Cheselka’s conduct violated Prof.Cond.R. 1.3
(requiring a lawyer to act with reasonable diligence in representing a client), 3.3(a)
(prohibiting a lawyer from knowingly making a false statement of fact or law to a
tribunal), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of
material fact in connection with a disciplinary matter), and 8.4(c) (prohibiting a
lawyer from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation). Citing the insufficiency of the evidence, however, the board
recommends that we dismiss relator’s allegations that Cheselka had failed to
reasonably communicate with Martin and that Cheselka had failed to promptly
refund any unearned portion of his fee at the conclusion of his representation. We
adopt the board’s findings of misconduct and dismiss the remaining allegations of
misconduct with respect to this count.
                       Count II: The Barbara Clark Matter
       {¶ 11} In October 2015, Barbara Clark pleaded guilty to stealing more than
$188,000 of United States Social Security Administration Supplemental Security
Income benefits by continuing to collect her mother’s benefits for approximately
30 years after her mother’s death. Due to Clark’s age and deteriorating health, her
counsel urged the trial court to deviate from the guideline sentence of 18 to 24
months of imprisonment and confine her at home. On February 17, 2016, the court
sentenced Clark to six months in prison followed by three years of supervised
release.
       {¶ 12} Shortly after the sentencing hearing—and before the trial court
issued its sentencing entry—Clark’s son met with Cheselka and expressed his




                                          4
                                 January Term, 2019




concern that Clark would die in prison. Cheselka agreed to file an emergency
motion to modify Clark’s sentence. Cheselka had never filed such a motion before
but was aware that pursuant to 18 U.S.C. 3582(c), once the trial court issued its
sentencing entry, only the director of the Bureau of Prisons was permitted to move
the court to modify the sentence.
         {¶ 13} Cheselka understood that the trial court could issue the sentencing
entry at any time, but he took no immediate action. He testified that he was waiting
for Clark’s family to respond to his request to compel medical records documenting
her deteriorating health. In contrast, Clark testified that once her family paid
Cheselka, all communication with him ceased. And although Clark’s son called
and left multiple messages, Cheselka called him only one time, to ask for more
money.
         {¶ 14} Approximately three weeks after Clark’s sentencing hearing, her son
arranged for a physician’s letter to be faxed to Cheselka’s office. It consisted of a
one-paragraph summary of Clark’s medical history followed by the doctor’s
opinion that “incarceration would place even further stress on her heart, possibly
worsening her cardiac condition.” Cheselka waited nearly two more months before
he filed the emergency motion, which the board found was just “an abbreviated
recap” of trial counsel’s original sentencing memorandum. The motion offered no
additional medical evidence and very little in the way of new argument or legal
authority. The trial court summarily denied the motion one day after it was filed.
         {¶ 15} At his disciplinary hearing, Cheselka attempted to justify the filing
of the motion based on his belief that “[a] federal judge can do whatever a federal
judge wants to do,” regardless of statutory prohibitions and case authority. But the
board found that his explanation “bespeaks of more than just a lack of diligence”—
“[i]t demonstrates a lack of competence.” The board found that Cheselka’s conduct
violated Prof.Cond.R. 1.1 (requiring a lawyer to provide competent representation
to a client), 1.3, 1.4(a)(3) (requiring a lawyer to keep a client reasonably informed




                                          5
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about the status of a matter), and 1.4(a)(4) (requiring a lawyer to comply as soon as
practicable with reasonable requests for information from a client). But having
found that Cheselka provided incompetent representation to Clark, the board
declined to find that he violated Prof.Cond.R. 1.4(b) (requiring a lawyer to explain
a matter to the extent reasonably necessary to permit a client to make informed
decisions regarding the representation) by failing to explain to Clark or her family
that which he did not know. The board also recommended that we dismiss another
alleged violation based on the insufficiency of the evidence. We adopt the board’s
findings of misconduct and dismiss the remaining allegations of misconduct with
respect to this count.
                         Count VI: The Darryl Hill Matter
         {¶ 16} In June 2015, Darryl Hill pleaded guilty to a misdemeanor and three
felonies and was sentenced to 12 years in prison.          Hill’s fiancée, Kimberly
Cleveland, retained Cheselka to appeal Hill’s convictions. Cleveland signed a
written fee agreement and paid a flat fee of $5,000 in installments, but Cheselka
did not deposit any portion of the fee into his client trust account.
         {¶ 17} On August 1, 2015, Cheselka filed an untimely appeal of Hill’s
convictions and sentence—without an accompanying motion for leave to file a
delayed appeal—but he did no other work on Hill’s behalf. Hill later filed a pro se
motion for delayed appeal. The court initially dismissed the appeal but granted the
motion for delayed appeal on reconsideration after Hill alleged that Cheselka had
failed to provide effective assistance of counsel.
         {¶ 18} At Cheselka’s disciplinary hearing, Cleveland testified that she had
made multiple inquiries about the status of Hill’s case but that Cheselka had
virtually no memory of the matter and that each conversation was “like starting all
over.”    Although she participated in several three-way telephone calls with
Cheselka and Hill, she had to go to the courthouse to learn that Cheselka had filed
an untimely notice of appeal on Hill’s behalf. By July 2017, Cleveland was




                                           6
                                January Term, 2019




frustrated with Cheselka’s inaction and went to his office to demand a refund.
Cheselka, however, was not there, and shortly thereafter, he ceased all
communication with her.
       {¶ 19} Cheselka maintained that Hill’s goal was not to prevail on appeal but
to induce the victim of his offenses to recant and then use that evidence to withdraw
his guilty plea. But Hill testified that he had not agreed to employ that strategy in
lieu of a direct appeal of his convictions—and that Cheselka never told him that he
had not followed through with the direct appeal. He also complained that Cheselka
did not return his phone calls, took months to respond to his requests to discuss his
case in person at the prison, and took almost a year to provide requested copies of
his plea- and sentencing-hearing transcripts.
       {¶ 20} In November 2017, Hill wrote to Cheselka to terminate his
representation and demand a refund.          In response, Cheselka agreed to give
Cleveland a partial refund. At Cheselka’s disciplinary hearing, he agreed that he
owed Cleveland a $2,500 refund.
       {¶ 21} The board found that Cheselka’s conduct in this count violated
Prof.Cond.R. 1.3, 1.15(c) (requiring a lawyer to deposit into a client trust account
legal fees and expenses that have been paid in advance), 1.4(a)(3), and 1.4(a)(4),
and we adopt those findings. However, we reject the board’s finding that Cheselka
also violated Prof.Cond.R. 1.16 by failing to refund the unearned portion of Hill’s
fee, see Prof.Cond.R. 1.16(e) (requiring a lawyer to promptly refund any unearned
fee upon the lawyer’s withdrawal from employment), because relator did not allege
that violation with respect to this count. See Cincinnati Bar Assn. v. Rothermel,
112 Ohio St.3d 443, 2007-Ohio-258, 860 N.E.2d 754, ¶ 9.
                      Count III: The Adrian Williams Matter
       {¶ 22} On February 3, 2014, Adrian Williams pleaded guilty to two felonies
and the state agreed to recommend that he receive a five-year prison sentence. The




                                         7
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trial court did not inform Williams that it was not bound by the parties’ agreement
and sentenced him to eight years in prison.
       {¶ 23} Williams’s daughter paid Cheselka $5,135 to appeal her father’s
convictions, and Cheselka filed a notice of appeal on Williams’s behalf on April 4,
2014. But he later dismissed the appeal and filed a motion to withdraw Williams’s
guilty plea and vacate his sentence based on the trial court’s failure to advise
Williams that it was not bound by his plea agreement. The trial court denied the
motion to withdraw the guilty plea, and Cheselka appealed that order. The court of
appeals held that res judicata precluded Williams’s claim because he could have
advanced that argument in his direct appeal. State v. Williams, 8th Dist. Cuyahoga
No. 103144, 2016-Ohio-2629.
       {¶ 24} At his disciplinary hearing, Cheselka explained that he decided to
dismiss Williams’s direct appeal based on his associate’s erroneous research that
led him to believe that he could appeal only Williams’s sentence—and not the
underlying guilty plea—at that time. Cheselka admitted his error to Williams’s
family and explained that they could pursue another appeal because he had
provided ineffective assistance of counsel.
       {¶ 25} Based on this conduct, the board found and we agree that Cheselka
failed to provide competent representation to Williams in violation of Prof.Cond.R.
1.1. In accord with the board’s recommendation, we dismiss one additional alleged
violation with respect to this count.
               Counts IV and V: The Franklyn Williams and Dale Rodano Matters
       {¶ 26} Counts IV and V of relator’s amended complaint arise from
Cheselka’s representation of Franklyn Williams and Dale Rodano in separate
criminal matters.     The board recommends that we dismiss the underlying
allegations of misconduct based on the insufficiency of the evidence. We accept
the board’s recommendation and dismiss one alleged violation with respect to
Count IV and two alleged violations with respect to Count V.




                                         8
                                January Term, 2019




                         Cheselka’s Failure to Cooperate
       {¶ 27} In light of Cheselka’s admitted failure to respond to multiple letters
of inquiry regarding the grievances filed by Adrian Williams, Franklyn Williams,
and Dale Rodano, the board found clear and convincing evidence that Cheselka
violated Prof.Cond.R. 8.1(b) and Gov.Bar R. V(9)(G) (both requiring a lawyer to
cooperate in a disciplinary investigation) as charged in Counts III, IV, and V of
relator’s amended complaint. We accept those findings of misconduct.
                                      Sanction
       {¶ 28} 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.
       {¶ 29} The board found eight aggravating factors in this case. Specifically,
Cheselka acted with a dishonest or selfish motive, committed multiple offenses,
engaged in a pattern of misconduct, failed to cooperate in the disciplinary process,
submitted false statements in the disciplinary process, refused to acknowledge the
wrongful nature of his conduct, caused harm to vulnerable clients, and failed to
make restitution. See Gov.Bar R. V(13)(B)(2) through (9).
       {¶ 30} As mitigating factors, the board found that Cheselka had no prior
discipline in his 15-year legal career, during which he had tried tough cases as a
low-cost criminal trial lawyer, and that he had submitted six letters attesting to his
good character and reputation. See Gov.Bar R. V(13)(C)(1) and (5). The board
also attributed mitigating effect to the stress brought on by his parents’ declining
health and their deaths in June 2015 and September 2016. A clinical and forensic
psychologist diagnosed Cheselka with depression and anxiety and theorized that
those conditions may have kept Cheselka from responding to some of relator’s
letters of inquiry—but she also testified that she did not see any evidence that his
conditions had affected the quality of his legal representation. The board was not




                                          9
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persuaded by the psychologist’s explanation that Cheselka’s disorders ebbed and
flowed. Noting that Cheselka’s disorders seemed to ebb whenever they could have
compromised his ability to practice law and seemed to flow only when it was
necessary to cooperate with relator’s investigation, the board attributed little
mitigating effect to the disorders. See Gov.Bar R. V(13)(C)(7).
       {¶ 31} Cheselka argued that a one-year suspension, fully stayed on the
condition that he make restitution of $2,500 in the Hill matter, was the appropriate
sanction for his misconduct. Relator, on the other hand, argued that Cheselka
should be suspended for two years with no stay, ordered to make restitution, and
required to serve two years of monitored probation upon his reinstatement to the
practice of law.
       {¶ 32} While recognizing that Cheselka had committed significant ethical
violations, the board noted that much of his misconduct arose from his efforts to
“do too much with too little during a discrete period of time when his personal life
was unsettled.” The board therefore considered the facts of this case to be akin to
those in three cases in which we suspended attorneys for two years with the second
year stayed on conditions and ordered them to serve a one-year period of monitored
probation—Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297, 2011-Ohio-3181,
951 N.E.2d 775; Disciplinary Counsel v. Talikka, 135 Ohio St.3d 323, 2013-Ohio-
1012, 986 N.E.2d 954; and Toledo Bar Assn. v. Stewart, 135 Ohio St.3d 316, 2013-
Ohio-795, 986 N.E.2d 947.
       {¶ 33} Folwell neglected several client matters, provided incompetent
representation to one client, failed to promptly refund unearned fees, failed to
maintain required trust-account records, and engaged in dishonest conduct in two
client matters. As aggravating factors, we found that he had acted with a dishonest
or selfish motive, engaged in a pattern of misconduct, and committed multiple
offenses. Mitigating factors consisted of his clean disciplinary history and his
cooperation in the disciplinary proceeding.




                                        10
                                January Term, 2019




       {¶ 34} Talikka neglected several client matters, failed to inform two of
those clients that their cases had been dismissed, failed to refund unearned fees,
failed to maintain required trust-account records, and engaged in dishonesty, fraud,
deceit, or misrepresentation in five client matters, among other misconduct.
Although Talikka had acted with a dishonest or selfish motive, engaged in a pattern
of misconduct, committed multiple offenses, caused harm to vulnerable clients, and
initially failed to make restitution, we also found he had no prior discipline in more
than 40 years of practice, had taken on more work than he could handle to maintain
his self-esteem as he faced significant health problems, had accepted full
responsibility for his misconduct, and had submitted several letters attesting to his
good character.
       {¶ 35} Similarly, Stewart failed to provide competent and diligent
representation to several clients, failed to reasonably communicate with several
clients, failed to return client files and unearned fees after his representation was
terminated, and failed to cooperate in several of the ensuing disciplinary
investigations. Nonetheless, we found that Stewart’s clean disciplinary record and
difficult personal circumstances at the time he committed some of his misconduct
outweighed the aggravating effect of his pattern of misconduct, multiple offenses,
failure to cooperate in the disciplinary process, failure to acknowledge the wrongful
nature of his misconduct, and efforts to downplay the gravity of that misconduct.
       {¶ 36} After observing Cheselka’s character, testimony, and demeanor
during his four-day disciplinary hearing, the panel was convinced—and the board
agreed—that removing Cheselka from the legal marketplace for two years would
do no more to protect the public than removing him for two years with one year
stayed on conditions designed to address his poor management practices and the
stress of his chosen area of practice. Having reviewed the record and considered
Cheselka’s misconduct, the relevant aggravating and mitigating factors, and the
sanctions we have imposed in comparable cases, we agree.




                                         11
                            SUPREME COURT OF OHIO




       {¶ 37} Accordingly, Michael Joseph Cheselka Jr. is suspended from the
practice of law in Ohio for two years, with the second year stayed on the conditions
that he (1) engage in no further misconduct, (2) make restitution of $2,500 within
60 days of the date of this order to Kimberly Cleveland relative to Cheselka’s
representation of Darryl Hill, (3) submit to an evaluation by the Ohio Lawyers
Assistance Program (“OLAP”), and (4) pay the costs of these proceedings. If
Cheselka fails to comply with any condition of the stay, the stay will be lifted and
he will serve the entire two-year suspension. In addition to the reinstatement
requirements set forth in Gov.Bar R. V(24), Cheselka shall be required to
demonstrate that he has complied with any treatment or counseling
recommendations arising from his OLAP evaluation and has completed six hours
of continuing legal education focused on law-office management in addition to the
requirements of Gov.Bar R. X. Upon reinstatement to the practice of law, he shall
serve a one-year term of monitored probation in accordance with Gov.Bar R. V(21).
                                                            Judgment accordingly.
       O’CONNOR, C.J., and FRENCH and FISCHER, JJ., concur.
       KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
       DONNELLY and STEWART, JJ., not participating.
                               _________________
       KENNEDY, J., concurring in part and dissenting in part.
       {¶ 38} I agree with the court’s determination that a two-year suspension
from the practice of law, with the second year conditionally stayed, is the
appropriate sanction for the misconduct committed by respondent, Michael Joseph
Cheselka Jr. I also agree with the court’s imposition of monitored probation.
However, because Gov.Bar R. V(21) requires this court to impose specific
conditions on any term of probation we impose, I disagree with the court’s decision
not to impose any specific conditions on Cheselka’s probation.




                                        12
                                January Term, 2019




       {¶ 39} Our decisions do not reflect a consistent approach to imposing
conditions when sanctioning respondents in attorney-discipline cases.             For
example, in some cases, this court simply states, when ordering probation, that a
respondent is on probation for a set term, e.g., Akron Bar Assn. v. DeLoach, 143
Ohio St.3d 39, 2015-Ohio-494, 34 N.E.3d 88, ¶ 20, while in other instances, we
specify detailed conditions of probation designed to protect the public and assist
the respondent in returning to the ethical practice of law, e.g., Disciplinary Counsel
v. Bennett, 146 Ohio St.3d 237, 2016-Ohio-3045, 54 N.E.3d 1232, ¶ 19. Or, as
another example, when we order restitution, it is sometimes as a condition of future
reinstatement to the practice of law, e.g., Disciplinary Counsel v. Gonzalez, 138
Ohio St.3d 320, 2014-Ohio-851, 6 N.E.3d 1149, ¶ 35, 39, sometimes as a condition
of the stay, e.g., Disciplinary Counsel v. Ford, 133 Ohio St.3d 105, 2012-Ohio-
3915, 976 N.E.2d 846, ¶ 27, and sometimes as a condition of probation, e.g.,
Disciplinary Counsel v. Floyd, 74 Ohio St.3d 599, 600, 660 N.E.2d 1150 (1996).
       {¶ 40} This scattershot approach may allow the court flexibility in the
disciplinary process—but only at the price of predictability and sometimes
coherence.
       {¶ 41} As a case in point, the court today orders Cheselka, as a condition of
the stay on the second year of his suspension, to submit to an evaluation by the
Ohio Lawyers Assistance Program (“OLAP”), and his compliance with any
treatment or counseling recommendations arising from his OLAP evaluation is a
condition of his future reinstatement to the practice of law. However, continuing
compliance with OLAP’s recommendations appears to be unenforceable after
reinstatement, because it is not a condition of the stay or of monitored probation.
Similarly, payment of restitution is a condition of the stay—meaning that
Cheselka’s failure to pay restitution within 60 days from today would result in his
serving the full two-year suspension—but restitution is not a condition of either
reinstatement or monitored probation, so it is possible that Cheselka could return to




                                         13
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the practice of law and complete his probation without ever having compensated
the victim of his misconduct.
       {¶ 42} Rather than being self-defeating, the conditions we impose should
work in tandem to protect the public from future misconduct while promoting the
respondent’s rehabilitation.     After all, the primary purpose of our attorney-
discipline system is not to punish the offending attorney but to protect the public
from attorneys whose misconduct draws their fitness to practice law into question.
Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-6510, 858
N.E.2d 368, ¶ 10.
       {¶ 43} The need for consistency, predictability, and coherence can largely
be satisfied by turning to the Rules for the Government of the Bar, which establish
express conditions for reinstatement to the practice of law following a suspension
and also provide a detailed system of monitored probation to allow for the
continued supervision of a disciplined attorney from his or her reinstatement until
the time the conditions of probation we impose have been satisfied.
       {¶ 44} Gov.Bar R. V(12)(A) establishes the manner of an attorney’s
discipline for professional misconduct. Among other sanctions, this court may
suspend an attorney from the practice of law for a period of six months to two years
subject to a stay in whole or in part. Gov.Bar R. V(12)(A)(3). If we impose such
a term suspension, Gov.Bar R. V(12)(A)(4) authorizes us to also impose
“[p]robation for a period of time upon conditions as the Supreme Court
determines.” (Emphasis added.)
       {¶ 45} Gov.Bar R. V(24) provides the procedure for an attorney serving a
term suspension to apply for reinstatement to the practice of law. This rule requires
this court to reinstate the respondent if no formal disciplinary proceedings are
pending against the respondent and the respondent has paid all costs of the
proceedings as we had previously ordered, complied with our order of suspension
and with the continuing-legal-education (“CLE”) requirements of Gov.Bar R. X,




                                         14
                                January Term, 2019




and completed serving any criminal sanctions that have been imposed. Gov.Bar R.
V(24)(C). In contrast to Gov.Bar R. V(25)’s requisites for reinstatement from an
indefinite suspension, Gov.Bar R. V(24) does not expressly provide additional
conditions on reinstatement, such as making appropriate restitution or possessing
the mental qualifications required to practice law as shown through an OLAP
evaluation.   See Gov.Bar R. V(25)(D)(1)(a) (conditioning reinstatement from
indefinite suspension on restitution) and (b) (conditioning reinstatement from
indefinite suspension on the respondent’s “possess[ing] all of the mental,
educational, and moral qualifications that were required of an applicant for
admission to the practice of law in Ohio at the time of his or her original
admission”). Nonetheless, we have sometimes imposed specific conditions on
reinstatement to ensure that the respondent complies with our order. See, e.g.,
Gonzalez, 138 Ohio St.3d 320, 2014-Ohio-851, 6 N.E.3d 1149, at ¶ 35, 39.
       {¶ 46} Staying a suspension from the practice of law on conditions can be
a preferable method to compel compliance with our disciplinary order without
“overburden[ing] attorneys who contribute their time to volunteer as probation
monitors,” Disciplinary Counsel v. Harmon, ___ Ohio St.3d ___, 2019-Ohio-4171,
___ N.E.3d ___, ¶ 57 (Kennedy, J., dissenting). In contrast to Gov.Bar R. V(21)’s
provisions on monitored probation, the Rules for the Government of the Bar do not
provide any specific requirement or procedure for the relator or a monitoring
attorney to supervise the respondent’s compliance with the conditions of a stayed
suspension. Rather, when we impose conditions on the stay of a suspension, we
reserve our power to dissolve the stay and reinstate the suspension from the practice
of law, encouraging a disciplined attorney to take control of his or her rehabilitation
and comply with his or her professional obligations.
       {¶ 47} But here, the court has determined, and I agree, that the respondent’s
misconduct warrants the imposition of monitored probation. When this court
imposes probation, Gov.Bar R. V(21) requires that we impose conditions for the




                                          15
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probation. Disciplinary Counsel v. Halligan, ___ Ohio St.3d ___, 2019-Ohio-3748,
___ N.E.3d ___, at ¶ 41-45 (Kennedy, J., concurring in part and dissenting in part).
Moreover, the monitored-probation scheme established by Gov.Bar R. V(21)
cannot function effectively without this court’s imposition of conditions of
probation. After all, the first duty of monitoring attorneys that is listed 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).
       {¶ 48} This court’s imposition of specific conditions of probation is
“essential to the scheme” of probation established by Gov.Bar R. V(21). Halligan
at ¶ 43 (Kennedy, J., concurring in part and dissenting in part). The Rules for the
Government of the Bar give this court—and only this court—the authority to
impose those conditions, id. at ¶ 42, and “our 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 probation—conditions specifically designed by this
court to protect the public and rehabilitate the respondent—it undermines the
effectiveness of the probation scheme established by Gov.Bar R. V(21).
       {¶ 49} The court imposes a term of probation without ordering any
conditions specific to Cheselka’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, Cheselka and his monitoring attorney have no direction regarding their
respective duties during the term of monitored probation. The lead opinion 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




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what access the monitor should have to Cheselka’s client files and records or even
what would constitute a violation of probation.        The lead opinion gives no
explanation of how this court would ever be able to find that Cheselka had violated
the conditions of probation pursuant to Gov.Bar R. V(21)(K) when no conditions
will have been imposed by the court in the first instance.         Without express
conditions, imposing probation is not only unworkable as a practical matter, 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.
       {¶ 50} Therefore, I would impose the following specific conditions for the
one-year term of monitored probation to facilitate the supervision of Cheselka’s
office-management practices: (1) Cheselka shall meet in person with his monitoring
attorney on a monthly basis as required by Gov.Bar R. V(21)(C)(1); (2) Cheselka
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) Cheselka shall cooperate and work with
the monitor, who shall act as a mentor and provide guidance to Cheselka regarding
the proper operation and management of a law practice; (4) Cheselka—with the
monitoring attorney or relator, disciplinary counsel—shall design a comprehensive
plan to ensure that he is reasonably diligent in the representation of his clients—in
the event that Cheselka cannot act with reasonable diligence in representing his
clients, relator or the monitoring attorney may limit the number of active cases
Cheselka may maintain; (5) Cheselka 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) Cheselka shall give the monitoring attorney access to
nonconfidential client materials and files, ledgers, and account statements as
needed to allow the monitoring attorney to review Cheselka’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.




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        {¶ 51} However, because monitored probation is appropriate in this case, I
would also include the following requirements as conditions of probation:
Cheselka shall (1) engage in no further misconduct, (2) make restitution of $2,500
to Kimberly Cleveland relative to Cheselka’s representation of Darryl Hill, (3)
submit to an evaluation by OLAP, (4) comply with any treatment or counseling
recommendations arising from his OLAP evaluation, and (5) complete six hours of
CLE focused on law-office management in addition to the requirements of Gov.Bar
R. X.
        {¶ 52} “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 court fails to impose specific conditions on Cheselka’s probation, I
dissent in part.
        DEWINE, J., concurs in the foregoing opinion.
                               _________________
        Joseph M. Caligiuri, Disciplinary Counsel, and Lauren A. Gardner, Special
Assistant Disciplinary Counsel, for relator.
        Alkire & Nieding, L.L.C., and Richard C. Alkire; and Robert V. Housel, for
respondent.
                               _________________




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