[Cite as Columbus Bar Assn. v. Kizer, 123 Ohio St.3d 188, 2009-Ohio-4763.]




                      COLUMBUS BAR ASSOCIATION v. KIZER.
 [Cite as Columbus Bar Assn. v. Kizer, 123 Ohio St.3d 188, 2009-Ohio-4763.]
Attorneys at law — Misconduct — Multiple violations of the Rules of Professional
        Conduct and Code of Professional Responsibility — License suspension.
 (No. 2009-0466 — Submitted April 21, 2009 — Decided September 17, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-007.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Tanya Johnston Kizer, of Columbus, Ohio, Attorney
Registration No. 0073402, was admitted to the Ohio Bar in 2001. In September
2008, she registered her professional status as inactive.                    The Board of
Commissioners on Grievances and Discipline recommends that this court suspend
her license to practice law for 18 months, based on findings that she neglected
several legal matters to the prejudice of her clients’ interests, accepted retainers
that she did not deposit in her trust account, received fees for work she did not
perform, and failed to return those unearned fees. We agree that respondent
committed professional misconduct as found by the board and that her conduct
warrants an 18-month suspension.
        {¶ 2} In a four-count amended complaint, relator, Columbus Bar
Association, charged respondent with violations of the Code of Professional
Responsibility, the Rules of Professional Conduct, and the Gov.Bar R. VI(1)(D)
requirement that attorneys notify the Supreme Court Attorney Registration Office
of the attorney’s current address. A panel of the board conducted a hearing, at
which the parties offered stipulations of fact. The parties withdrew stipulation
five, and the panel unanimously adopted the remaining stipulated facts as part of
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the findings of fact in this matter. After the hearing, the parties submitted a joint
memorandum to assist the panel in determining which violations occurred before
and after the February 1, 2007 effective date of the Rules of Professional
Conduct. The panel treated that memorandum as a stipulation, but found that
certain stipulated violations were not proven by clear and convincing evidence to
have occurred before February 1, 2007.
       {¶ 3} Based upon the stipulations, the panel made findings of fact and
conclusions of law and recommended that respondent be suspended from the
practice of law for 18 months, commencing on September 17, 2008 – the date that
respondent voluntarily changed her registration status to inactive. Additionally,
the panel recommended that her reinstatement be subject to the more stringent
requirements of Gov.Bar R. V(10)(C) through (G), including making restitution
and (1) continuing to work with qualified mental-health professionals of her
choice as necessary, (2) immediately submitting to a substance-abuse assessment
by the Ohio Lawyers Assistance Program (“OLAP”) or a comparable qualified
agency, and (3) fully complying with any treatment regimen or other
recommendations by OLAP or the comparable qualified agency regarding
substance abuse. The board adopted the panel’s findings fact, conclusions of law,
and recommendation.
                                Background Facts
       {¶ 4} The board found that respondent graduated from law school in
2000, but did not begin her private practice until 2003. The board noted that in
addition to the pressure of being a young sole practitioner, respondent
experienced a number of serious stress factors in her personal life. As a cost-
saving measure, she attempted to use her home as her office. But by early 2007,
she had effectively abandoned her practice when she failed to return telephone
calls, check her e-mail messages, retrieve her mail, and attend court appointments.




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       {¶ 5} In June, July, and August 2007, relator received grievances filed
by respondent’s former clients, Chad Webb, Joseph Watson, and John Salmons.
Relator’s initial efforts to serve those grievances upon respondent were
unsuccessful because she no longer had an office or received mail at the address
she had registered with this court. Respondent became aware of the grievances in
late August 2007, and voluntarily sought assistance from OLAP. Although she
met with relator’s counsel in September 2007, she did not respond to the
grievances in writing as requested. Although she did submit a written response to
a fourth grievance filed by Derwin Hairston, her response was not timely.
Despite difficulty maintaining contact with respondent, relator was able to depose
respondent in March 2008.
       {¶ 6} Stephanie Krznarich, a licensed independent social worker
supervisor and licensed chemical dependency counselor at OLAP, conducted an
assessment and diagnosed respondent with drug and alcohol dependencies, as
well as mental disorders. Respondent signed a four-year OLAP contract, but
abandoned it after only 11 days, citing a personality clash with one OLAP
employee and her discomfort with OLAP’s emphasis on chemical dependency,
which she did not believe was her problem.
       {¶ 7} In October 2007, respondent elected to seek mental-health
treatment without OLAP’s supervision. After an initial assessment at Netcare
Access, a crisis mental-health clinic, respondent began to see a counselor. And
after a brief hospitalization for psychiatric care, she continued to receive
psychiatric care on an outpatient basis. The panel accepted into evidence, without
objection, a letter from respondent’s treating psychiatrist stating: “Her diagnosis
is major depression recurrent severe with no psychosis. With this diagnosis it is
determined that her mental disability contributed to her misconduct at work as a
lawyer. Currently, she is under treatment and her symptoms are under control.”
In that letter, respondent’s psychiatrist also opined that respondent will be able to



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return to work as a lawyer and that she will be able to practice “ethically,
competently, and professionally.”
       {¶ 8} Respondent stipulated and the board found that respondent had
committed the following misconduct.
                                    Count One
       {¶ 9} In 2005, Chad Webb paid respondent $1,000 to pursue child-
custody and dependency matters. Respondent did not deposit this retainer in her
trust account. In June 2006, respondent also filed a motion for allocation of a
dependency exemption in a separate matter. By March 2007, Webb was unable to
locate respondent. She failed to communicate with Webb, as she had abandoned
her office and had left no forwarding information. Respondent failed to notify
Webb of a May 2007 hearing on his allocation-of-dependency exemption and
failed to appear on his behalf, resulting in dismissal of the motion. After Webb
filed a grievance, respondent secured a November 2007 hearing date for Webb’s
child custody and dependency case.          Respondent failed to appear, and the
magistrate dismissed the matter. Although respondent obtained reinstatement of
the case, Webb again had difficulty contacting her and obtained new counsel.
These defects in respondent’s representation of Webb caused him delay and
expense.
                                    Count Two
       {¶ 10} In January 2007, Joseph Watson paid respondent $800 to represent
him in a visitation matter. Respondent failed to file the documentation required to
establish Watson’s paternity, however, and she failed to appear at an August 2007
hearing on his behalf.     Neither Watson nor his new attorney could reach
respondent after March 2007. Respondent has not forwarded Watson’s file to his
new attorney and has not returned Watson’s fees. Her conduct substantially
delayed and hampered Watson’s legal objective of securing visitation with his
children.




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                                    Count Three
        {¶ 11} In October 2007, respondent accepted a $500 retainer from Derwin
L. Hairston to file a motion to modify parental rights. Respondent filed the
motion, but when she failed to appear at the December hearing, the trial court
continued the matter. Hairston never heard from respondent again. The trial
court granted his pro se motion for continuance to obtain new counsel, but he
suffered delay and economic loss as a result of respondent’s failure to act on his
behalf. Although she did not earn it, respondent has not refunded Hairston’s
retainer.
                                    Count Four
        {¶ 12} In December 2006, John Salmons paid respondent $1,500 to
represent him in a divorce. Respondent failed to deposit the retainer in her trust
account, even though she had not earned the fees. Although respondent made
several court appearances for Salmons, he was ultimately unable to reach her and
hired new counsel. Despite her representations that she would send Salmons a
statement and return any balance due, respondent never provided Salmons with
either an accounting or a refund.
                                    Misconduct
        {¶ 13} Respondent admits that she engaged in a pattern of misconduct by
neglecting legal matters entrusted to her and prejudicing the interests of clients
Chad Webb, Joseph Watson, Derwin L. Hairston, and John Salmons.               She
stipulated that she accepted retainers from Webb and Salmons for fees to be
earned in the future but failed to deposit them in her trust account. She further
acknowledged that she did not earn the fees she collected from Watson and
Hairston and has not returned the unearned portion of those fees, although she
intends to do so.
        {¶ 14} The record demonstrates that despite the complaining clients’
repeated efforts to reach respondent during the course of her representation, they



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could not reach her. She failed to respond to communications regarding their
legal matters and failed to attend numerous court hearings. Respondent neglected
her duties as an attorney through her inaction and unavailability, causing delay,
additional expense, and prejudice to her clients.
       {¶ 15} The parties have stipulated, the board has found, and we conclude
that relator has proven by clear and convincing evidence that respondent violated
the following provisions of the Ohio Rules of Professional Conduct with respect
to each of the four counts in the complaint: Prof.Cond.R. 1.1 (failing to provide
competent representation), 1.3 (failing to act with reasonable diligence and
promptness), 1.4(a)(3) (failing to keep the client reasonably informed about the
status of a matter), and 8.4(h) (engaging in conduct adversely reflecting on the
lawyer’s fitness to practice law). The parties have further stipulated, and we
concur, that relator proved by clear and convincing evidence that with respect to
Salmons, respondent violated Prof.Cond.R. 1.15(c) (failing to place unearned
funds in an IOLTA account) and (d) (failing to provide an accounting, and failing
to promptly deliver to a client funds to which he is entitled), and with respect to
Hairston, Prof.Cond.R. 1.15(d).
       {¶ 16} Because some of respondent’s actions in the Salmons matter
allegedly occurred before February 1, 2007, the effective date of the Rules of
Professional Conduct, relator also charged respondent with violations of the Code
of Professional Responsibility. Although the parties stipulated to respondent’s
violation of several of these Disciplinary Rules, the panel and the board found that
relator has proven by clear and convincing evidence only that respondent had
violated DR 9-102(A)(2) (failure to place funds of a client in an IOLTA account).
Because the evidence of the remaining alleged violations of the Code of
Professional Responsibility did not clearly and convincingly demonstrate that the
conduct occurred prior to February 1, 2007, the board recommended the dismissal
of the additionally charged violations. In accord with the panel recommendation,




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the board also recommends dismissal of the alleged violations of Gov.Bar R.
VI(1)(D). We adopt these findings and recommendations of the board in toto.
                                     Sanction
       {¶ 17} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties the lawyer violated, the lawyer’s mental
state, and sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli,
96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, at ¶ 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, at ¶ 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).
       {¶ 18} As aggravating factors, the board noted that respondent’s pattern of
misconduct extended over a period of several months and involved multiple
violations that harmed some of her clients. BCGD Proc.Reg. 10(B)(1)(c) and (d).
She failed to honor her OLAP contract and failed to fully cooperate in the
disciplinary process during the investigative phase, although she was cooperative
during the later stages of the proceeding.         BCGD Proc.Reg. 10(B)(1)(e).
Additionally, respondent has not yet made restitution to her clients for unearned
fees. BCGD Proc.Reg. 10(B)(1)(f).
       {¶ 19} In mitigation, the board found that respondent has no prior
disciplinary record, demonstrated a cooperative attitude at the hearing, BCGD
10(B)(2)(a) and (d), and remorse for her conduct, and acknowledged her duty to
make restitution to former clients for unearned fees. Although the unsworn letter
from respondent’s psychiatrist did not fully satisfy the requirements of BCGD



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Proc.Reg. 10(B)(2)(g), the board noted that it demonstrated a clear inference that
respondent’s major depression contributed to her misconduct.
       {¶ 20} Additionally, the board noted that respondent appears to possess
the skills and intelligence necessary to practice law and make a positive
contribution to society. She is sincere in her efforts to get her life in order and to
conquer her mental difficulties. Although her testimony suggests that respondent
believes that she will be ready to resume the practice of law within 18 months, the
board expressed concern that no one presented medical testimony to address the
timetable for her recovery. Moreover, as the board observed, it is unclear from
the record whether respondent has a substance-abuse problem for which she needs
treatment.
       {¶ 21} Based upon the foregoing, the board recommends that we suspend
respondent from the practice of law for 18 months and make her reinstatement
subject to the more stringent requirements of Gov.Bar R. V(10)(C) through (G),
which includes restitution, as well as the prerequisites that she (1) continue to
work with qualified mental-health professionals of her choice as necessary, (2)
immediately submit to a substance-abuse assessment by OLAP or a comparable
qualified agency, and (3) fully comply with any recommendations by OLAP or
the comparable qualified agency regarding substance abuse.
       {¶ 22} As the board has recognized, we have previously imposed two-
year suspensions for comparable conduct that also involved lies and deceit. See,
e.g., Columbus Bar Assn. v. Ellis, 120 Ohio St.3d 89, 2008-Ohio-5278, 896
N.E.2d 703, ¶ 4, 13 (two-year suspension for engaging in a pattern of deceit,
neglect, and miscommunication with 18 clients); Disciplinary Counsel v.
Bowman, 110 Ohio St.3d 480, 2006-Ohio-4333, 854 N.E.2d 480, ¶ 36, 40 (two-
year suspension for multiple instances of neglect, dismissal of client matters with
prejudice, and intentional prejudice or damage to a client during the course of the
professional relationship). We have also imposed two-year suspensions with part




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of the suspension stayed in cases involving client neglect, failure to deposit
retainers into a client trust account, and failure to promptly return unearned fees to
clients upon request. See Lake Cty. Bar Assn. v. Ryan, 109 Ohio St.3d 301, 2006-
Ohio-2422, 847 N.E.2d 430, ¶ 20-21 (two-year suspension with second year
stayed on conditions after weighing his 27 years of practice without disciplinary
action as mitigating factor); Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1,
2007-Ohio-2477, 866 N.E.2d 1076, ¶ 63 (two-year suspension with final six
months stayed on conditions based in part on the mitigating factor of substance
abuse); Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005-Ohio-6045, 837
N.E.2d 369, ¶ 57 (two-year suspension with 18 months stayed based, in part, on
the mitigating factor of substance abuse); Disciplinary Counsel v. Jaffe, 102 Ohio
St.3d 273, 2004-Ohio-2685, 809 N.E.2d 1122, ¶ 18 (two-year suspension with
one year stayed based in part on the mitigating factor of clinical depression). But
in this case, based upon respondent’s ongoing mental health difficulties and
possible substance abuse, the board stated that respondent should not be permitted
to return to the practice of law in less than 18 months.
       {¶ 23} After weighing the aggravating and mitigating factors in this case
and considering the sanctions imposed for comparable conduct previously, we
adopt the board’s recommended sanction. Accordingly, respondent is hereby
suspended from the practice of law in Ohio for 18 months commencing on
September 17, 2008.       Her reinstatement shall be conditioned upon making
restitution to her clients in the following amounts: $1,000 to Chad Webb, $800 to
Joseph Watson, $500 to Derwin Hairston, and $1,500 to John Salmons.                In
addition, respondent must satisfy the requirements of Gov.Bar R. V(10)(C)
through (G) and must (1) continue to work with qualified mental-health
professionals of her choice as necessary, (2) immediately submit to a substance-
abuse assessment by OLAP or a comparable qualified agency, and (3) fully




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comply with any recommendations by OLAP or a comparable qualified agency
regarding substance abuse. Costs are taxed to respondent.
                                                            Judgment accordingly.
       MOYER,    C.J.,   and    PFEIFER,    LUNDBERG   STRATTON,     O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                               __________________
       Isaac Brant Ledman & Teetor and Joanne S. Peters; and Bruce A.
Campbell and A. Alysha Clous, for relator.
                               __________________




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