[Cite as Disciplinary Counsel v. Wineman, 121 Ohio St.3d 614, 2009-Ohio-2005.]




                         DISCIPLINARY COUNSEL v. WINEMAN.
                       [Cite as Disciplinary Counsel v. Wineman,
                         121 Ohio St.3d 614, 2009-Ohio-2005.]
Attorney misconduct, including engaging in conduct prejudicial to the
         administration of justice — Two-year suspension, stayed on conditions.
    (No. 2008-2405 — Submitted February 4, 2009 — Decided May 6, 2009.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                      Discipline of the Supreme Court, No. 07-076.
                                    __________________
         Per Curiam.
         {¶ 1} Respondent, Reese Mark Wineman of Norwalk, Ohio, Attorney
Registration No. 0032268, was admitted to the practice of law in Ohio in 1976.
The Board of Commissioners on Grievances and Discipline recommends that we
suspend respondent’s license to practice for two years, staying the entire
suspension on conditions, based on findings that he attempted to represent clients,
both in and out of the courtroom, while intoxicated. We agree that respondent
committed professional misconduct as found by the board and that a two-year
suspension, conditionally stayed, is appropriate.
         {¶ 2} Relator, Disciplinary Counsel, charged respondent in a two-count
complaint with violations of the Disciplinary Rules of the Code of Professional
Responsibility and the Rules of Professional Conduct.1                     A panel of board
members heard the case, reviewed the parties’ extensive stipulations, and made
findings of fact and conclusions of law and recommended the two-year


1. Relator charged respondent with violations of the 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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conditionally stayed suspension.       The board adopted the panel’s findings of
misconduct and recommendation.
                                   Misconduct
                    Count I — The August 3, 2006 Proceedings
       {¶ 3} On the morning of August 3, 2006, respondent was scheduled to
appear on behalf of clients in two different proceedings before the Huron County
Common Pleas Court. When he arrived at the courthouse, a sheriff’s deputy
handling security suspected from respondent’s appearance and breath that he was
intoxicated. Opposing counsel in one of respondent’s cases came to the same
conclusion after trying to discuss the case with him. The lawyer reported his
suspicions to a magistrate, and the magistrate confirmed the lawyer’s impressions
with the deputy sheriff.
       {¶ 4} The magistrate reported respondent’s condition to the common
pleas judge, who brought respondent into his chambers and confronted him. The
judge also observed the telltale signs of intoxication, including respondent’s
slurred speech and the odor of alcohol. Respondent acknowledged his intoxicated
state, apologizing to the judge and conceding that he needed help. The judge
forbade respondent to participate in the two hearings scheduled for that day, and
respondent agreed to continuances at his cost.
       {¶ 5} Respondent stipulated and the panel and board found the evidence
clear and convincing that respondent’s conduct during the proceedings on August
3, 2006, 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 conduct that adversely reflects on his fitness to practice law). We
accept these findings of misconduct.
                           Count II — The Sandifer Case
       {¶ 6} In April 2007, Michael Sandifer hired respondent to defend him
against a criminal charge in the Norwalk Municipal Court. Sandifer met that




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month with respondent at his office, expecting to discuss the case. He ended up
leaving the meeting abruptly because respondent was obviously intoxicated.
       {¶ 7} Respondent also appeared under the influence of alcohol at one of
Sandifer’s pretrial hearings. On May 9, 2007, respondent entered the municipal
courtroom, walked by Sandifer without acknowledging his presence, and entered
the judge’s chambers. In chambers, the judge and the assistant law director
prosecuting the case detected the odor of alcohol on him. The judge warned
respondent that he would declare a mistrial and find respondent in contempt if he
appeared at trial while intoxicated.
       {¶ 8} Respondent did not heed the judge’s warning. During a lunch
break on the day of trial, Sandifer noticed that his attorney’s eyes were bloodshot
and his speech was slurred and that he again smelled of alcohol. Respondent was
unresponsive to Sandifer’s request that he ask specific questions of a witness and
instead repeatedly asked his client to remind him of the facts in the case. Sandifer
feared that respondent was again under the influence of alcohol.
       {¶ 9} A jury found Sandifer guilty as charged. In June 2007, Sandifer
discharged respondent, asked for a refund of the $750 fee, and hired a new
lawyer. In part because of respondent’s possible intoxication during trial, the
judge vacated the conviction, and Sandifer was convicted of a lesser crime. In
August 2007, after reviewing a draft of relator’s complaint, respondent returned
Sandifer’s $750.
       {¶ 10} Respondent stipulated and the panel and board found the evidence
clear and convincing that respondent’s conduct in the Sandifer case violated
Prof.Cond.R. 1.1 (a lawyer shall represent a client competently, with the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation), 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to
the administration of justice), and 8.4(h) (a lawyer shall not engage in conduct




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that adversely reflects on his fitness to practice law). We accept these findings of
misconduct.
                                     Sanction
       {¶ 11} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the duties violated by the lawyer in question and
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.            Before making a final
determination, we also weigh evidence of 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.”). Lake Cty. Bar Assn. v. Troy, 121 Ohio St.3d 51,
2009-Ohio-502, 901 N.E.2d 809, ¶ 11.
       {¶ 12} We have already identified respondent’s breaches of duties owed
to his client, the legal profession, and the judicial system. Regarding sanctions in
similar cases, we find Disciplinary Counsel v. Scurry, 115 Ohio St.3d 201, 2007-
Ohio-4796, 874 N.E.2d 521, instructive. In that case, we suspended a lawyer’s
license for two years but stayed the suspension on conditions that the lawyer
receive assistance in his recovery from alcohol dependence. Like respondent,
Scurry also had attempted to conduct his professional affairs while intoxicated,
including having meetings with clients. Although Scurry did not appear in court
under the influence of alcohol, he did contact a local court on numerous occasions
while inebriated.
       {¶ 13} In respondent’s case, finding no aggravating factors, the board
weighed four mitigating factors in his favor. Respondent has no prior disciplinary
record, his misconduct was not motivated by self-interest or dishonesty, he has
cooperated fully in the disciplinary process, and he has offered persuasive
evidence of his professional competence, good character, and reputation apart
from the underlying misconduct. See BCGD Proc.Reg. 10(B)(2)(a), (b), (d), and




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(e). Similar mitigating evidence was presented in Scurry, although that lawyer
had a history of professional discipline related to alcoholism. 115 Ohio St.3d 201,
2007-Ohio-4796, 874 N.E.2d 521, ¶ 14. Moreover, both here and in Scurry, the
lawyers satisfied BCGD Proc.Reg. 10(B)(2)(g)(i) through (iv) (affording
mitigating effect upon a showing that (1) a lawyer has been diagnosed with
alcoholism by a qualified health-care professional, (2) the alcoholism contributed
to cause the misconduct, (3) he has successfully completed an approved treatment
program, and (4) a qualified health-care professional has released him to return,
under specified conditions if necessary, to the competent, ethical, and professional
practice of law).
       {¶ 14} Respondent has a long history of alcohol abuse that includes
unsuccessful treatment regimes.     Paul Caimi, associate director of the Ohio
Lawyers Assistance Program (“OLAP”), testified about respondent’s assessment
as being alcohol dependent, a condition that obviously led to his intoxication on
August 3, 2006, and in the Sandifer case. Respondent originally entered into an
OLAP recovery contract on June 9, 2007.
       {¶ 15} Respondent complied with the terms of that contract to the extent
of regularly attending group counseling meetings and getting a sponsor. Because
he had no medical insurance and felt he could not leave his practice, however, he
did not attend a recommended inpatient treatment program. He relapsed on July
4, 2007, by having an alcoholic beverage. Respondent reported the relapse to
Caimi and has maintained sobriety ever since.
       {¶ 16} Notwithstanding his sobriety, respondent’s failure to enter an
inpatient treatment facility prompted Caimi in February 2008 to formally
terminate his contract with OLAP for noncompliance.            But in May 2008,
respondent reconnected with Caimi and signed another recovery contract. At the
time of the July 21, 2008 panel hearing, respondent had recently obtained an
assessment from a psychiatrist who specializes in chemical dependence. He was




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waiting to receive the doctor’s recommendations for a treatment plan, which
Caimi understood would this time allow outpatient treatment. Caimi assured the
panel that respondent was in compliance with his most recent OLAP contract.
       {¶ 17} The panel and board fully appreciated the threat that respondent’s
unmanaged alcohol dependence posed to the public. The panel stated:
       {¶ 18} “When determining the sanction in this case, the Panel is faced
with two incidents where Respondent consumed alcohol and attempted to
represent clients while under the influence of alcohol. While the record is replete
with testimony of Respondent’s relapses from sobriety and failed treatment
history, the Panel determined that ultimately the sanction must reflect the
appropriate punishment for the violations set forth above. This is not to say that
the Panel does not recognize the potential harm that could have occurred by
Respondent’s altered state while representing clients.     Therefore, considering
Respondent’s long history of practice without a disciplinary record as mitigating
and in view of his cooperation in the disciplinary process, the Panel recommends
that Respondent be suspended from the practice of law for a period of twenty-four
months, with the period of suspension stayed subject to * * * conditions.”
       {¶ 19} The board adopted the panel’s recommended conditions, which are
aimed at assisting respondent’s recovery and ensuring the public’s protection.
These conditions are as follows:
       {¶ 20} 1. Respondent must comply with the terms of his OLAP contract,
including any inpatient or outpatient treatment program determined by OLAP;
       {¶ 21} 2. Respondent must complete a two-year probation in accordance
with Gov.Bar R.V(9), including quarterly reports to a monitoring attorney
appointed by relator as to his compliance with OLAP treatment recommendations
and his progress; and
       {¶ 22} 3. Respondent must not commit any further misconduct.




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       {¶ 23} We accept the board’s recommendation. Respondent is therefore
suspended from the practice of law in Ohio for two years. The suspension is
stayed on the listed conditions. If respondent violates the terms of the stay or his
probation, the stay will be lifted, and his license to practice law will be suspended
for the entire two years. Costs are taxed to respondent.
                                                             Judgment accordingly.
       MOYER,     C.J.,   and    PFEIFER,   LUNDBERG       STRATTON,    O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant
Disciplinary Counsel, for relator.
       Christensen, Christensen, Donchatz, Kettlewell & Owens and Kenneth R.
Donchatz, for respondent.
                            ______________________




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