[Cite as Disciplinary Counsel v. Talikka, 135 Ohio St.3d 323, 2013-Ohio-1012.]




                        DISCIPLINARY COUNSEL v. TALIKKA.
[Cite as Disciplinary Counsel v. Talikka, 135 Ohio St.3d 323, 2013-Ohio-1012.]
Attorneys—Misconduct—Multiple violations involving multiple clients—Failure
        to return unearned fees—Failure to keep clients informed of status of
        case—Failure to keep client funds in separate account—Conduct
        adversely reflecting on fitness to practice law—Two-year suspension,
        second year stayed on conditions.
    (No. 2012-1324—Submitted January 8, 2013—Decided March 20, 2013.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 11-009.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Leo Johnny Talikka of Painesville, Ohio, Attorney
Registration No. 0006613, was admitted to the practice of law in Ohio in 1968. In
a third amended complaint filed on July 18, 2012, relator, disciplinary counsel,
charged Talikka with professional misconduct in his handling of eight separate
client matters.
        {¶ 2} The parties entered into stipulations of fact and misconduct with
respect to all eight counts, acknowledging that Talikka had committed multiple
violations of 12 Rules of Professional Conduct—38 violations in all.             They
stipulated to 62 exhibits, four aggravating factors, and two mitigating factors, and
agreed that the appropriate sanction for Talikka’s misconduct is a two-year
suspension from the practice of law in Ohio with the second year stayed on
conditions. They also jointly waived a hearing on the matter.
        {¶ 3} A panel of the Board of Commissioners on Grievances and
Discipline adopted the parties’ stipulations of fact and misconduct and
                               SUPREME COURT OF OHIO




aggravating and mitigating factors. The panel found one additional aggravating
factor, but agreed that a two-year suspension with one year stayed on conditions
was the appropriate sanction for Talikka’s misconduct.
           {¶ 4} The board adopted the panel’s findings of fact and misconduct, as
well as its findings regarding the aggravating and mitigating factors present in this
case. However, citing the extensive nature of the misconduct and the harm
caused to the eight affected clients, the board recommended that Talikka be
indefinitely suspended from the practice of law and that reinstatement be
conditioned on the payment of restitution and interest to three of the affected
clients.
           {¶ 5} Talikka objects to the board’s recommended sanction, and the
relator concurs in that objection.        Because we believe that the sanction
recommended by the parties and the panel will adequately protect the public from
future harm, we sustain Talikka’s objection and suspend him from the practice of
law for two years, with the second year stayed on the conditions recommended by
the panel.
                                     Misconduct
           {¶ 6} The parties have stipulated that Talikka committed three violations
of Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client) in his handling of three separate client matters by failing to
file an appellate brief on behalf of one client, failing to respond to a motion to
dismiss and a motion for judgment on the pleadings in a second client’s case, and
failing to file a motion for judicial release for a third client. He failed to inform
two of those clients that their cases had been dismissed, thereby violating
Prof.Cond.R. 1.4(a)(3) (requiring a lawyer to keep the client reasonably informed
about the status of a matter), and failed to refund the unearned portion of their
retainers when they terminated his representation, in violation of Prof.Cond.R.
1.16(e) (requiring a lawyer to promptly refund any unearned fee upon the




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lawyer’s withdrawal from employment). He also failed to respond to reasonable
requests for information from his client in one matter in violation of Prof.Cond.R.
1.4(a)(4).
        {¶ 7} Talikka also engaged in misconduct related to the handling of client
funds. He failed to safeguard $10,000 belonging to a client in his client trust
account, in violation of Prof.Cond.R. 1.15(a) (requiring a lawyer to hold property
of clients in an interest-bearing client trust account, separate from the lawyer’s
own property). He failed to maintain records of the funds he should have been
holding in his client trust account for five separate clients, in violation of
Prof.Cond.R. 1.15(a)(2) (requiring a lawyer to maintain a record for each client on
whose behalf funds are held) and failed to properly administer those funds, in
violation of Prof.Cond.R. 1.15(a)(5) (requiring a lawyer to perform and retain a
monthly reconciliation the funds held in the lawyer’s client trust account).
        {¶ 8} And in three personal-injury matters for which Talikka was to
receive a contingency fee, he failed to have his clients sign closing statements, in
violation of Prof.Cond.R. 1.5(c)(2) (requiring a lawyer entitled to a contingency
fee to prepare a closing statement to be signed by the lawyer and the client,
detailing the lawyer’s compensation, any costs and expenses to be deducted, and
any division of fees with a lawyer not in the same firm), and failed to promptly
distribute all of the funds that his clients were entitled to receive, in violation of
Prof.Cond.R. 1.15(d) (requiring a lawyer to promptly deliver funds or other
property that the client is entitled to receive).
        {¶ 9} Talikka stipulates that his conduct in five of the charged matters
violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation) and that his conduct
with respect to one of those clients violated Prof.Cond.R. 8.4(d) (prohibiting a
lawyer from engaging in conduct that is prejudicial to the administration of
justice). He also acknowledges that his conduct in all eight of the charged counts



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violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that
adversely reflects on the lawyer’s fitness to practice law).
         {¶ 10} On the recommendation of the panel and board, we adopt the
parties’ stipulated findings of fact and misconduct.
                                            Sanction
         {¶ 11} When imposing sanctions for attorney misconduct, we consider
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.
         {¶ 12} Here, Talikka has engaged in a pattern of misconduct in violation
of the Rules of Professional Conduct, as outlined above.
         {¶ 13} As aggravating factors, the parties stipulated and the board found
that Talikka acted with a dishonest or selfish motive, engaged in a pattern of
misconduct, committed multiple offenses, and failed to make restitution to the
clients harmed by his misconduct.1 See BCGD Proc.Reg. 10(B)(1)(b), (c), (d),
and (i). The panel and board also found that Talikka’s conduct harmed a number
of vulnerable clients. See BCGD Proc.Reg. 10(B)(1)(h).
         {¶ 14} As mitigating factors, the parties stipulated that Talikka had no
prior disciplinary record in a career spanning more than 40 years and that he
demonstrated good character apart from the charged misconduct, evidenced by
letters from Judges Thomas D. Lambros, Ronald W. Vettel, Michael A.
Cicconetti, Charles G. Hague, and Alfred W. Mackey.


1. At oral argument, the parties stated that following the board’s issuance of its report, Talikka
made restitution to the affected clients, but that he had not paid them interest for the time that he
held their funds.




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                                January Term, 2013




       {¶ 15} The parties have stipulated that the appropriate sanction for
Talikka’s misconduct is a two-year suspension from the practice of law, with the
second year stayed on the conditions that he (1) commit no further misconduct,
(2) make restitution of $8,674.59 to Jeffrey Homkes, $1,000 to Fran Cantrell, and
$39,196.70 to John Ingram, and (3) complete one year of monitored probation in
accordance with Gov.Bar R. V(9)(B) upon his reinstatement to the practice of
law. The panel adopted the parties’ stipulated sanction and further specified that
regardless of whether the term of the suspension had passed, Talikka should not
be reinstated to the practice of law until he makes the stipulated restitution, plus
interest at the statutory rate calculated from various specified dates to the date of
payment to Jeffrey Homkes, Fran Cantrell, and John Ingram. However, noting
the extensive nature of Talikka’s misconduct, which caused harm to eight separate
clients, the board recommended that he be indefinitely suspended from the
practice of law and that his reinstatement be conditioned on the payment of
restitution plus interest to the affected clients as recommended by the panel.
       {¶ 16} Talikka objects to the board’s recommended sanction, arguing that
it is too harsh in light of his long and distinguished career prior to the charged
misconduct, his excellent character and reputation as attested to by five judges,
his voluntary involvement with the Ohio Lawyers Assistance Program, and the
sanctions this court has imposed in other cases for comparable misconduct.
Relator joins Talikka in urging this court to reject the board’s recommendation
and adopt their stipulated sanction. In support of their argument, Talikka and
relator argue that Talikka’s misconduct is comparable to that of the attorney in
Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297, 2011-Ohio-3181, 951
N.E.2d 775, and that Talikka’s misconduct warrants the same sanction.             In
Folwell, we imposed a two-year suspension with the second year stayed on the
conditions that the attorney commit no further misconduct and submit to a one-
year period of monitored probation.



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       {¶ 17} Folwell, an attorney with approximately 20 years of experience,
stipulated that he had engaged in a pattern of misconduct involving seven separate
client matters and that his conduct adversely reflected on his fitness to practice
law.   He failed to provide competent representation and failed to act with
reasonable diligence by settling a case for a minor client without obtaining
probate court approval, failed to maintain separate client ledgers for his client
trust account, failed to perform monthly reconciliations of that account, and
improperly used client funds.       He also unreasonably delayed performing
contracted work for one client, led a client to believe that his case had been filed
when it had not, accepted retainers from other clients, failed to perform the
contracted work, and delayed for as long as two and a half years before refunding
the unearned portion of his fees. As mitigating factors, the parties stipulated that
Folwell had no prior disciplinary record and had cooperated in the disciplinary
proceedings. See BCGD Proc.Reg. 10(B)(2)(a) and (d).
       {¶ 18} Citing Disciplinary Counsel v. Claflin, 107 Ohio St.3d 31, 2005-
Ohio-5827, 836 N.E.2d 564, at ¶ 14-15, we recognized that disbarment is the
presumptive sanction for misappropriation, but acknowledged that that sanction
can be tempered by mitigating factors. Folwell at ¶ 36. Although we found that
Folwell had engaged in a pattern of misconduct involving multiple offenses and
that he acted with a dishonest or selfish motive, see BCGD Proc.Reg. 10(B)(1)(d)
and (b), we adopted the parties’ recommended sanction of a two-year suspension
with the second year stayed on the conditions that Folwell commit no further
misconduct and complete a one-year period of monitored probation.
       {¶ 19} We have long recognized 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. See, e.g., Disciplinary Counsel v. Agopian, 112 Ohio St.3d
103, 2006-Ohio-6510, 858 N.E.2d 368, ¶ 10.




                                         6
                                January Term, 2013




       {¶ 20} Here, Talikka has no prior disciplinary record in his 40-plus years
of practice and suffered from a series of serious health problems during the time
that he committed his misconduct. He voluntarily participated in a psychological
evaluation conducted by Robert Kaplan, Ph.D., who reports that Talikka does not
suffer from any mental-health or substance-abuse disorder, but that he is a proud
man who took on more work than he could handle to maintain his self-esteem as
he faced those significant health problems. Additionally, Dr. Kaplan reports that
Talikka has accepted full responsibility for his conduct. In light of Talikka’s
decision to stipulate to the facts underlying relator’s complaint as well as the
charged misconduct, we agree.
       {¶ 21} Dr. Kaplan further states that through ongoing counseling, Talikka
has come to understand and accept the limitations that his age- and health-related
issues impose on his work. Talikka has presented letters from five judges who
have known him both personally and professionally for some time. Each of them
attests to his honesty, good character, professionalism, zealous representation of
his clients, and good reputation in the legal community. And although Talikka
has caused harm to vulnerable clients, he has made restitution to those clients
affected by his misconduct and pledged to pay interest on the funds that he
wrongfully held as soon as he is presented with a calculation of the amounts due
and owing. For these reasons, we agree that the sanction recommended by the
parties and the panel is adequate to protect the public from future harm.
       {¶ 22} Accordingly, we suspend Leo Johnny Talikka from the practice of
law in Ohio for two years with the second year stayed on the conditions that he
(1) commit no further misconduct, (2) pay statutory interest within 30 days of the
date of this order to the following clients at the rate prescribed by R.C.
1343.03(A) and 5703.47 on the following principal amounts for the specified
periods of time: (a) $8,674.59 from May 6, 2009, to the date restitution was made
to Jeffrey Homkes, (b) $1,000 from July 15, 2011, to the date restitution was



                                         7
                                  SUPREME COURT OF OHIO




made to Fran Cantrell, and (c) $39,196.70 from November 30, 2011, to the date
restitution was made to John Ingram, and (3) upon reinstatement serve a one-year
period of monitored probation in accordance with Gov.Bar R. V(9)(B). If Talikka
fails to comply with the conditions of the stay, the stay will be lifted and he will
serve the full two-year suspension. Costs are taxed to Talikka.
                                                                        Judgment accordingly.
         PFEIFER, O’DONNELL, KENNEDY, and O’NEILL, JJ., concur.
         O’CONNOR, C.J., and LANZINGER and FRENCH, JJ., dissent.
                                    __________________
         O’CONNOR, C.J., dissenting.
         {¶ 23} I dissent from the majority’s decision to sustain the parties’
objection to the recommended sanction of the Board of Commissioners on
Grievances and Discipline and to adopt the parties’ stipulated findings of fact and
misconduct.      I conclude that the majority’s decision that Talikka should be
suspended from the practice of law in Ohio for two years with the second year
stayed on the conditions that he (1) commit no further misconduct and (2) pay
statutory interest rates prescribed by R.C. 1343.03(A) and 5703.47 to the clients
who were victims of his misconduct2 is wholly inadequate when a thorough
review of the record is made.
         {¶ 24} Given the nature of Talikka’s misconduct, which affected several
vulnerable victims, and his failures to refund an unearned portion of his clients’
retainers when they terminated his representation, to safeguard $10,000 belonging
to a client in his client trust account, and to promptly distribute all of the funds




2. The majority opinion provides that within 30 days of the date of this order, Talikka shall pay
statutory interest rates to Jeffrey Homkes, on principal of $8,674.59, from May 6, 2009, to the date
restitution is made; to Fran Cantrell, on principal of $1,000, from July 15, 2011, to the date
restitution is made; and to John Ingram, on principal of $39,196.70, from November 30, 2011, to
the date restitution is made.




                                                 8
                                January Term, 2013




that his clients were entitled to receive, the board’s recommendation of an
indefinite suspension properly reflects our obligation to protect the public.
                           The nature of the misconduct
       {¶ 25} The majority omits the details of Talikka’s misconduct because the
parties stipulated to the facts and misconduct in this case. But a review of the
misconduct is essential and I believe will underscore the inadequacy of the
majority’s decision. Indeed, given the significant number of violations and the
deleterious effect Talikka’s misconduct caused to eight vulnerable clients, a more
severe sanction than that imposed by the majority is warranted. Thus, Talikka’s
misconduct must be considered more fully.
                          Count One—Michelle Topazio
       {¶ 26} Michelle Topazio hired Talikka on June 4, 2008, to appeal a May
13, 2008 judgment entry in which the Cuyahoga County Juvenile Court awarded
custody of her minor children to their biological father. On June 5, 2008, Topazio
gave Talikka a $15,000 flat fee by credit-card payment. Talikka deposited the
funds into his First Merit business operating account, but did not give Topazio a
written fee agreement.
       {¶ 27} On June 16, 2008, Talikka filed a notice of appeal on Topazio’s
behalf with the Eighth District, but he never filed an appellate brief as required by
the Ohio Rules of Appellate Procedure. On September 29, 2008, the appellate
court, sua sponte, dismissed Topazio’s appeal due to Talikka’s failure to
prosecute the appeal. Despite the gravity of the case, Talikka did not advise
Topazio that her appeal had been dismissed.
       {¶ 28} On October 15, 2008, Topazio terminated Talikka’s representation
and requested a refund of the unused portion of the retainer. Two days later,
Topazio sent Talikka an e-mail requesting that he refund her $13,500 in unearned
fees. Talikka did not send Topazio a bill for his legal services. Instead, he




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                              SUPREME COURT OF OHIO




determined that after expenses, he owed Topazio only $10,000 in unearned fees.
Despite that determination, Talikka did not return any of the funds to Topazio.
       {¶ 29} On March 6, 2009, after learning that Talikka possessed Topazio’s
funds, the guardian ad litem (“GAL”) in the underlying juvenile court case moved
for garnishment in the Lake County Court of Common Pleas to force Talikka to
release the funds for unpaid GAL fees. On April 17, 2009, the trial court filed an
entry ordering Talikka to immediately deposit Topazio’s $10,000 with the clerk of
courts. On May 15, 2009, Talikka deposited the $10,000 using a check drawn on
his First Merit IOLTA account. However, Topazio’s funds were not in Talikka’s
First Merit IOLTA account.        The funds in the First Merit IOLTA account
belonged to other clients.
       {¶ 30} On June 25, 2009, Topazio filed a grievance against Talikka for his
failure to file a brief in her appeal, communicate with her about the case, or
refund the remainder of her retainer. Topazio averred that after months of trying
to contact Talikka, Talikka finally contacted her new counsel, R. Russell Kubyn,
on June 3, 2009. Talikka informed Kubyn that he had no response to Topazio’s
questions and that he would respond only if he was sued.
                             Count Two—Jeffrey Homkes
       {¶ 31} In 2008, Jeffrey Homkes hired Talikka to represent him in a
personal-injury case through a one-third contingency-fee agreement. In April
2009, Talikka settled Homkes’s claim for $33,000.
       {¶ 32} On April 16, 2009, Talikka’s First Merit IOLTA account balance
was $792.66. On April 28, 2009, Talikka deposited a $1,500 retainer from Esther
Nash into his First Merit IOLTA account, thereby increasing the account balance
to $2,292.66. Talikka deposited Homkes’s $33,000 settlement check into his First
Merit IOLTA account on April 30, 2009, thereby increasing the account balance
to $35,292.66. On May 1, 2009, Talikka disbursed $1,225.25 to a person named




                                        10
                                 January Term, 2013




Michael Yates, reducing the First Merit IOLTA balance to $34,067.41. At that
time, none of the funds in Talikka’s IOLTA account belonged to Yates.
       {¶ 33} On May 6, 2009, Talikka disbursed $11,325.41 to Homkes. And
on May 7, 2009, Talikka withdrew his one-third fee of $11,000 from Homkes’s
settlement funds, leaving the balance at $11,742.41, $10,674.59 of which
belonged to Homkes. Talikka did not have Homkes sign a closing statement.
       {¶ 34} From May 8, 2009, to May 15, 2009, Talikka made a number of
other deposits and withdrawals from his First Merit IOLTA account that were
unrelated to the Homkes case.       After those transactions were complete, the
IOLTA account balance was $17,800.50. On May 15, 2009, Talikka wrote a
check for $10,000 from the IOLTA account to the clerk of courts on Topazio’s
behalf, leaving a $7,800.50 balance. As a result, in addition to failing to timely
distribute all of the settlement funds to Homkes, Talikka also used at least
$2,874.09 of the $10,674.59 belonging to Homkes to satisfy the Lake County
court order in Topazio’s case.
       {¶ 35} On May 18, 2009, Talikka continued to misuse Homkes’s funds by
writing an IOLTA check for $5,500 to himself, thereby reducing the First Merit
IOLTA account balance to $2,300.50.
       {¶ 36} On January 8, 2010, Talikka closed his First Merit IOLTA account
and transferred $9,478.89 to his Northwest Savings Bank IOLTA account. On
January 12, 2010, Talikka disbursed $2,000 from his Northwest IOLTA account
to AR Systems on Homkes’s behalf, which reduced the amount he owed Homkes
to $8,674.59.
       {¶ 37} But Talikka never disbursed the remaining $8,674.59 to his client.
And since February 1, 2007, he has neither maintained a client ledger of
Homkes’s funds contained in his IOLTA accounts, nor has he reconciled his
IOLTA account on a monthly basis.




                                         11
                             SUPREME COURT OF OHIO




                         Count Three—Theresa Waclawski
       {¶ 38} In June 2008, Theresa Waclawski hired Talikka on a contingency-
fee basis to handle her personal-injury claim against Cheryl Lefelhoc.
       {¶ 39} On November 28, 2008, Talikka filed a civil lawsuit on
Waclawski’s behalf against Lefelhoc in the Lake County Court of Common Pleas.
On October 14, 2009, despite the fact that Waclawski had not yet paid him
anything, Talikka disbursed $1,200 from his First Merit IOLTA account to Great
Lakes Pain Management on Waclawski’s behalf.
       {¶ 40} A few weeks later, Talikka settled the case for $70,000. A $70,000
settlement check was issued to Talikka and made payable to him and Waclawski.
       {¶ 41} As of November 8, 2009, Talikka’s First Merit IOLTA account
balance was $199.31. The next day, Talikka deposited Waclawski’s settlement
check into his First Merit IOLTA account, thereby increasing the IOLTA account
balance to $70,199.31. On November 18, 2009, Talikka made two disbursements
on Waclawski’s behalf from his First Merit IOLTA account: $23,331.33 to
Waclawski and $23,331.33 to himself for attorney fees.            Talikka never had
Waclawski sign a closing statement for the $70,000 settlement.
       {¶ 42} Talikka did not deposit any of Waclawski’s funds into his
Northwest IOLTA account, but in December 2009, Talikka used funds from his
Northwest IOLTA account to make multiple disbursements, totaling several
thousand dollars, on Waclawski’s behalf:          $365 to Litigation Management;
$257.25 to Susan Goodell & Associates; $276.90 to Parise & Associates;
$2,068.36 to Mentor Way Nursing; and $861.48 to Renillo Record Services.
       {¶ 43} By December 28, 2009, Talikka had disbursed $51,696.403 of the
$70,000, retaining $18,303.60 belonging to Waclawski in Talikka’s possession.



3. On June 29, 2009, Talikka disbursed $4.75 to the Willoughby Municipal Court from his
business checking account on Waclawski’s behalf.




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                                  January Term, 2013




           {¶ 44} Between November 19, 2009, and January 8, 2010, Talikka’s First
Merit IOLTA account balance dropped to $9,478.89, indicating that Talikka had
misappropriated at least $8,824.71 of Waclawski’s settlement funds during that
period. On January 8, 2010, Talikka closed his First Merit IOLTA account and
transferred the remaining $9,478.89 to his Northwest IOLTA account.
           {¶ 45} On April 27, 2010, Waclawski filed a grievance with relator
seeking the remainder of her settlement proceeds from Talikka. In her grievance,
Waclawski alleged that Talikka not only wrongly held her money, but that he was
unprofessional and “constantly used foul language towards” her.             As one
example, she described an incident in which Talikka took her and her daughter
into a stairwell at the courthouse to discuss a settlement offer from the insurance
company. When Waclawski rejected the offer, Talikka became irate, swore at
her, and told her she was “stupid.” When Talikka later returned to the stairwell
with the insurance company’s higher offer, Waclawski rejected it. She alleged
that at that point Talikka lunged at her with his teeth clenched and she feared for
her life because she thought he was going to shove her down the stairs.
           {¶ 46} Waclawski alleged that when Talikka returned with a third offer,
which Waclawski felt was still low, Talikka told Waclawski and her daughter that
he would not take any fees from the $10,000 the insurance company had paid
earlier and that she would have to pay only 5 to 10 percent of her medical bills.
Waclawski ultimately accepted the offer, but she felt that Talikka had coerced her
into it.
           {¶ 47} Waclawski also alleged in her grievance that a few days later, one
of Talikka’s staff members arrived at her home with the insurance check for her
signature but no settlement statement.         Waclawski refused to sign anything
without a breakdown of the expenses. The staff member left; Talikka then called
Waclawski and told her to sign the check so that he could get it to the bank by the
end of the day. She did so, again feeling coerced, without a settlement statement.



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       {¶ 48} On April 28, 2010, the day after Waclawski filed the grievance,
Talikka disbursed an additional $7,910.01 to her from his Northwest IOLTA
account, leaving an outstanding balance of $10,393.59, all of which belonged to
Waclawski.    On June 22, 2010, Talikka disbursed $10,425.92 to the Ohio
Department of Job and Family Services (“ODJFS”) on Waclawski’s behalf from
his Northwest IOLTA account. Because by that time Talikka had only $1,568.88
of Waclawski’s funds remaining in his Northwest IOLTA account, Talikka used
$8,857.04 of other client funds in that account to cover the payment to ODJFS. In
other words, Talikka misused other clients’ funds to repay the funds belonging to
Waclawski because he had used her funds for other purposes.
       {¶ 49} Since February 1, 2007, Talikka has neither maintained a client
ledger of Waclawski’s funds contained in his IOLTA accounts, nor reconciled his
IOLTA account on a monthly basis.
                          Count Four—Dana Kooyman
       {¶ 50} Early in 2008, Dana Kooyman contacted Talikka to represent her in
a divorce action. Talikka told Kooyman that he would charge an hourly rate for
the representation and requested a $2,000 retainer. Kooyman paid Talikka the
$2,000 retainer in cash but Talikka did not give her a receipt for the payment.
Kooyman neither signed nor received a written fee agreement.
       {¶ 51} On May 6, 2008, Talikka filed a complaint for divorce on
Kooyman’s behalf in the Lake County Court of Common Pleas. During the
representation, Kooyman paid Talikka an additional $2,000 in cash and Talikka
again failed to give her a receipt for the payment. In her grievance, Kooyman
alleged that she gave Talikka another $1,500 and was again given no receipt.
       {¶ 52} At the conclusion of the divorce proceedings, the court awarded
Kooyman one-half of her ex-husband’s 401K account. Shortly after July 9, 2009,
Talikka received a $25,045.83 check made payable to Kooyman that represented
half the proceeds of the 401K account. On July 13, 2009, Talikka’s First Merit




                                       14
                              January Term, 2013




IOLTA account balance was $1,011.06. The following day, Talikka deposited
Kooyman’s check into his First Merit IOLTA account, thereby increasing the
IOLTA account balance to $26,056.89.
       {¶ 53} On July 15, 2009, Talikka withdrew $1,100 from his First Merit
IOLTA account for a disbursement unrelated to Kooyman’s case, thereby
reducing that IOLTA account balance to $24,956.89. On July 17, 2009, Talikka
withdrew $14,500 from his First Merit IOLTA account for attorney fees in
Kooyman’s case. That same day, Talikka deposited $3,000 into his First Merit
IOLTA account, thereby increasing the IOLTA balance to $13,456.89, of which
$11,556.89 belonged to Kooyman.
       {¶ 54} Between July 17, 2009, and July 23, 2009, Talikka made multiple
deposits to and disbursements from the First Merit IOLTA account: a $2,500
deposit from Ralph Smith; a $260 disbursement to the Geauga County Clerk of
Courts for filing fees; a $1,846.25 deposit from Richard Hennig Co., L.P.A.; a
$771.08 disbursement to Kobria; and a $6,000 deposit of a settlement check for
Debra and Eugene Daugherty. These transactions left a $22,772.06 balance in the
First Merit IOLTA account on July 23, 2009.
       {¶ 55} Kooyman went to Talikka’s office two or three times before
receiving her settlement proceeds.     Finally, despite having only $11,556.89
belonging to Kooyman in his First Merit IOLTA account, Talikka disbursed
$16,053.85 to Kooyman, an overpayment of $4,496.96. Talikka did not have
$4,496.96 of personal funds in his First Merit IOLTA account when he paid
Kooyman on July 23, 2009. Rather, Talikka again misappropriated other clients’
funds to pay what he believed he owed Kooyman.
       {¶ 56} Talikka has failed to account for the other client funds he used to
overpay Kooyman. And since February 1, 2007, he has neither maintained a
client ledger of Kooyman’s funds contained in his IOLTA accounts, nor
reconciled his IOLTA account on a monthly basis.



                                       15
                             SUPREME COURT OF OHIO




                            Count Five—Timothy Price
       {¶ 57} On April 6, 2009, Timothy Price hired Talikka to represent him in
an employment case in which Price alleged several federal and state-law claims
against Price’s employer, Avery Dennison, and its insurer, Aetna. Price signed a
one-third contingent-fee agreement with Talikka at the time of retention.
       {¶ 58} On December 21, 2009, Talikka filed suit on Price’s behalf against
Avery and Aetna in the Lake County Court of Common Pleas. On February 1,
2010, Avery and Aetna removed the case to the United States District Court for
the Northern District of Ohio. During the pendency of the federal case, Talikka
was Price’s counsel of record. At no time did Talikka move to withdraw as
counsel.
       {¶ 59} On March 19, 2010, Avery and Aetna filed a motion to dismiss.
Talikka did not file an opposition. Consequently, on April 29, 2010, the federal
court dismissed all of Price’s claims against Avery and all of his state-law claims
against Aetna.
       {¶ 60} On June 28, 2010, Aetna moved for judgment on the pleadings on
the remaining claims. Talikka again failed to file a response. Not surprisingly,
the federal court then dismissed the remaining claims against Aetna and ended the
suit. Talikka did not notify Price about the dismissal. Price first learned about the
dismissal in July 2011 when he contacted an attorney from another law firm.
       {¶ 61} On August 3, 2011, Price filed a grievance with the Lake County
Bar Association. He stated that Talikka did not keep him informed about the
status of his case and that he spent months trying to reach Talikka to no avail.
       {¶ 62} On September 19, 2011, Price filed a complaint against Talikka for
malpractice.
       {¶ 63} Subsequently, Price wrote a letter to the Lake County Bar
Association in which he stated that during the pretrial hearing on his malpractice
action, he “had an opportunity with [his] attorney present, to listen to Judge




                                         16
                                 January Term, 2013




Joseph Gibson” who “look[ed] at all angles of the case.” After the hearing, Price
“had a different outlook regarding the case” against Aetna, meaning that he felt
that “even if Mr. Talikka had responded [to the motion for summary judgment], it
would not have made a difference in the decision of the court.” However, Price
stated that he “was upset because * * * Talikka never told [him] what happened.”
Price and Talikka settled the matter, and Price dismissed the case with prejudice.
                             Count Six—Fran Cantrell
       {¶ 64} Fran Cantrell’s daughter, Florence Rowles, is incarcerated at the
Ohio Reformatory for Women. On October 15, 2009, Cantrell retained Talikka to
assist her in securing either judicial release for Rowles or her transfer to a prison
closer to Cantrell’s residence. Cantrell paid Talikka a $1,500 flat fee to perform
both services. By July 2011, approximately eight months after Cantrell hired
Talikka, he still had not filed the motion for judicial release or other pleading on
behalf of Cantrell and Rowles.
       {¶ 65} Cantrell discharged Talikka and hired attorney David Patterson,
who filed the motion for judicial release on July 15, 2011. Later that month,
attorney Patterson asked Talikka for a refund for Cantrell. On July 25, 2011,
Talikka sent Cantrell and attorney Patterson an invoice indicating that Talikka had
provided 8.2 hours of legal services and that no refund was due, despite his failure
to file a single pleading or complete his representation.
       {¶ 66} On July 21, 2011, Cantrell filed a grievance with relator in which
she alleged that she had waited three years for Talikka to get her daughter out of
jail, but nothing happened. Attorney Patterson had promptly contacted Rowles’s
social worker about judicial release, and when he did so, he learned that Talikka
had never contacted her about Rowles’s early release, but that someone had
contacted her in an effort to get Rowles transferred to Cleveland to be closer to
her family. Talikka failed to refund the unearned portion of his flat fee to Cantrell
and has never done so.



                                         17
                            SUPREME COURT OF OHIO




                         Count Seven—Diana Montagino
       {¶ 67} Diana Montagino was assaulted on May 2, 2008, at work at Perry
Middle School by a student who put ink in her coffee. More than a year later on
May 21, 2009, Montagino retained Talikka on a contingency-fee basis to handle
the related personal-injury case. Talikka mistakenly assured Montagino that the
statute of limitations was two years and indicated that he would file the complaint
before May 2010.
       {¶ 68} On April 30, 2010, Talikka filed a complaint on Montagino’s
behalf against the student, the student’s parents, the school, and the board of
education. On July 9, 2010, the school and the board of education moved for
judgment on the pleadings and, the following month, the student and parents
moved for summary judgment, arguing that Montagino’s claims were barred by
the applicable one-year statute of limitations. The court agreed and dismissed the
case in August 2010. Talikka received notice of the dismissal but did not inform
Montagino.
       {¶ 69} Beginning in May 2010, Montagino had attempted to contact
Talikka about her case by phone and letters with no success. On August 3, 2011,
having discovered that her case had been dismissed, Montagino sent Talikka a
letter requesting a meeting. At that meeting on September 15, 2011, Talikka told
her that her case had been dismissed as time-barred more than a year earlier.
       {¶ 70} Montagino believed that had her case been filed in a timely
manner, the outcome of the case might have been different. On September 19,
2011, she filed a complaint with the Lake County Bar Association against Talikka
in which she alleged that his approach to her case had been “unprofessional” and
“shoddy.”
                           Count Eight—John Ingram
       {¶ 71} At the beginning of December 2006, a vehicle driven by Emma
Crouser struck pedestrian John Ingram and seriously injured him.                Soon




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thereafter, Ingram hired Talikka to handle the related personal-injury case for a
one-third contingent fee. The agreement was memorialized in writing.
       {¶ 72} On November 17, 2008, Talikka filed a complaint against Crouser
in the Lake County Court of Common Pleas. In November 2009, Talikka settled
Ingram’s case for $300,000 and deposited the funds into his Northwest IOLTA
account on November 20, 2009. Talikka disbursed approximately $160,000 to
Ingram and collected $100,000 in attorney fees. After paying certain bills on
Ingram’s behalf, Talikka owed Ingram $39,196.70.
       {¶ 73} Since January 2011, despite having placed the entire proceeds of
the settlement into an IOLTA account in late 2009, and still owing Ingram tens of
thousands of dollars, Talikka has regularly maintained a balance in his Northwest
IOLTA account below the $39,196.70 to which Ingram is entitled. At points, that
account has reached as low as $664.47 (on May 26, 2011), showing that Talikka
misused Ingram’s funds.
       {¶ 74} Talikka never prepared a closing statement for Ingram. And since
February 1, 2007, Talikka has neither maintained a client ledger of Ingram’s
funds contained in his IOLTA accounts, nor reconciled his IOLTA account on a
monthly basis.
                     Stipulations and Board Recommendation
       {¶ 75} The parties stipulated that Talikka committed multiple violations of
12 Rules of Professional Conduct. Talikka’s misconduct, in the aggregate,
amounted to 38 violations and caused harm to eight clients.
       {¶ 76} The parties stipulated that Talikka committed three violations of
Prof.Cond.R. 1.3 in his handling of three separate client matters by failing to file
an appellate brief on behalf of Topazio, failing to respond to a motion to dismiss
and a motion for judgment on the pleadings in Price’s case, and failing to file a
motion for judicial release for Cantrell’s daughter. He failed to inform two clients
that their cases had been dismissed, thereby violating Prof.Cond.R. 1.4(a)(3), and



                                        19
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failed to refund the unearned portion of the retainers to two other clients when
they terminated his representation, in violation of Prof.Cond.R. 1.16(e). He also
failed to respond to reasonable requests for information from his client in one
matter in violation of Prof.Cond.R. 1.4(a)(4).
       {¶ 77} Talikka also engaged in misconduct related to the handling of
client funds. He failed to safeguard $10,000 belonging to Topazio in his client
trust account in violation of Prof.Cond.R. 1.15(a). He failed to maintain records
of the funds he should have been holding in his client trust account for five
separate clients in violation of Prof.Cond.R. 1.15(a)(2) and failed to reconcile his
trust account on a monthly basis for four clients in violation of Prof.Cond.R.
1.15(a)(5).
       {¶ 78} In three personal-injury matters for which Talikka was to receive a
contingency fee, he failed to have his clients sign closing statements in violation
of Prof.Cond.R. 1.5(c)(2) and failed to promptly distribute all of the funds that his
clients were entitled to receive in violation of Prof.Cond.R. 1.15(d).
       {¶ 79} Talikka also stipulated that his conduct in five of the charged
matters involved dishonesty, fraud, deceit, or misrepresentation in violation of
Prof.Cond.R. 8.4(c) and that his conduct with respect to one of those clients was
prejudicial to the administration of justice in violation of Prof.Cond.R. 8.4(d). He
also acknowledged that his conduct in all eight of the charged counts adversely
reflected on his fitness to practice law in violation of Prof.Cond.R. 8.4(h).
       {¶ 80} As aggravating factors, the parties stipulated that Talikka clearly
acted with a dishonest or selfish motive, demonstrated a pattern of misconduct,
committed multiple offenses, and failed to make restitution.             As mitigating
factors, the parties stipulated that Talikka had no prior disciplinary violations and
had shown evidence of good character.
       {¶ 81} Although not stipulated to, the panel found, by clear and
convincing evidence, that Talikka’s victims were vulnerable and harm to them




                                         20
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resulted. Given the scope and severity of Talikka’s misconduct, the majority’s
sanction improperly inflates the mitigating factors in this case while devaluing the
aggravating factors, including the breadth of harm to vulnerable victims.
                      The mitigating factors are outweighed
                            by the aggravating factors
       {¶ 82} In erroneously concluding that only a one-year period of probation
is warranted, the majority has lost sight 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.” Cleveland Metro. Bar Assn. v. Lockshin, 125 Ohio St.3d 529,
2010-Ohio-2207, 929 N.E.2d 1028, ¶ 42, citing Disciplinary Counsel v. Agopian,
112 Ohio St.3d 103, 2006-Ohio-6510, 858 N.E.2d 368.              Another important
purpose of the process “ ‘is to ascertain whether the conduct of the attorney
involved has demonstrated his unfitness to practice law, and if so to deprive him
of his previously acquired privilege to serve as an officer of the court.’ ” Ohio
State Bar Assn. v. Weaver, 41 Ohio St.2d 97, 100, 322 N.E.2d 665 (1975),
quoting In re Pennica, 36 N.J. 401, 418, 177 A.2d 721 (1962). We must always
be mindful of our obligations in these regards, but the majority fails to do so here.
       {¶ 83} The majority minimizes Talikka’s misconduct and contradicts itself
in describing the etiology of the misconduct. On one hand, the majority suggests
that the cause of Talikka’s misconduct can be attributed to the “series of serious
health problems” Talikka suffered during the time that he committed his
misconduct. Majority opinion at ¶ 20. But on the other hand, the majority relies
on Talikka’s stipulations in which he admits to acting with a dishonest or selfish
motive as the reasons for his misconduct. After reading the majority’s opinion,
the public—and the bar—will be confused as to whether Talikka committed his
misconduct because he was suffering from serious health issues or because he was
acting with a dishonest or selfish motive, as he so stipulated. It is difficult to



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reconcile the majority’s reasons for Talikka’s misconduct and thus difficult to
understand how the public will be protected from him absent a more stringent
sanction.
        {¶ 84} Despite not identifying the clear cause of Talikka’s misconduct, the
majority likens the present case to one that, upon examination, is inapposite:
Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297, 2011-Ohio-3181, 951
N.E.2d 775.
        {¶ 85} In Folwell, we agreed with the board’s finding that Folwell had
engaged in a pattern of misconduct involving multiple offenses and that he clearly
acted with a dishonest or selfish motive.      Id. at ¶ 33; see BCGD Proc.Reg.
10(B)(1)(b), (c), and (d). There, we imposed a two-year suspension with the
second year stayed on the same conditions as the majority imposes herein. Id. at
¶ 40.
        {¶ 86} In the case at bar, the cause of Talikka’s misconduct has not clearly
been identified.    The majority, however, equates Talikka’s misconduct to
Folwell’s and mechanically applies the same sanction.           In support of its
comparison, the majority asserts that the facts in Folwell support a conclusion that
the cases are substantially similar.     It is the differences that illustrate the
inapplicability of Folwell.
        {¶ 87} Folwell, an attorney with approximately 20 years of experience,
stipulated that he had engaged in a pattern of misconduct involving seven separate
client matters and that his conduct had adversely reflected on his fitness to
practice law. He failed to provide competent representation and failed to act with
reasonable diligence by failing to timely obtain probate court approval of a
personal-injury settlement for a client who was a minor, failed to maintain
separate client ledgers for the funds held in his client trust account, failed to
perform monthly reconciliations of his client trust account, and improperly used
client funds.




                                         22
                                January Term, 2013




       {¶ 88} Folwell also unreasonably delayed performing contracted work for
one client, led a client to believe that his case had been filed when it had not,
accepted retainers from other clients, failed to perform the contracted work, and
waited up to two and a half years after the clients terminated his representation to
refund the unearned portion of his fees.
       {¶ 89} As mitigating factors, the parties stipulated that Folwell had no
prior disciplinary record and had cooperated in the disciplinary proceedings. See
BCGD Proc.Reg. 10(B)(2)(a) and (d). We adopted the parties’ recommended
sanction of a two-year suspension with the second year stayed on the conditions
that Folwell commit no further misconduct and complete a one-year period of
monitored probation.
       {¶ 90} Significantly, however, in Folwell we did not find that the victims
were vulnerable, as the board has specifically done here. In the present case, the
panel made an independent finding of the additional aggravating factor that
Talikka’s “victims were vulnerable and harm to them resulted.”
       {¶ 91} The majority glosses over the fact that the board adopted the
panel’s finding by stating that “although Talikka has caused harm to vulnerable
clients, he has made restitution to those clients affected by his misconduct and
pledged to pay interest on the funds that he wrongfully held as soon as he is
presented with a calculation of the amounts due and owing.” Majority opinion at
¶ 21. The majority’s dismissive attitude toward the clients’ vulnerability does not
treat the misconduct with the gravity it deserves.
       {¶ 92} We have repeatedly held that “ ‘[t]he more vulnerable the client,
the heavier is the obligation upon the attorney not to exploit the situation for his
own advantage.’ ” Disciplinary Counsel v. Freeman, 106 Ohio St.3d 334, 2005-
Ohio-5142, 835 N.E.2d 26, ¶ 13, quoting Disciplinary Counsel v. Booher, 75
Ohio St.3d 509, 510, 664 N.E.2d 522 (1996); Disciplinary Counsel v. Moore, 101
Ohio St.3d 261, 2004-Ohio-734, 804 N.E.2d 423, ¶ 17. Talikka’s eight clients



                                           23
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relied on his legal advice and suffered harm because of his misconduct. He had
an obligation to assist each of them through the legal process, not to exploit their
naiveté.      The finding of client vulnerability alone makes the present case
distinguishable from Folwell.
           {¶ 93} Folwell is also distinguishable from the present case because at the
time the board issued its recommendation, Folwell had made restitution to his
clients.     The majority here erroneously affords great weight to the fact that
Talikka has made restitution and pledged to pay interest on the funds. But at the
time the board issued its recommended sanction in this case, Talikka had yet to
pay restitution or interest.      In fact, it was only after the board issued its
recommendation that Talikka made restitution to the affected clients. Even today,
however, Talikka has yet to pay any interest as required by both the panel and the
board.
           {¶ 94} The fact that Talikka did not make restitution until after the board
issued its recommendation is a second reason to treat Folwell as inapposite here.
But even more so, Talikka has yet to pay interest to his clients. This is a third and
significant distinction from Folwell:       Talikka was not willing to rectify his
misconduct until ordered to do so, and that distinction warrants a different
sanction than that imposed on Folwell.
           {¶ 95} Especially disturbing is the majority’s heavy reliance on certain
selective parts of the report by Robert Kaplan, Ph.D., who conducted a
psychological evaluation of Talikka. The majority gives credence to Talikka’s
voluntary participation in the evaluation and Talikka’s decision to stipulate to the
facts as well as to the charged misconduct. Moreover, the majority agrees with
Dr. Kaplan’s assessment that Talikka does not suffer from any mental-health or
substance-abuse disorder, but that he simply took on more work than he could
handle in order to maintain his self-esteem in the face of significant health
problems. The majority also agrees with Dr. Kaplan’s questionable conclusion




                                           24
                                January Term, 2013




that Talikka has accepted full responsibility for his conduct and has accepted the
limitations that his age and health impose on his work.
          {¶ 96} But the majority’s conclusions are drawn from a narrow
interpretation of Dr. Kaplan’s report that does not afford a full understanding of
the psychologist’s findings.     Most notably, the majority omits several key
statements from Dr. Kaplan’s report that directly rebut the conclusion that Talikka
has accepted full responsibility for his misconduct. First, Dr. Kaplan states in his
report that Talikka “feels that he was betrayed by some of his clients” and “[h]e
still feels angry” about the betrayal. The suggestion of “betrayal” by a client is
unfounded and unsupported here. How can a client betray an attorney who has
misappropriated funds, failed to perform agreed-upon work, or lied and ignored
the client’s needs?
          {¶ 97} Second, the report also contains a statement by Talikka that his
IOLTA account violations were attributable to errors made by his paralegal.
Though Talikka purportedly “feels he is entirely responsible for what happened,
since he made the choices that led to the errors,” he feels “angry” with the
paralegal.    At minimum, these statements demonstrate that Talikka has not
accepted full responsibility for his own failures as an attorney. Indeed, despite the
abundance of errors in the accounting of IOLTA funds, these statements show
that Talikka accepts responsibility with one hand, but with the other, he lays
blame elsewhere.
          {¶ 98} Furthermore, in reaching its conclusion that Talikka has accepted
full responsibility for his misconduct, the majority gives more weight to that
acceptance of responsibility than it does to the harm caused by Talikka’s
misconduct.      That acknowledgment cannot outweigh the harm Talikka has
caused.
          {¶ 99} In Toledo Bar Assn. v. Scott, 129 Ohio St.3d 479, 2011-Ohio-4185,
953 N.E.2d 831, ¶ 20, we held that although an attorney’s acknowledgment of the



                                         25
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wrongfulness of his conduct is an important consideration, it does not change the
deceitful nature of the misconduct and the fact that the attorney took advantage of
vulnerable clients. This holding is fitting herein. The majority should not be
myopically focused on the fact that Talikka stipulated to causing harm to eight
vulnerable clients and acting with a dishonest or selfish motive.        Talikka’s
stipulation does not erase the severity of his misconduct and the harm caused.
        {¶ 100} The majority also relies heavily on the five character letters from
judges who attest to his honesty, good character, professionalism, zealous
representation of his clients, and good reputation. I would afford very limited
weight to these attestations. The authors of those letters undoubtedly believe what
they write, but given the stipulations, we cannot ignore that their accolades to
Talikka’s honesty, professionalism, and zealous advocacy are not borne out in
these eight cases and in fact may be outdated. Clients reported, and Talikka
agreed, that he wrongfully kept their money and failed to communicate with them.
One client reported that she felt physically threatened by Talikka after she
disagreed with him. The misconduct at issue here cannot be overlooked entirely
because of Talikka’s conduct in other cases, which evidently gave rise to the
character letters.
        {¶ 101} The majority imposes a two-year suspension from the practice of
law in Ohio with the second year stayed on certain conditions, as permitted by
Gov. Bar R. V(9)(B). But Talikka’s misconduct warrants a period of indefinite
suspension with reinstatement contingent upon his payment in full of the interest
owed to his clients and upon his entry into a contract with the Ohio Lawyers
Assistance Program and compliance with its terms. Those conditions are not
excessive given the nature and scope of the misconduct here and can only help
Talikka regain proper control over his practice while protecting the public from
any additional harm. It is baffling that despite the loss of tens of thousands of
dollars belonging to his clients, repeated neglect of clients’ cases, and repeated




                                        26
                                January Term, 2013




incidents showing disrespect to clients and the oath Talikka took as an attorney,
the majority fails to impose them in this case. I must therefore dissent.
       LANZINGER and FRENCH, JJ., concur in the foregoing opinion.
                              __________________
       Jonathan E. Coughlan, Disciplinary Counsel, and Philip A. King, Assistant
Disciplinary Counsel, for relator.
       Koblentz & Penvose, L.L.C., Richard S. Koblentz, Bryan L. Penvose, and
Kevin R. Marchaza, for respondent.
                            ______________________




                                         27
