[Cite as Cleveland Metro. Bar Assn. v. Johnson, 127 Ohio St.3d 97, 2010-Ohio-4832.]




          CLEVELAND METROPOLITAN BAR ASSOCIATION v. JOHNSON.
                   [Cite as Cleveland Metro. Bar Assn. v. Johnson,
                         127 Ohio St.3d 97, 2010-Ohio-4832.]
Attorney misconduct, including neglecting entrusted legal matters — One-year
        suspension with six months stayed on conditions.
     (No. 2010-0693 — Submitted July 6, 2010 — Decided October 7, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 09-039.
                                   __________________
        Per Curiam.
        {¶ 1} Respondent, Rita R. Johnson of University Heights, Ohio,
Attorney Registration No. 0065959, was admitted to the practice of law in Ohio in
1996. In June 2009, relator, Cleveland Metropolitan Bar Association, filed a
complaint charging respondent with violations of the Code of Professional
Responsibility and the Ohio Rules of Professional Conduct1 alleging that she had
neglected legal matters entrusted to her, failed to provide competent
representation, disobeyed an obligation under the rules of a tribunal, and failed to
take reasonable steps to protect a client’s interest upon the termination of her
representation. The board recommends that we suspend respondent for one year,
with six months stayed on the condition that she enter into a three-year contract
with the Ohio Lawyers Assistance Program (“OLAP”) and be in compliance with
that contract before seeking reinstatement to the practice of law. Respondent


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
superseded the Code of Professional Responsibility.
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objects to the board’s recommendation, arguing that the board did not consider
certain mitigating evidence and that it relied upon cases that are distinguishable
from her own to determine the appropriate sanction.
           {¶ 2} For the reasons that follow, we overrule respondent’s objections
and adopt the board’s findings of fact and conclusions of law and accept its
recommendation that we impose a one-year suspension with six months stayed.
As conditions of the stay, however, respondent shall (1) commit no further
misconduct, (2) submit to a mental-health evaluation conducted by OLAP, and if
OLAP determines that treatment is necessary, (3) enter into an OLAP contract for
a duration to be determined by OLAP, and (4) comply with all OLAP treatment
recommendations.
                                     Misconduct
           {¶ 3} Relator’s complaint alleges that respondent neglected two
unrelated legal matters that had been entrusted to her. The parties have stipulated
that in the first matter, a man hired respondent to defend himself, his wife, and his
company in a civil action in federal district court and to file a counterclaim.
Respondent did not appear at the initial case-management conference or at the
depositions of nonparty witnesses. She also failed to take any depositions and to
meet several discovery-related deadlines. After the court denied her motion to
withdraw as counsel, respondent failed to respond to a motion to dismiss the
counterclaim and a motion for default judgment. The court granted the motions,
and when respondent failed to notify her clients of or appear at a damages
hearing, it entered a default judgment of $331,279.80 against all three of her
clients.
           {¶ 4} The second matter involved a client who, in 2005, hired respondent
to represent her on a contingency basis in an action against the city of Cleveland.
Respondent filed a complaint on the client’s behalf in the Cuyahoga County
Common Pleas Court, but failed to timely respond to either discovery requests or




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the city’s motion to dismiss the complaint. The trial court granted the unopposed
motion to dismiss, without prejudice, citing respondent’s failure to timely
prosecute the case. After respondent refiled the complaint, the city removed the
case to federal district court. That court then granted respondent’s motion to
withdraw as counsel and dismissed the case without prejudice, “with the proviso
that Plaintiff [could] re-instate [the] action on or before March 21, 2008.”
Respondent did not inform her client of the deadline for refiling the case, which
was not refiled before the deadline.
        {¶ 5} The parties stipulated, the board found, and we agree, that clear
and convincing evidence demonstrates that respondent’s conduct with respect to
the first matter violated DR 6-101(A)(3) (prohibiting neglect of an entrusted legal
matter) and Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence
and promptness in representing a client), 1.16(c) (prohibiting a lawyer from
withdrawing from representation in a proceeding without leave of court if the
rules of the tribunal so require), and 3.4(c) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal) and that her conduct with
respect to the second matter violated Prof.Cond.R. 1.3 and 1.16(d) (requiring a
lawyer withdrawing from representation to take reasonably practicable steps to
protect a client’s interest).
                                       Sanction
        {¶ 6} In recommending a sanction, the panel and board considered the
ethical duties that respondent had violated, 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.”), and the sanctions imposed in similar cases. See,
e.g., Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775
N.E.2d 818, ¶ 16; Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-
Ohio-5251, 875 N.E.2d 935, ¶ 21.



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         {¶ 7} The parties stipulated and the panel and board found that
respondent was the subject of a prior disciplinary proceeding.2                      See BCGD
Proc.Reg. 10(B)(1)(a). The panel and board also found that, although not charged
as an offense in the complaint, respondent’s admitted failure to notify her clients
that she did not maintain malpractice insurance was an aggravating factor
weighing in favor of a greater sanction.
         {¶ 8} In mitigation, the panel and board found that respondent did not act
with a selfish motive, cooperated in the disciplinary proceedings, admitted and
apologized for her ethical lapses, and expressed remorse for the consequences to
her clients. See BCGD Proc.Reg. 10(B)(2)(b) and (d). They declined, however,
to consider as a mitigating factor the stress that respondent had suffered as a result
of family and financial matters at the time of her misconduct, reasoning that
respondent had presented no affidavits, no reports from a psychologist,
psychiatrist, therapist, or counselor, and no medical records to substantiate that
she suffered from a mental disability, as required by BCGD Proc.Reg.
10(B)(2)(g). Although noting that respondent had not practiced law since her
appointment as the clerk of court for the Garfield Heights Municipal Court in
November 2007, the board does not appear to have assigned any mitigating value
to this fact.
         {¶ 9} Referring to the actual suspensions we have imposed for similar
conduct in Columbus Bar Assn. v. Dice, 120 Ohio St.3d 455, 2008-Ohio-6787,
900 N.E.2d 189, and Columbus Bar Assn. v. DiAlbert, 120 Ohio St.3d 37, 2008-

2. In Cuyahoga Cty. Bar Assn. v. Johnson, 123 Ohio St.3d 65, 2009-Ohio-4178, 914 N.E.2d 180,
respondent received a public reprimand for violating DR 1-102(A)(5) (prohibiting a lawyer from
engaging in conduct prejudicial to the administration of justice), 6-101(A)(2) (prohibiting a lawyer
from handling a legal matter without preparation adequate under the circumstances), 6-101(A)(3)
(prohibiting a lawyer from neglecting an entrusted legal matter), 7-101(A)(1) (prohibiting a lawyer
from intentionally failing to seek a client’s lawful objectives), 7-101(A)(2) (prohibiting a lawyer
from intentionally failing to carry out a contract of employment), and 1-104(A) and (B) (requiring
a lawyer to advise clients if the lawyer does not carry malpractice insurance in the specified
amount and to obtain the clients’ written acknowledgement of that warning).




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Ohio-5218, 896 N.E.2d 137, the panel rejected the parties’ stipulated sanction of a
one-year suspension with the entire period stayed on conditions. Instead the panel
recommended that respondent be suspended for one year with six months stayed
on the conditions that she enter into an OLAP contract to learn to manage her
stress and personal problems, be in compliance with that contract before her
reinstatement, and serve two years of monitored probation in accordance with
Gov.Bar R. V(9). The board agrees with the panel’s recommendation of a one-
year suspension with six months stayed on conditions, but specifies that
respondent should enter into a three-year OLAP contract, eliminating the
requirement for monitored probation.
                                          Objections
        {¶ 10} Respondent objects to the recommended sanction, challenging the
board’s failure to consider her testimony regarding her stress and her voluntary
withdrawal from the practice of law as factors in mitigation, and contending that
the cases cited by the board in support of the recommended sanction are
distinguishable from the facts herein.3
        {¶ 11} Respondent testified that at the time of her misconduct, she had
significant stress in her life due to her role as a single parent to a four-year-old
child and a newly adopted infant. Because she did not work for the first six or
seven weeks following the adoption, financial hardships led to the repossession of
her car. She also claimed that she now sees a therapist regularly and takes
medication to help her handle the stress in her life.
        {¶ 12} Respondent, however, fails to cite any decisions in which we have
considered generalized stress to be a significant mitigating factor in the absence of
(1) a diagnosis of a mental disability by a qualified health-care professional, (2) a

3. Respondent did not appear for the scheduled oral argument on July 6, 2010. Although she did
file a motion to continue or waive oral argument that day, the court did not receive it until after
argument was completed in her absence. Accordingly, we excuse respondent’s failure to appear
and deem respondent to have waived oral argument.




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determination that the mental disability contributed to cause the misconduct, (3) a
sustained period of successful treatment, and (4) a prognosis from a qualified
health-care professional that the attorney will be able to return to the competent,
ethical, and professional practice of law. See BCGD Proc.Reg. 10(B)(2)(g).
       {¶ 13} We recently considered and rejected a similar argument in
Disciplinary Counsel v. Robinson, 126 Ohio St.3d 371, 2010-Ohio-3829, 933
N.E.2d 1095, in which Robinson claimed that Cincinnati Bar Assn. v. Fidler
(1998), 83 Ohio St.3d 396, 397, 700 N.E.2d 323, and Disciplinary Counsel v.
Spencer (1994), 71 Ohio St.3d 316, 317, 643 N.E.2d 1086, permitted generalized
stress to be considered as a mitigating factor. Id. at ¶ 38.
       {¶ 14} In Robinson, we noted that it was not clear in Fidler whether the
court had considered Fidler’s stress to be a significant mitigating factor. And we
observed that in Spencer, the “respondent’s stress was due, at least in part, to
familial circumstances that were beyond his control,” while Robinson’s stress was
the direct result of his own conscious choices—first to seek public office, and
then to commit various acts of misconduct when his employer objected to that
decision. Robinson at ¶ 38.
       {¶ 15} Moreover, we now observe that in Fidler and Spencer, we adopted
the findings of the board, which had adopted the findings of the panel, which had
actually received the evidence of stress and found it to be credible. Fidler at 323-
324; Spencer at 317. “We will defer to a panel’s credibility determination in our
independent review of discipline cases unless the record weighs heavily against
those determinations.” Disciplinary Counsel v. Heiland, 116 Ohio St.3d 521,
2008-Ohio-91, 880 N.E.2d 467, ¶ 39, citing Cincinnati Bar Assn. v. Statzer, 101
Ohio St.3d 14, 2003-Ohio-6649, 800 N.E.2d 1117, ¶ 8. Here, in contrast, the
panel rejected respondent’s testimony regarding stress as a factor in mitigation
and the record does not weigh heavily against the panel’s credibility
determination.




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                                January Term, 2010




       {¶ 16} The standards set forth in BCGD Proc.Reg. 10(B)(2)(g) create an
objective standard to ensure that there is some objective evidence of a mental
disability that rises above the stresses of ordinary life that every attorney faces at
some point during his or her career. While respondent may have a qualifying
mental disability, she has failed to carry her burden of proving it. As the dissent
observed in respondent’s prior disciplinary case, “The fact that respondent had a
busy professional workload and various issues in her personal life during this
same time is entitled to miniscule weight in mitigation, and it does not excuse her
failure to provide professional services.” (Emphasis added.) Johnson, 123 Ohio
St.3d 65, 2009-Ohio-4178, 914 N.E.2d 180, at ¶ 17 (Moyer, C.J., dissenting).
       {¶ 17} Respondent’s argument that her decision to find employment that
does not involve the practice of law should carry greater weight in mitigation is
likewise without merit. The fact that respondent stopped practicing law so that
she would stop causing harm to clients appears to be a prudent decision, but her
inadequate communication with her clients and lack of attention to detail as she
departed from the practice served to exacerbate the harm to one of her clients,
who did not receive timely notice of the deadline to refile her case.
       {¶ 18} Any mitigating value that respondent’s voluntary withdrawal from
the practice of law may have had is outweighed by the aggravating factors found
by the board. Moreover, in addition to the aggravating factors found by the
board, we note that the respondent’s misconduct spans more than one year and
involves multiple instances of neglect in two separate client matters. Therefore,
we consider respondent’s pattern of misconduct involving multiple offenses as
factors in aggravation. BCGD Proc.Reg. 10(B)(1)(c) and (d).
       {¶ 19} In her final argument, respondent attempts to distinguish her case
from the cases that the board cited in support of its recommended sanction. In
Columbus Bar Assn. v. Dice, 120 Ohio St.3d 455, 2008-Ohio-6787, 900 N.E.2d
189, we imposed a one-year suspension with a conditional six-month stay on an



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attorney who delayed filing an appellate brief for one client and failed to appear
for oral argument on behalf of another client and then initially failed to cooperate
in the resulting disciplinary investigation.
       {¶ 20} Respondent contends that her case differs because she has fully
cooperated in the disciplinary investigation, while Dice did not.            Although
respondent is correct that Dice did not initially cooperate in the investigation and
was consequently found to have violated DR 1-102(A)(6) and Gov.Bar R.
V(4)(G), in mitigation we found that he had no prior record of discipline (unlike
respondent in this case), had no dishonest motive, eventually cooperated in the
disciplinary process, and suffered from a diagnosed mental disability that had
contributed to the misconduct. See BCGD Proc.Reg. 10(B)(2)(a), (b), (d), and
(g). Dice at ¶ 8, 10-11.
       {¶ 21} Respondent also attempts to distinguish her case from Columbus
Bar Assn. v. DiAlbert, 120 Ohio St.3d 37, 2008-Ohio-5218, 896 N.E.2d 137. In
that case, we imposed a two-year suspension with 18 months stayed on conditions
on an attorney who allowed the statute of limitations on a client’s claim to expire
without filing a complaint, ignored the client’s repeated efforts to contact him,
and failed to advise the client that he did not carry professional-liability insurance.
Respondent contends that DiAlbert’s prior misconduct was more serious than her
own because he had received a six-month stayed suspension, see Columbus Bar
Assn. v. DiAlbert, 98 Ohio St.3d 386, 2003-Ohio-1091, 785 N.E.2d 747, while she
received only a public reprimand.         We note, however, that DiAlbert also
presented evidence of a mitigating mental disability pursuant to BCGD Proc.Reg.
10(B)(2)(g) and received a two-year suspension with 18 months stayed, while the
board recommends only a one-year suspension with six months stayed for
respondent’s comparable misconduct. Thus, the board’s recommendation has
already taken these differences into account.
                                     Conclusion




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       {¶ 22} Based upon the foregoing, we overrule respondent’s objections and
adopt the board’s findings of fact and misconduct. The record demonstrates by
clear and convincing evidence that respondent’s neglect of one client matter by
failing to participate in the discovery process and by failing to respond to a
motion for default judgment resulted in a judgment in excess of $330,000 against
her clients. Her failure to timely prosecute a second client matter resulted in the
dismissal without prejudice of that client’s complaint. Her subsequent withdrawal
as counsel in that case also resulted in a dismissal without prejudice, and her
failure to timely notify the client of the deadline to refile the complaint in effect
barred the client from refiling the action. Having examined this conduct, weighed
the aggravating and mitigating factors, and reviewed the sanctions imposed for
comparable conduct, we agree that a one-year suspension with six months stayed
on conditions is the appropriate sanction for respondent’s misconduct.
       {¶ 23} Accordingly, Rita R. Johnson is suspended from the practice of
law in the state of Ohio for one year with six months stayed on the conditions that
she (1) commit no further misconduct and (2) submit to a mental-health
evaluation conducted by OLAP, and if OLAP determines that treatment is
necessary (3) enter into an OLAP contract, the duration of which shall be
determined by OLAP, and (4) comply with all of OLAP’s treatment
recommendations. If respondent fails to comply with the conditions of the stay,
the stay will be lifted, and she will serve the entire one-year suspension.
       {¶ 24} Costs are taxed to respondent.
                                                              Judgment accordingly.
       BROWN,      C.J.,   and    PFEIFER,       LUNDBERG   STRATTON,    O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                 __________________
       Willacy, LoPresti & Marcovy, Timothy A. Marcovy, and Thomas P.
Marotta, for relator.



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Rita R. Johnson, pro se.
                    ______________________




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