[Cite as Disciplinary Counsel v. Niles, 126 Ohio St.3d 23, 2010-Ohio-2517.]




                          DISCIPLINARY COUNSEL v. NILES.
  [Cite as Disciplinary Counsel v. Niles, 126 Ohio St.3d 23, 2010-Ohio-2517.]
Attorneys — Misconduct — Interim felony suspension already imposed — Two-
        year license suspension, all stayed on conditions.
   (No. 2010-0034 — Submitted February 24, 2010 — Decided June 10, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 08-088.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Lisa Jane Niles of Springfield, Ohio, Attorney
Registration No. 0061134, was admitted to the practice of law in Ohio in 1993.
On August 13, 2008, this court imposed an interim felony suspension on
respondent’s license pursuant to Gov.Bar R. V(5)(A)(4). In re Niles, 119 Ohio
St.3d 1420, 2008-Ohio-4071, 891 N.E.2d 1187.
        {¶ 2} On December 8, 2008, relator, Disciplinary Counsel, filed a
complaint alleging four violations of the Ohio Rules of Professional Conduct.
Respondent participated in the disciplinary investigation and stipulated to certain
facts and misconduct.          The Board of Commissioners on Grievances and
Discipline now recommends that we suspend respondent’s license for two years,
all stayed, based upon findings that she engaged in theft in office and tampering
with records during her tenure as the Champaign County Municipal Court clerk.
We accept the board’s findings of misconduct and agree that a two-year
suspension, stayed upon conditions, is appropriate.
                                        Misconduct
        {¶ 3} In its complaint, relator charged respondent with violations of
Prof.Cond.R. 8.4(b) (prohibiting commission of an illegal act that reflects
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adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohibiting conduct
involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (prohibiting
conduct prejudicial to the administration of justice), and 8.4(h) (prohibiting
conduct that adversely reflects on the lawyer’s fitness to practice law).
       {¶ 4} The stipulated facts and testimony at the panel hearing demonstrate
that after graduating from law school and developing a general practice in
Springfield, Ohio, respondent suffered from a series of health problems. In 1997,
she broke her ankle and required orthopedic surgery. Due to pain from the injury,
her doctor prescribed painkillers, including Vicodin. Respondent later developed
depression and anxiety, for which her doctor prescribed Zoloft and Xanax. Then
in 2005, respondent had quadruple-bypass surgery. As a result of her poor health,
respondent was unable to work and closed her private practice.
       {¶ 5} A local judge, who was aware of respondent’s work on behalf of
her clients as well as her health and financial difficulties, offered to appoint
respondent as the Champaign County Municipal Court clerk. Respondent was
sworn in on January 6, 2006.
       {¶ 6} On two days in April 2007, respondent accepted and retained cash
payments of pending court fines from defendants. She concealed her thefts by
issuing paper receipts in lieu of the court’s standard computerized receipts and by
later destroying the office copies. Respondent testified that at the time of the
thefts, she was drinking daily and taking Vicodin, Zoloft, and Xanax. She also
testified that an “alcoholic bottom” had caused her to steal money from the court.
       {¶ 7} When confronted about the thefts, respondent denied them. An
audit revealed that respondent had stolen $365.50. Respondent’s employment
was terminated, and she later pleaded guilty to charges of theft in office and
tampering with records. Respondent was convicted and was given a $400 fine;
she was sentenced to ten days in jail, three years of community control, and 100




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hours of community service.        She was also ordered to pay restitution of
$5,483.60, representing the stolen $365.50 plus the cost of the audit.
       {¶ 8} The panel and board found that respondent’s conduct violated
Prof.Cond.R. 8.4(c), 8.4(d), and 8.4(h). However, the parties stipulated, clear and
convincing evidence demonstrates, and we find, that respondent’s conduct also
violated Prof.Cond.R. 8.4(b).
                                     Sanction
       {¶ 9} In recommending a sanction for this misconduct, the board
considered the aggravating and mitigating features of respondent’s case and found
that the mitigating factors overwhelmingly outweighed the aggravating factors.
See Section 10(B) of the Rules and Regulations Governing Procedure on
Complaints and Hearings Before the Board of Commissioners on Grievances and
Discipline (“BCGD Proc.Reg.”).
       {¶ 10} The parties stipulated and the board found the following factors in
mitigation: (1) absence of prior disciplinary record, (2) timely good-faith effort
to make restitution, (3) cooperative attitude toward the disciplinary proceedings,
(4) imposition of other penalties or sanctions, and (5) respondent’s chemical
dependency. BCGD Proc.Reg. 10(B)(2)(a), (c), (d), (f), and (g).
       {¶ 11} With regard to respondent’s chemical dependency, Stephanie
Krznarich, clinical director of the Ohio Lawyers Assistance Program (“OLAP”),
testified that respondent entered into an OLAP contract as of March 3, 2008, and
that she has fully complied with that contract. She stated that respondent was
diagnosed with both drug and alcohol addiction and that she completed a
treatment program at McKinley Hall, a drug and alcohol treatment center in
Springfield. She noted that although respondent could have been discharged from
her treatment program more than a year before her disciplinary hearing, she
voluntarily remains in an aftercare program. Noting that respondent continues to
participate in Alcoholics Anonymous and that she has been selected to handle the



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money for two separate 12-step programs, Krznarich testified that respondent can
return to the ethical and competent practice of law and that she will be an asset to
the legal community.
       {¶ 12} Based upon the testimony of respondent and Krznarich, we
conclude that respondent’s chemical dependency qualifies as a mitigating factor
pursuant to BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv).
       {¶ 13} Although the parties did not stipulate to any aggravating factors,
the board noted respondent’s initial denial of wrongdoing when confronted by her
employer.    However, the board found that “her remorseful and courageous
admissions recounted at the hearing more than compensate for this single
aggravating element.”
       {¶ 14} The parties have stipulated that a two-year suspension with the
second year stayed upon conditions is an appropriate sanction for respondent’s
conduct.    But the board recommends that we suspend respondent from the
practice of law for two years, all stayed in light of the time served by respondent
during her interim suspension, subject to the following conditions:
       {¶ 15} “1.    Respondent must continue to abide by the terms and
conditions of her OLAP contract which does not expire until approximately
March 3, 2013. This compliance includes treatment or therapy prescribed by any
treating physician or counselor which OLAP considers important to Respondent’s
current and future good health.
       {¶ 16} “2.    In order to assure herself and protect the public against any
stress-induced further wrongdoing, Respondent shall comply with Gov.Bar R.
V(9) with regard to the appointment of a law practice monitor at the time she
resumes her practice of law. The Respondent shall continue to report to her
monitor during this period until the expiration of her contract with OLAP.
       {¶ 17} “3.    Failure to meet these conditions shall subject Respondent to a
two-year suspension.”




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       {¶ 18} For similar conduct, we have previously imposed two-year
suspensions with the second year stayed. See, e.g., Akron Bar Assn. v. Carter,
115 Ohio St.3d 18, 2007-Ohio-4262, 873 N.E.2d 824, ¶ 18 (attorney convicted of
felony theft and misuse of his employer’s credit card); Disciplinary Counsel v.
Brenner, 122 Ohio St.3d 523, 2009-Ohio-3602, 912 N.E.2d 1116, ¶ 21-22
(attorney concealed fee agreements from his law firm and retained fees for
himself, but wrote checks from the firm’s operating account for his personal
expenses); Toledo Bar Assn. v. Lockhart (1998), 84 Ohio St.3d 7, 9, 701 N.E.2d
686 (attorney convicted of petty-theft shoplifting and tampering with records).
       {¶ 19} Having weighed respondent’s conduct and the aggravating and
mitigating factors, having considered the sanctions imposed for comparable
conduct, and having recognized that respondent has served an interim felony
suspension of almost two years, we adopt the board’s recommended sanction.
Accordingly, Lisa Jane Niles is suspended from the practice of law in the state of
Ohio for two years, all stayed upon the conditions that she (1) comply with the
terms and conditions of her OLAP contract, including the treatment
recommendations of any treating physician or counselor, and (2) serve a term of
monitored probation pursuant to Gov.Bar R. V(9) commencing upon her return to
the practice of law and continuing until the expiration of her existing OLAP
contract.   If respondent fails to comply with the conditions of the stay or
probation, the stay will be lifted, and respondent will serve the full two-year
suspension from practice. Costs are taxed to respondent.
                                                            Judgment accordingly.
       PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
       BROWN, C.J., not participating.
                              __________________




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       Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,
Assistant Disciplinary Counsel, for relator.
       Richard E. Mayhall, for respondent.
                            ______________________




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