[Cite as Disciplinary Counsel v. Chambers, 125 Ohio St.3d 414, 2010-Ohio-1809.]




                      DISCIPLINARY COUNSEL v. CHAMBERS.
                     [Cite as Disciplinary Counsel v. Chambers,
                       125 Ohio St.3d 414, 2010-Ohio-1809.]
Attorney misconduct, including neglecting an entrusted legal matter, failing to
        promptly deliver to client all funds the client is entitled to receive, and
        failing to cooperate in disciplinary investigation — One-year suspension
        with entire suspension stayed on conditions.
 (No. 2008-1991 — Submitted December 16, 2009 — Decided April 29, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 07-098.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, John Joseph Chambers of Fairview Park, Ohio,
Attorney Registration No. 0064627, was admitted to the practice of law in Ohio in
May 1995.
        {¶ 2} The Board of Commissioners on Grievances and Discipline
recommends that we suspend respondent’s license to practice for a period of one
year, stayed upon the conditions that he complete a three-year probationary period
during which he remain subject to, and in compliance with, his Ohio Lawyers
Assistance Program (“OLAP”) contract, continue to be monitored by an
appointed monitoring attorney, regularly attend Alcoholics Anonymous meetings,
commit no further misconduct, and pay the costs of these proceedings. The board
makes this recommendation based upon stipulations and findings that respondent
neglected a legal matter entrusted to him, intentionally failed to carry out a
contract of employment, failed to promptly pay or deliver to the client all funds
that the client was entitled to receive, and refused to assist in a disciplinary
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investigation. Additionally, the board found that although not stipulated by the
parties, respondent engaged in conduct prejudicial to the administration of justice
and adversely reflecting on his fitness to practice law, and intentionally failed to
seek the lawful objectives of a client. We agree that respondent violated the
former Code of Professional Responsibility and current Rules of Professional
Conduct1 as found by the board, and that a one-year suspension with the entire
suspension conditionally stayed is appropriate.
                                    Procedural History
        {¶ 3} Relator, Disciplinary Counsel, initially charged respondent with a
single count of failure to cooperate with a disciplinary investigation of a grievance
filed against him by Michael David Wilmore. See Gov.Bar R. V(4)(G) (no
lawyer shall neglect or refuse to testify in a disciplinary investigation or hearing).
In April 2008, relator amended its complaint to add a second count arising from a
grievance filed by Thomas G. Stump and alleged that respondent violated
Prof.Cond.R. 8.4(a) (no lawyer shall violate or attempt to violate the Ohio Rules
of Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another), 8.4(d) (no lawyer shall engage in conduct that is
prejudicial to the administration of justice), and 8.4(h) (no lawyer shall engage in
any other conduct that adversely reflects on the lawyer’s fitness to practice law),
and Gov.Bar R. V(F)(G).
        {¶ 4} Respondent did not answer either complaint, and relator moved for
a default judgment. The board referred the matter to a master commissioner, who
prepared a report containing findings of fact and conclusions of law and
recommending a one-year suspension with six months stayed upon the conditions
that he successfully complete an approved anger-management program, complete


1. Relator charged respondent with misconduct pursuant to applicable rules for acts occurring
before and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Code of Professional Responsibility.




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six months of monitored probation pursuant to Gov.Bar R. V(9), and pay the costs
of the proceeding. The board adopted the master commissioner’s report in its
entirety.
        {¶ 5} Both relator and respondent objected to the board’s report. After
hearing oral argument on those objections, we placed respondent on monitored
probation pursuant to Gov.Bar R.V(9) and remanded the matter to the board for
further consideration.
        {¶ 6} On remand, relator filed a second amended complaint to add
additional facts and allegations of misconduct with respect to respondent’s
handling of the Wilmore matter.        The parties submitted stipulated facts and
exhibits and a panel of board members made findings of fact and conclusions of
law and recommended a one-year suspension stayed upon conditions. The board
adopted the report, and the parties have not objected.
                                   Misconduct
                             The Wilmore Grievance
        {¶ 7} In June or July 2005, Michael David Wilmore sought respondent’s
representation to seek early release from prison. In August 2005, respondent sent
Wilmore a letter stating that he would not pursue the matter until he received his
$2,500 fee. The letter further stated: “If you elect to pay my fees, I will promptly
file the motion for judicial release we discussed and request that Judge Hastings
bring you back for a full hearing.” The following month, respondent accepted the
full $2,500 fee to represent Wilmore. Despite having received the agreed fee,
having entered an appearance in Wilmore’s case, and having obtained permission
from the judge to review the presentence-investigation report, respondent did not
file any motion on Wilmore’s behalf.
        {¶ 8} Respondent received three letters from relator notifying him of
Wilmore’s grievance and seeking his response, but he never submitted a reply.
On or about May 1, 2007, after receiving a subpoena to appear at a deposition at



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relator’s office, respondent called relator and requested an extension of time to
respond to the letters of inquiry. Although relator extended the time to respond to
May 30, 2007, and canceled respondent’s deposition, respondent once again
failed to submit a response. Even after relator sent respondent a letter stating that
probable cause existed to believe that he had committed an ethical violation,
respondent did not respond.
       {¶ 9} The parties stipulated and the board found by clear and convincing
evidence that respondent’s conduct violated DR 6-101(A)(3) (a lawyer shall not
neglect a legal matter entrusted to him), 7-101(A)(2) (a lawyer shall not
intentionally fail to carry out a contract of employment for legal services), and 9-
102(B)(4) (a lawyer shall promptly pay or deliver to the client all funds that the
client is entitled to receive), and Gov.Bar R. V(4)(G). Additionally, the board
found by clear and convincing evidence that respondent’s conduct violated DR 1-
102(A)(5) (a lawyer shall not engage in conduct prejudicial to the administration
of justice), 1-102(A)(6) (a lawyer shall not engage in conduct that adversely
reflects on the lawyer’s fitness to practice law), and 7-101(A)(1) (a lawyer shall
not intentionally fail to seek the lawful objectives of a client). We accept these
findings of misconduct.
                               The Stump Grievance
       {¶ 10} The parties stipulated and the board found that on December 7,
2006, respondent entered a plea of no contest to a charge of misdemeanor
attempted aggravated disorderly conduct in the Cleveland Municipal Court,
arising out of an altercation with his neighbor, Thomas G. Stump. As a result of
the plea, respondent was sentenced to one year of probation. Subsequently,
Stump filed both a civil action and a grievance against respondent arising out of
the altercation. In the grievance, Stump alleged that respondent had assaulted him
because Stump had been called to testify as a witness in a juvenile court matter




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involving respondent’s children. Although relator sent him two letters regarding
the Stump grievance, respondent never responded.
       {¶ 11} On December 11, 2007, relator received a letter from Stump
seeking to withdraw his grievance so that he could pursue civil remedies against
respondent. On December 28, 2007, relator received another letter from Stump,
stating that he refused to settle any of his claims against respondent. Attached to
that letter was correspondence from respondent advising Stump’s counsel that in
order to settle the civil matter Stump would have to immediately dismiss the
pending disciplinary complaint against respondent.            Also attached was a
settlement and mutual release of claims, drafted by respondent, which stated:
“The Plaintiff will immediately send the attached correspondence to Carol A.
Costa, Assistant Disciplinary Counsel of the Ohio Supreme Court, and withdraw
grievance # A7-1825. In [sic, If] the Ohio Supreme Court imposes any discipline
against Defendant John Chambers due to the allegations set forth in grievance #
A7-1825, or considers the allegations set forth in Plaintiff’s grievance in any way
as an aggravating factor in any future disciplinary proceedings against Defendant
John Chambers, the Plaintiff agrees to be subject to a lawsuit for defamation, and
specifically waives the applicable statute of limitations. In lieu of filing a separate
suit alleging defamation, however, Defendant John Chambers, at his sole option,
may compel liquidated damages from the Plaintiff in the amount of $15,000.”
       {¶ 12} On the day of trial, respondent and Stump met with the trial judge
to discuss the possibility of settlement. Eventually, they agreed to dismiss their
respective claims and submitted the settlement and mutual release of claims
prepared by respondent for the court’s approval. However, during the course of
the discussions, the trial judge crossed out several provisions of the agreement,
including all but the first sentence of the paragraph quoted above, and respondent
initialed the changes.    In accordance with the revised settlement agreement,
Stump sent a letter to relator seeking to withdraw his grievance.



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       {¶ 13} Thereafter, relator informed respondent by letter that it had the
authority to investigate any matters that come to its attention, regardless of a
grievant’s desire to withdraw a grievance. The letter further advised respondent
that an attorney should not require a client to forgo filing, dismiss, or resolve a
grievance outside of Gov.Bar R. V, and requested a response within two weeks.
Respondent did not reply.
       {¶ 14} The parties stipulated, and the board found, that respondent’s
conduct with respect to the Stump matter violated Gov.Bar R. V(4)(G).
Additionally, the board noted that in Cuyahoga Cty. Bar Assn. v. Berger (1992),
64 Ohio St.3d 454, 456, 597 N.E.2d 81, a case in which two attorneys sought to
limit the response of a former client to a disciplinary inquiry, this court concluded
that the attorneys had violated DR 1-102(A)(5) (a lawyer shall not engage in
conduct that is prejudicial to the administration of justice) and 1-102(A)(6) (a
lawyer shall not engage in any conduct that adversely reflects on the lawyer’s
fitness to practice law). Respondent never had an attorney-client relationship with
Stump. Nonetheless, the panel and board found, and we agree, that respondent’s
attempt to have Stump dismiss his grievance violated current Prof.Cond.R. 8.4(d)
and (h).
                                     Sanction
       {¶ 15} 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
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.




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       {¶ 16} Although not considered as aggravating or mitigating factors, the
board noted the following background to respondent’s misconduct. Respondent
has practiced as a sole practitioner since 1997, devoting 90 percent of his practice
to criminal defense. After his divorce from his first wife in June 1999, he
regularly visited his three children until June 2005, when his ex-wife moved with
the children to California without his knowledge. The move precipitated child-
custody and child-visitation litigation, as well as respondent’s depression.
       {¶ 17} Contemporaneous with relator’s investigation of the Wilmore
grievance, respondent, who had been sober since 1997, began drinking after he
learned that his daughter had been molested. Shortly thereafter, he suffered a
stroke and underwent surgery to repair a defect in his heart. Although respondent
initially ignored the Wilmore case and relator’s letters regarding the investigation,
he began to cooperate in the investigation after he sought treatment for alcoholism
and other issues in 2008.
       {¶ 18} As aggravating factors, the board found that respondent had
committed multiple offenses and had failed to cooperate in the disciplinary
process. BCGD Proc.Reg. 10(B)(1)(d) and (e). As mitigating factors, the parties
stipulated and the board found that respondent (1) did not have a prior
disciplinary record, see BCGD Proc.Reg. 10(B)(2)(a); (2) has made restitution in
the Wilmore matter, although it took him over three years to do so, see BCGD
Proc.Reg. 10(B)(2)(c); and (3) had other sanctions imposed in the Stump matter,
see BCGD Proc.Reg. 10(B)(2)(f).
       {¶ 19} Additionally in mitigation, the board found clear and convincing
evidence that respondent has been diagnosed with bipolar affective disorder and
alcohol dependency, both of which significantly contributed to his misconduct.
He has successfully completed a treatment program at the Cleveland Clinic and is
fully compliant with both his psychological treatment and a two-year OLAP
contract that he entered on November 5, 2008. He has been sober since April 20,



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2008, and regularly attends Alcoholics Anonymous meetings.          Respondent’s
treatment providers agree that he can return to the competent, ethical practice of
law. See BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv). The board further found
that respondent did not have a dishonest or selfish motive for his misconduct. See
BCGD Proc.Reg. 10(B)(2)(b).
       {¶ 20} In light of respondent’s eventual cooperation with the disciplinary
process and his progress in treatment, relator has changed its recommended
sanction from an indefinite suspension to a two-year suspension, all stayed on the
conditions that respondent complete his OLAP contract, continue to be monitored
by his monitoring attorney, commit no further misconduct, and pay the costs of
the proceeding. Respondent argued that in light of the substantial mitigating
factors, a one-year suspension stayed on the same conditions was appropriate.
       {¶ 21} The panel and the board recommend that we suspend respondent
from the practice of law for one year, all stayed upon the conditions that he
complete a three-year probationary period during which he remain subject to, and
in compliance with, his OLAP contract, continue to be monitored by an appointed
monitoring attorney pursuant to Gov.Bar R. V(9), regularly attend Alcoholics
Anonymous meetings, commit no further misconduct, and pay the costs of these
proceedings.
       {¶ 22} The board does not cite any cases to support its recommendation.
However, we note that in Akron Bar Assn. v. Goodlet, 99 Ohio St.3d 355, 2003-
Ohio-3935, 792 N.E.2d 1072, ¶ 10-15, we imposed a one-year suspension stayed
upon similar conditions for violations of DR 6-101(A)(3), 7-101(A)(2), 7-
101(A)(3) (a lawyer shall not prejudice his client during the course of the
professional relationship), and 1-102(A)(5), and Gov.Bar R. V(4)(G). There,
testimony established that at the time he committed his misconduct, the attorney
suffered from severe and untreated depression, but that he had since recognized




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the need for treatment and had a significant chance of recovery if he complied
with treatment recommendations. Id. at ¶ 7-8.
       {¶ 23} Based upon the foregoing, we adopt the findings and conclusions
of the board, as well as the board’s recommended sanction. Accordingly, John
Joseph Chambers is hereby suspended from the practice of law in Ohio for one
year, with the entire suspension stayed on the conditions recommended by the
board and set forth above. If respondent fails to meet these conditions, the stay of
his suspension will be lifted, and respondent will serve one year of actual
suspension from the practice of law. Costs are taxed to respondent.
                                                            Judgment accordingly.
       PFEIFER,    ACTING    C.J.,   and       LUNDBERG   STRATTON,    O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
       The late CHIEF JUSTICE THOMAS J. MOYER did not participate in the
decision in this case.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Carol A. Costa,
Assistant Disciplinary Counsel, for relator.
       Mary L. Cibella, for respondent.
                              __________________




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