[Cite as Trumbull Cty. Bar Assn. v. Ohlin, 133 Ohio St.3d 241, 2012-Ohio-4565.]




                 TRUMBULL COUNTY BAR ASSOCIATION v. OHLIN.
                      [Cite as Trumbull Cty. Bar Assn. v. Ohlin,
                         133 Ohio St.3d 241, 2012-Ohio-4565.]
Attorneys—Misconduct—Failure to participate in disciplinary process—Motion
        to supplement the record—Exceptional circumstances—Presentation of
        mitigating evidence—Remand.
    (No. 2012-0659—Submitted August 22, 2012—Decided October 9, 2012.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 11-026.
                                   __________________
        Per Curiam.
        {¶ 1} Respondent, Joseph David Ohlin of Warren, Ohio, Attorney
Registration No. 0031532, was admitted to the practice of law in Ohio in 1985.
On November 3, 2009, we suspended Ohlin for his failure to register as an
attorney for the 2009-2011 biennium and for failing to comply with the
continuing legal education requirements of Gov.Bar R. X.                      In re Attorney
Registration Suspension of Ohlin, 123 Ohio St.3d 1475, 2009-Ohio-5786, 915
N.E.2d 1256; In re Continuing Legal Edn. Suspension of Ohlin, 123 Ohio St.3d
1475, 2009-Ohio-5786, 915 N.E.2d 1256.1 And on August 24, 2010, in a default
proceeding, we indefinitely suspended him for his neglect of an entrusted legal
matter, failure to promptly deliver funds to which a client was entitled, and failure
to cooperate in the resulting disciplinary investigation. Disciplinary Counsel v.




1. Pursuant to Gov.Bar R. X(5)(C), however, a sanction imposed for failure to comply with the
continuing legal education requirements of Gov.Bar R. X shall not be considered in the imposition
of a sanction for attorney misconduct.
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Ohlin, 126 Ohio St.3d 384, 2010-Ohio-3826, 934 N.E.2d 323. These suspensions
remain in effect.
       {¶ 2} On April 11, 2011, relator, Trumbull County Bar Association, filed
a six-count complaint alleging that Ohlin had engaged in similar misconduct with
respect to six additional client matters and had failed to cooperate in the resulting
disciplinary investigations.    Ohlin did not answer the complaint, and relator
moved for default.      A master commissioner appointed by the Board of
Commissioners on Grievances and Discipline found that Ohlin was in default and
that he had committed most of the charged misconduct; citing the presence of
significant aggravating factors, the master commissioner recommended that Ohlin
be permanently disbarred. The board adopted the master commissioner’s findings
of fact, conclusions of law, and recommended sanction.
       {¶ 3} In response to our order to show cause, Ohlin filed objections to
the board’s report and moved to remand this cause to the board so that he can
present exculpatory and mitigating evidence. For the reasons that follow, we
grant Ohlin’s motion to remand this cause to the board, but we limit the scope of
the remand to the presentation and consideration of mitigation evidence.
       {¶ 4} We grant remands to supplement the record in attorney-
disciplinary matters “only under the most exceptional circumstances.” Dayton
Bar Assn. v. Stephan, 108 Ohio St.3d 327, 2006-Ohio-1063, 843 N.E.2d 771, ¶ 5.
       {¶ 5} In Butler Cty. Bar Assn. v. Portman, 121 Ohio St.3d 518, 2009-
Ohio-1705, 905 N.E.2d 1203, the board had adopted a master commissioner’s
report granting the relator’s motion for default, making findings of misconduct
with respect to all six counts of the complaint, and recommending that Portman be
permanently disbarred. Id. at ¶ 4. After the board filed its report with this court,
Portman moved to supplement the record with evidence of a claimed mental
disability and restitution. We granted the motion and remanded the case to the
board for consideration of the evidence Portman had proffered in mitigation and,




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if appropriate, a mental health evaluation. Id. at ¶ 5; see also Butler Cty. Bar
Assn. v. Portman, 116 Ohio St.3d 1450, 2007-Ohio-6842, 878 N.E.2d 28.
       {¶ 6} On remand, the board found that Portman’s absence of a prior
disciplinary record, payment of restitution, acknowledgment of the wrongful
nature of his conduct, and cooperation in the disciplinary process following the
remand, as well as his qualifying mental disability, see BCGD Proc.Reg.
10(B)(2)(a), (d), and (g), were mitigating factors that weighed in favor of a lesser
sanction. Portman, 121 Ohio St.3d 518, 2009-Ohio-1705, 905 N.E.2d 1203, ¶ 26-
27.   Thus, the board modified its recommended sanction from permanent
disbarment to indefinite suspension. Id. at ¶ 32-33. We adopted the board’s
revised recommendation but modified it to afford Portman credit for his interim
suspension and to place certain conditions upon any future reinstatement. Id. at
¶ 35-37.
       {¶ 7} Since deciding Portman, we have granted motions to remand for
the introduction and consideration of mitigating evidence in a small, but growing,
number of cases. See, e.g., Cleveland Metro. Bar Assn. v. Pryatel, 131 Ohio St.3d
1404, 2012-Ohio-79, 959 N.E.2d 537; Disciplinary Counsel v. Eynon, 130 Ohio
St.3d 1433, 2011-Ohio-5879, 957 N.E.2d 38; Mahoning Cty. Bar Assn. v. Vivo,
128 Ohio St.3d 1452, 2011-Ohio-1750, 944 N.E.2d 1177; Disciplinary Counsel v.
Johnson, 128 Ohio St.3d 1404, 2011-Ohio-807, 941 N.E.2d 1205; and Butler Cty.
Bar Assn. v. Minamyer, 124 Ohio St.3d 1528, 2010-Ohio-1302, 923 N.E.2d 1158.
       {¶ 8} In Vivo, the relator moved the court to remand the case to the board
to determine whether the respondent suffered from a medical condition that led to
his failure to respond to the allegations against him. In Minamyer, the respondent
submitted a response to our show-cause order and some medical records to
document his claims that a traumatic brain injury, depression, and posttraumatic
stress disorder contributed to his misconduct and affected his ability to respond to
the relator’s investigation. And in the remaining cases, the respondents submitted



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some evidence to demonstrate that their misconduct and failure to respond to their
disciplinary investigations was due, at least in part, to their mental health
conditions. We remanded each of these cases but limited the scope of the board’s
review to the consideration of mitigation evidence.
       {¶ 9} In Ohlin’s motion to supplement the record and remand this
proceeding to the board, he states that he regrets his failure to participate in the
disciplinary process and that he wants the opportunity to present evidence “that
could persuade the Board to not impose the ultimate sanction of permanent
disbarment.” Attached to his motion is an affidavit in which he avers that he has
been suffering from depression as a result of the termination of his marriage and
the relocation of his former wife and children to South Carolina. Although his
depression has been treated by a psychiatrist and his family practitioner, he states
that it has interfered with his ability to practice law and that it has prevented him
from participating in this disciplinary action until now. Ohlin acknowledges that
in the past, he entered into a contract with the Ohio Lawyers Assistance Program
but failed to complete it. Now he expresses a desire to reenroll in the program
and comply with all treatment recommendations in hopes that he will one day be
able to resume the competent, ethical, and professional practice of law.
       {¶ 10} Based upon the specific circumstances of this case, we conclude
that Ohlin’s affidavit is sufficient to establish the exceptional circumstances
warranting a remand solely for the consideration of mitigation evidence. We note
that Ohlin is currently serving an indefinite suspension; thus, there is no risk of
additional harm to the public during the pendency of a remand.
       {¶ 11} However, when asking this court to consider remanding a
disciplinary action for a respondent to provide mitigating evidence of a diagnosis
of mental disability, a statement from a mental health treatment professional
should be provided, setting forth, at a minimum, the respondent’s diagnosis and
treatment regimen.




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       {¶ 12} Accordingly, we grant Ohlin’s motion in part, and we remand this
cause to the board for the submission and consideration of mitigation evidence.
                                                           Judgment accordingly.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP,
and MCGEE BROWN, JJ., concur.
       O’DONNELL, J., dissents and would permanently disbar respondent from
the practice of law in Ohio.
                                __________________
       Randil J. Rudloff and Edward L. Lavelle, for relator.
       Joseph Terrence Dull, for respondent.
                               ______________________




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