[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland Metro. Bar Assn. v. Thomas, Slip Opinion No. 2018-Ohio-3267.]




                                        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. 2018-OHIO-3267
         CLEVELAND METROPOLITAN BAR ASSOCIATION v. T HOMAS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as Cleveland Metro. Bar Assn. v. Thomas, Slip Opinion No.
                                   2018-Ohio-3267.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct—
        Conditionally stayed one-year suspension.
   (No. 2017-1730—Submitted January 24, 2018—Decided August 16, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2017-038.
                             _______________________
        Per Curiam.
        {¶ 1} Respondent, Sam Thomas III, of Shaker Heights, Ohio, Attorney
Registration No. 0067848, was admitted to the practice of law in Ohio in 1997. In
2010, we imposed a stayed six-month suspension on him for filing a misleading
document in a client’s bankruptcy proceeding and neglecting a different client’s
personal-injury case. See Cleveland Metro. Bar Assn. v. Thomas, 125 Ohio St.3d
                             SUPREME COURT OF OHIO




24, 2010-Ohio-1031, 925 N.E.2d 959.          In August 2017, relator, Cleveland
Metropolitan Bar Association, filed a complaint alleging that Thomas had violated
the professional-conduct rules in another client matter. The Board of Professional
Conduct considered the case on the parties’ consent-to-discipline agreement. See
Gov.Bar R. V(16).
       {¶ 2} In the agreement, Thomas admitted that while representing a married
couple in a foreclosure case, he filed a brief in opposition to a summary-judgment
motion six days past the deadline and he later failed to respond to the court’s order
to show cause as to why he filed the brief late. Noting that Thomas had failed to
respond to the show-cause order, the court ultimately granted summary judgment
against Thomas’s clients. The clients paid Thomas a flat fee to represent them on
appeal. Thomas’s fee agreement, however, indicated that “no part [of the fee] shall
be returned to the Client,” and Thomas failed to simultaneously notify the client
who signed the agreement that she may be entitled to a refund of all or a part of the
fee if he did not complete the representation. The court of appeals ultimately
affirmed the trial court’s summary-judgment decision.
       {¶ 3} Based on this conduct, the parties stipulated that Thomas violated
Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client) and 1.5(d)(3) (prohibiting a lawyer from charging a fee
denominated as “nonrefundable” without simultaneously advising the client in
writing that the client may be entitled to a refund of all or part of the fee if the
lawyer does not complete the representation).
       {¶ 4} The parties agreed to the existence of one aggravating factor—that
Thomas has prior discipline. See Gov.Bar R. V(13)(B)(1). In mitigation, the
parties stipulated that Thomas lacked a dishonest or selfish motive, he made full
and free disclosures to the board and had a cooperative attitude toward the
disciplinary proceedings, and he instituted office-management practices designed
to prevent similar misconduct in the future. See Gov. Bar R. V(13)(C)(2) and (4).




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The consent-to-discipline agreement also indicated that Thomas had signed a three-
year mental-health contract with the Ohio Lawyers Assistance Program (“OLAP”)
and that he was in counseling for issues relating to depression, anxiety, and
organizational problems.
       {¶ 5} As a sanction, the parties jointly recommended that Thomas serve a
one-year suspension, stayed in its entirety on conditions, including a one-year
period of monitored probation. To support its recommendation, the parties cited
several cases with similar misconduct and aggravating and mitigating factors,
including Disciplinary Counsel v. Simon, 146 Ohio St.3d 44, 2016-Ohio-535, 51
N.E.3d 605 (imposing a stayed six-month suspension on an attorney who failed to
reasonably communicate with clients in two separate matters; the attorney had a
prior disciplinary record but lacked a dishonest or selfish motive), and Mahoning
Cty. Bar Assn. v. Hanni, 145 Ohio St.3d 492, 2016-Ohio-1174, 50 N.E.3d 542
(imposing a conditionally stayed one-year suspension on an attorney who neglected
a client’s child-custody matter; the attorney had a prior disciplinary record but
lacked a dishonest or selfish motive and cooperated in the disciplinary process).
       {¶ 6} The board found that the consent-to-discipline agreement conformed
to the requirements of Gov.Bar R. V(16), and it recommends that we adopt the
agreement. The board noted that a conditionally stayed one-year suspension is the
appropriate sanction here—although it may be more severe than would otherwise
be warranted for Thomas’s misconduct—because this is his second disciplinary
case. The board also concluded that Thomas’s efforts to institute improved office-
management practices, his willingness to submit to monitored probation, and his
participation in counseling for his mental disorder weighed against the imposition
of an actual suspension.
       {¶ 7} We agree that Thomas violated Prof.Cond.R. 1.3 and 1.5(d)(3) and,
in accord with the precedents cited in the parties’ agreement, that a conditionally




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stayed one-year suspension is the appropriate sanction in this case. We therefore
adopt the parties’ consent-to-discipline agreement.
          {¶ 8} Sam Thomas III is hereby suspended from the practice of law for one
year, with the entire suspension stayed on the conditions that he (1) serve a one-
year term of monitored probation pursuant to Gov.Bar R. V(21), (2) complete at
least six hours of continuing legal education relating to law-practice management,
in addition to the requirements of Gov.Bar R. X, within one year of this court’s
disciplinary order, (3) maintain compliance with his three-year OLAP contract
dated May 17, 2017, and (4) engage in no further misconduct. If Thomas fails to
comply with any condition of the stay, the stay will be lifted and he will serve the
full one-year suspension. Costs are taxed to Thomas.
                                                            Judgment accordingly.
          O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ.,
concur.
          KENNEDY, J., concurs in judgment only, with an opinion.
          DEGENARO, J., not participating.
                                _________________
          KENNEDY, J., concurring in judgment only.
          {¶ 9} I concur in the majority’s decision to suspend respondent, Sam
Thomas III, from the practice of law for one year, with the entire suspension stayed
on satisfaction of the stated conditions. I write separately because the Board of
Professional Conduct improperly considered Thomas’s mental-health issues as a
mitigating factor.
          {¶ 10} When imposing sanctions for attorney misconduct, we consider the
mitigating factors listed in Gov.Bar R. V(13)(C). Disciplinary Counsel v. Pickrel,
151 Ohio St.3d 466, 2017-Ohio-6872, 90 N.E.3d 853, ¶ 10. Relevant currently is
Gov.Bar R. V(13)(C)(7), which permits the existence of a mental disorder or




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                               January Term, 2018




chemical dependency to be considered a mitigating factor “when there has been all
of the following”:


               (a) A diagnosis of a disorder by a qualified health care
       professional or qualified chemical dependency professional;
               (b) A determination that the disorder contributed to cause the
       misconduct;
               (c) In the case of mental disorder, a sustained period of
       successful treatment or in the case of substance use disorder or
       nonsubstance-related disorder, a       certification   of   successful
       completion of an approved treatment program;
               (d) A prognosis from a qualified health care professional or
       qualified chemical     dependency professional that the attorney
       will be able to return to competent, ethical professional practice
       under specified conditions.


If any one of these four requirements is not established, the mental disorder or
qualified chemical dependency may not be considered as mitigation. See, e.g.,
Disciplinary Counsel v. Joltin, 147 Ohio St.3d 490, 2016-Ohio-8168, 67 N.E.3d
780, ¶ 22 (board did not consider attorney’s mental-health issues to be mitigating
factors in absence of proof that they caused his misconduct).
       {¶ 11} In this matter, the parties entered into a consent-to-discipline
agreement, which set forth stipulations of aggravating and mitigating factors. One
of the stipulations of mitigation was the fact that Thomas had entered into an Ohio
Lawyers Assistance Program contract, was in compliance with its terms, and was
working with a counselor for issues related to depression and anxiety. While the
board recognized that the stipulation did not satisfy Gov.Bar R. V(13)(C)(7), it
nevertheless found it “appropriate to give some weight in mitigation to the




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                            SUPREME COURT OF OHIO




diagnosed disorder for which [Thomas] has sought counseling.” Because the
stipulation fails to satisfy Gov.Bar R. V(13)(C)(7), I would not afford Thomas’s
mental-health issues any weight in mitigation.
       {¶ 12} Therefore, I respectfully concur in judgment only.
                               _________________
       Weston Hurd, L.L.P., and Steven L. Wasserman; and Heather M. Zirke and
Kari L. Burns, Bar Counsel, for relator.
       Sam Thomas III, pro se.
                               _________________




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