[Cite as Disciplinary Counsel v. Troller, 138 Ohio St.3d 307, 2014-Ohio-60.]




                         DISCIPLINARY COUNSEL v. TROLLER.
 [Cite as Disciplinary Counsel v. Troller, 138 Ohio St.3d 307, 2014-Ohio-60.]
Attorney misconduct, including continuing to practice law while                            under
        suspension—Two-year suspension, with six months stayed on conditions.
      (No. 2013-0572—Submitted June 5, 2013—Decided January 14, 2014.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 12-057.
                                  ____________________
        Per Curiam.
        {¶ 1} Respondent, David Edward Troller of Mason, Ohio, Attorney
Registration No. 0013296, was admitted to the practice of law in Ohio in 1984.
On December 2, 2005, we suspended him for his failure to register for the 2005-
2007 biennium. In re Attorney Registration Suspension of Troller, 107 Ohio
St.3d 1431, 2005-Ohio-6408, 838 N.E.2d 671 (“Troller I”). And on May 16,
2006, we suspended him for his failure to meet the continuing-legal-education
(“CLE”) requirements of Gov.Bar R. X. In re Continuing Legal Edn. Suspension
of Troller, 109 Ohio St.3d 1464, 2006-Ohio-2403, 847 N.E.2d 443 (“Troller II”).
These suspensions remain in effect.
        {¶ 2} In July 2012, relator, disciplinary counsel, charged Troller with
violations of the Disciplinary Rules of the Code of Professional Responsibility,
the Rules of Professional Conduct,1 and the Rules for the Government of the Bar
of Ohio for failing to comply with the duties of a suspended attorney, continuing


1. Relator charged respondent with misconduct under the applicable rules for acts occurring before
and after February 1, 2007, the effective date of the Rules of Professional Conduct, which
supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the
former and current rules are cited for the same acts, the allegations comprise a single continuing
ethical violation.
                             SUPREME COURT OF OHIO




to practice law while his license was under suspension, and engaging in conduct
that adversely reflects on his fitness to practice law. A probable-cause panel of
the Board of Commissioners on Grievances and Discipline found that probable
cause existed and certified the complaint to the full board on August 6, 2012.
       {¶ 3} The parties entered into joint stipulations of fact, misconduct, and
aggravating and mitigating factors and submitted eight stipulated exhibits. Based
on the parties’ stipulations of fact and misconduct, Troller’s testimony, and
additional evidence submitted at the hearing, the panel found that by continuing to
perform his job duties as the chief legal officer for Clopay Corporation, Troller
continued to practice law for six years after his license was suspended by this
court. The parties also jointly recommended that Troller be suspended from the
practice of law for two years, with six months stayed on conditions. The panel
adopted the stipulated sanction but added one additional condition. The board
adopted the findings of fact, conclusions of law, and recommended sanction of the
panel, and no objections have been filed to the board’s report. We agree that
Troller committed the charged misconduct and adopt the sanction recommended
by the board.
                                    Misconduct
       {¶ 4} Troller was hired by the Clopay Corporation as senior corporate
counsel in 1999 and had no other clients during his employment. From April
2002 to April 2012, he served as the chief legal officer and secretary of the
company and used the title “chief legal officer” on his stationery and business
cards. A January 16, 2012 document signed by Clopay’s board of directors
designates Troller as vice president and secretary—deleting the board’s earlier
reference to him as chief legal counsel—but Troller testified that he held the title
of chief legal officer until April 2012.
       {¶ 5} Troller failed to register as an attorney for the 2005-2007
biennium. Consequently, we suspended his license to practice law on December




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2, 2005. See Troller I. The order of suspension prohibited him from giving legal
advice or counsel, preparing legal instruments for others, or in any manner
performing legal services for others. Id.; Gov.Bar R. VI(6)(C). On May 16,
2006, we imposed a second suspension for his failure to comply with CLE
requirements for the 2003-2004 reporting period and his failure to comply with a
previously ordered monetary sanction for his noncompliance in the 2001-2002
reporting period. See Troller II; Gov.Bar R. X(5)(A)(4) and (6)(B). To date,
Troller has not been reinstated to the practice of law.
       {¶ 6} Although Troller never signed pleadings or appeared in court
proceedings on behalf of Clopay, the parties have stipulated that after he was
suspended, he held himself out as being authorized to practice law and actually
engaged in the practice of law in at least three respects: (1) working with outside
counsel on pending litigation matters, (2) negotiating and drafting contracts on
behalf of the company, and (3) advising human-resources personnel regarding the
termination of employees. During his cross-examination at the panel hearing,
Troller was hesitant to admit that his work constituted the practice of law, but on
further questioning, he admitted that he had been practicing law.
       {¶ 7} Troller stipulated that during his suspension (and while he
continued to hold himself out as chief legal counsel), he hired and managed
outside legal counsel, talked to counsel about the progress of cases, discussed how
to proceed, challenged outside counsel’s plans, and helped the company decide
how to resolve cases. He admitted that he and the company’s outside counsel
discussed discovery proceedings, issues that arose with answers or complaints
that were to be filed in court, depositions, and settlements. He also testified that
he had managed the company’s legal-department employees. In 2006 and 2007,
Troller supervised another attorney who was a full-time employee of the
corporation.    Together they managed the corporation’s contracts, human-




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resources, and litigation issues. And from 2009 to 2012, he worked on the
company’s legal issues with a part-time attorney who served as outside counsel.
       {¶ 8} Troller also stipulated that his job duties included assisting with
human-resources issues and testified that he had probably given legal advice
regarding employee terminations and the risk that the company might be sued for
wrongful discharge based on an employee’s age or health. Significantly, Troller
admitted that negotiating and drafting contracts constituted 25 percent of his work
for Clopay.
       {¶ 9} The panel and board found that Troller had continued to practice
law following the suspension of his license and that this conduct violated DR 1-
102(A)(6) and Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in
conduct that adversely reflects on the lawyer’s fitness to practice law), DR 3-
101(B) and Prof.Cond.R. 5.5(a) (prohibiting a lawyer from practicing law in a
jurisdiction in violation of the regulation of the legal profession in that
jurisdiction), and Gov.Bar R. VI(5)(C) (prohibiting an attorney who has been
suspended from the practice of law for a registration violation from practicing law
or holding himself out as authorized to practice law in Ohio). We adopt these
findings of fact and misconduct.
                                    Sanction
       {¶ 10} When imposing sanctions for attorney misconduct, we consider all
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 BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.
       {¶ 11} As aggravating factors, the parties have stipulated and the panel
and board have found that Troller’s registration suspension is a prior disciplinary




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offense and that he engaged in a pattern of misconduct involving multiple
offenses. See BCGD Proc.Reg. 10(B)(1)(a), (c), and (d). Mitigating factors
include his good-faith effort to rectify his conduct by ceasing his use of the title
“chief legal officer” and avoiding giving any legal advice or engaging in acts that
would constitute the practice of law in his work (once relator initiated its
investigation) and his full cooperation in the disciplinary process. See BCGD
Proc.Reg. 10(B)(2)(d). The parties and the panel and board also note that Troller
is an active member of his church and community and has a long history of
engaging in charitable endeavors including participating in posthurricane rescue
and recovery efforts in New Orleans and Haiti and serving as a volunteer
firefighter. See BCGD Proc.Reg. 10(B)(2)(e). Although Troller testified that he
had signed a contract with the Ohio Lawyers Assistance Program (“OLAP”) and
that he has been receiving treatment for anxiety, he did not submit a status report
from OLAP or his treating professionals and did not establish a diagnosed mental
disability as a mitigating factor in accordance with BCGD Proc.Reg. 10(B)(2)(g).
       {¶ 12} The panel adopted the parties’ stipulated sanction of a two-year
suspension with six months stayed on the conditions that (1) Troller extend his
OLAP contract for two and a half years beyond the date of this court’s final order
in this matter and remain in compliance with its terms, (2) he satisfy his
outstanding CLE obligation, and (3) in conjunction with any application for
reinstatement, he submit a letter from OLAP or a qualified mental-health
professional approved by OLAP stating that he is capable of returning to the
competent, ethical, and professional practice of law.             The panel also
recommended that Troller be required to pay the applicable attorney-registration
fees for the 2005-2007 biennium and each subsequent biennium during which he
practiced law without a license.
       {¶ 13} In support of its recommended sanction, the panel cited several
cases in which we have diverged from the normal penalty of permanent



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disbarment for attorneys who have continued to practice law during a license
suspension. See Disciplinary Counsel v. Koury, 77 Ohio St.3d 433, 436, 674
N.E.2d 1371 (1997) (“The normal penalty for continuing to practice law while
under suspension is disbarment”); Disciplinary Counsel v. Bancsi, 79 Ohio St.3d
392, 683 N.E.2d 1072 (1997) (imposing a one-year suspension with six months
stayed on an attorney who continued to practice law for five weeks during a CLE
suspension); Disciplinary Counsel v. Blackwell, 79 Ohio St.3d 395, 683 N.E.2d
1074 (1997) (imposing a two-year suspension with the second year stayed on an
attorney who continued to practice law for 15 months while his license was
suspended for failing to meet CLE requirements and failing to maintain a current
certificate of registration); Disciplinary Counsel v. Seabrook, 133 Ohio St.3d 97,
2012-Ohio-3933, 975 N.E.2d 1013 (imposing a two-year suspension with the
second year stayed on conditions on an attorney who continued to practice law
during a three-month license suspension and initially failed to cooperate in the
resulting disciplinary investigation); and Disciplinary Counsel v. Carson, 93 Ohio
St.3d 137, 753 N.E.2d 172 (2001) (imposing a two-year suspension with the
second year stayed on an attorney who was suspended from the practice of law for
his failure to pay fines associated with a CLE deficiency and continued to practice
law during his seven-year suspension).
       {¶ 14} The board adopted the panel’s recommended sanction in this case.
       {¶ 15} We are mindful that the primary purpose of the disciplinary
process is not to punish the offender but to protect the public from lawyers who
are unworthy of the trust and confidence essential to the attorney-client
relationship. Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103, 2006-Ohio-
6510, 858 N.E.2d 368, ¶ 10. Accord Disciplinary Counsel v. O’Neill, 103 Ohio
St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53; Disciplinary Counsel v.
Fumich, 116 Ohio St.3d 257, 2007-Ohio-6040, 878 N.E.2d 6, ¶ 17; and Ohio
State Bar Assn. v. Weaver, 41 Ohio St.2d 97, 100, 322 N.E.2d 665 (1975).




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       {¶ 16} Given the limited nature of Troller’s practice during his CLE and
registration suspensions, his cooperation throughout the disciplinary process, his
willingness to stipulate to the alleged misconduct, and the additional mitigating
factors cited by the board, we find that Troller does not pose a great risk to the
public going forward. Therefore, we agree that a two-year suspension with six
months stayed on conditions is the appropriate sanction for Troller’s misconduct.
       {¶ 17} Accordingly, David Edward Troller is suspended from the practice
of law in Ohio for two years, with six months stayed on the conditions that he (1)
extend his OLAP contract for two and a half years beyond the date of this court’s
final order in this matter and remain in compliance with its terms, (2) within 30
days of the date of this order, pay the applicable attorney-registration fees for the
2005-2007 biennium and the three subsequent bienniums during which he
practiced law without a license, and (3) engage in no further misconduct. On
applying for reinstatement to the practice of law, he must, in addition to
demonstrating that he has satisfied the general requirements of Gov.Bar R.
V(10)(A), submit a letter from OLAP or a qualified mental-health professional
approved by OLAP stating that he is capable of returning to the competent,
ethical, and professional practice of law. Costs are taxed to Troller.
                                                             Judgment accordingly.
       PFEIFER, LANZINGER, KENNEDY, and O’NEILL, JJ., concur.
       O’CONNOR, C.J., and O’DONNELL and FRENCH, JJ., dissent and would
impose a two-year actual suspension from the practice of law.
                             ____________________
       Robert R. Berger, Senior Assistant Disciplinary Counsel, and Donald M.
Scheetz, Assistant Disciplinary Counsel, for relator.
       Ulmer & Berne, L.L.P., Melissa Zujkowski, and Isaac Schulz, for
respondent.
                           ________________________



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