[Cite as Ohio State Bar Assn. v. Peskin, 125 Ohio St.3d 244, 2010-Ohio-1811.]




                     OHIO STATE BAR ASSOCIATION v. PESKIN.
[Cite as Ohio State Bar Assn. v. Peskin, 125 Ohio St.3d 244, 2010-Ohio-1811.]
Attorney misconduct — Conduct prejudicial to the administration of justice —
        Conduct adversely reflecting on attorney’s fitness to practice law — Two-
        year suspension with 18 months stayed on conditions, including probation.
 (No. 2009-2009 ⎯ Submitted December 16, 2009 ⎯ Decided April 29, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 08-050.
                                  __________________
        Per Curiam.
        {¶ 1} Respondent, Lawrence Frederick Peskin of Cleveland, Ohio,
Attorney Registration No. 0059391, was admitted to the practice of law in Ohio in
1992.    For violations of the Rules of Professional Conduct arising from his
possessing and using crack cocaine, the Board of Commissioners on Grievances
and Discipline recommends that we impose a two-year suspension, stayed upon
conditions.    We accept the board’s findings of misconduct.                    However, we
conclude that respondent’s conduct, his failure to acknowledge the seriousness of
his misconduct, and his obvious resentment over the consequences of his
misconduct warrant an actual suspension from the practice of law. Accordingly,
we impose a two-year suspension with 18 months stayed upon the conditions
recommended by the board.
                                       Misconduct
        {¶ 2} Relator, Ohio State Bar Association, charged respondent with
professional misconduct in violation of Prof.Cond.R. 8.4(d) (prohibiting conduct
that is prejudicial to the administration of justice) and 8.4(h) (prohibiting any
conduct that adversely reflects on the lawyer’s fitness to practice law).
                                SUPREME COURT OF OHIO




       {¶ 3} The parties stipulate that on June 29, 2007, respondent was
arrested in Brookpark, Ohio, and was subsequently indicted by a Cuyahoga
County grand jury for possession of crack cocaine and resisting arrest.
Respondent pleaded guilty to both charges and was placed in and successfully
completed an intervention-in-lieu-of-conviction program that resulted in dismissal
of all charges against him.
       {¶ 4} At the panel hearing, respondent testified that he obtained a
doctorate in psychology and worked as a licensed psychologist for approximately
eight years before attending law school.       At the time of his arrest in 2007,
respondent was a lead trial attorney in large medical-malpractice actions.
       {¶ 5} Respondent admitted he had used marijuana occasionally since age
15.   After an acquaintance offered him crack cocaine in 2004, he used it
approximately one weekend a month—15 to 20 times—over an 18-month period.
He attributed his cocaine use to a number of personal difficulties including his ex-
wife’s terminal cancer, his teenage daughter’s difficulty handling that diagnosis,
and his second wife’s serious illnesses.
       {¶ 6} Respondent claimed that he was never impaired while working and
that his drug use did not interfere with the representation of his clients. But his
admitted use of marijuana and purchase of crack cocaine just days before he filed
an important motion demonstrate that his conduct did place his clients at risk.
Respondent criticized his former employer for notifying his clients of his arrest
and implied that his conduct was not serious enough to warrant the subsequent
termination of his employment. Instead, he attributed his firing to a personality
clash with a majority partner and the firm’s desire to retain his share of the fees
for two very lucrative cases.
       {¶ 7} Respondent testified that as part of his intervention-in-lieu-of-
conviction program, he reported to a probation officer each month for one year
and submitted to random drug testing and a substance-abuse assessment. While




                                           2
                                January Term, 2010




he claimed that both that assessment and a separate assessment completed by Dr.
Lee Horowitz determined that he did not have a substance-abuse problem, he did
not submit any documents to support this contention.
       {¶ 8} After his arrest, respondent voluntarily contacted the Ohio
Lawyers Assistance Program (“OLAP”) and began to attend Alcoholics
Anonymous (“AA”) meetings. After approximately one year, he separated from
OLAP under less than amicable circumstances. He also stopped attending AA
meetings, claiming that the program is outdated and ineffective.         He further
rejected AA’s focus upon submission to a higher power and its requirement that
participants admit that they have a substance-abuse problem, which he does not
believe he has.
       {¶ 9} As part of the disciplinary investigation, respondent submitted to a
psychological evaluation with Arthur L. Rosenbaum, M.D.               Although Dr.
Rosenbaum did not specifically diagnose an addiction to illegal substances, he did
report that respondent has used cocaine and marijuana at various times throughout
his life and remains at risk to return to such conduct.            Specifically, Dr.
Rosenbaum stated: “Mr. Peskin has been a user of forbidden substances most of
his life. His use has been minimal, according to him. Although his tendency
observed several times in this session and detailed above, to attribute cause for his
actions to external circumstances and to others and emphasis of his role as victim
are important clues to his character composition, I do not believe on the basis of
the information available to me that his drug use, history of failed relationships in
his personal and professional lives or personality characteristics indicated by his
denial and the evidence that he is able to ignore the dictates of his conscience rise
to the level of a diagnosable mental illness. There is no information available to
me that his work with clients has been compromised. I do believe that he will be
best served if there is ongoing monitoring of his sobriety for an indefinite period.




                                         3
                             SUPREME COURT OF OHIO




Any route that leads to forbidden pleasure once opened remains available and by
history he is a person who has been vulnerable.”
       {¶ 10} The parties stipulate, and we agree, that clear and convincing
evidence establishes that respondent’s conduct violates Prof.Cond.R. 8.4(d) and
(h) as charged.
                                     Sanction
       {¶ 11} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated 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. In making a final determination, we also
weigh evidence of the aggravating and mitigating factors listed in Section 10(B)
of the Rules and Regulations Governing Procedure on Complaints and Hearings
Before the Board of Commissioners on Grievances and Discipline (“BCGD
Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio-
5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary case is unique, we are not
limited to the factors specified in the rule but may take into account “all relevant
factors” in determining what sanction to impose. BCGD Proc.Reg. 10(B).
       {¶ 12} The parties did not stipulate to any mitigating or aggravating
factors. Nonetheless, in mitigation, the board noted that respondent does not have
a prior disciplinary record and that his conduct was not driven by dishonest or
selfish motives. BCGD Proc.Reg. 10(B)(2)(a) and (b). The board also considered
respondent’s full cooperation in the disciplinary proceeding as well as six
character-reference letters, all of which endorsed his ability to provide quality
legal representation and recommended that he be permitted to continue practicing
law. BCGD Proc.Reg. 10(B)(2)(d) and (e).
       {¶ 13} As for aggravating factors, we find that respondent terminated his
participation in OLAP.        Moreover, his testimony at the panel hearing
demonstrates that he fails to appreciate the seriousness of his conduct and the




                                         4
                               January Term, 2010




substantial risk of harm to which he subjected his clients. And although he claims
to be remorseful, he resents that he has been publicly humiliated, has lost his job,
and had disciplinary proceedings brought against him, while others, who he
claims have had more significant addictions and more egregious criminal records,
have been permitted to deal with their misconduct in private.
       {¶ 14} The parties jointly recommended that the board impose a one-year
suspension of respondent’s license, stayed subject to numerous detailed
conditions. Finding that the proposed sanction was cumbersome and ambiguous,
the panel and the board rejected it and now recommend that we impose a two-year
suspension from the practice of law, all stayed upon the following conditions:
       {¶ 15} “1. Respondent remain drug-free and alcohol-free and commit no
further criminal violations;
       {¶ 16} “2. Respondent enter into a two-year drug-related contract with
OLAP and submit to random drug screens, at his own expense, on a periodic basis
as determined by OLAP. Respondent shall not be required to participate in
OLAP’s 12-step meetings.        Instead Respondent shall meet with an OLAP
counselor on a periodic basis as determined by OLAP so that it may monitor his
drug screens and his compliance with condition #3 below;
       {¶ 17} “3. Respondent obtain mental health/substance abuse counseling,
at his own expense, with a qualified psychologist/psychiatrist on a regular basis as
determined by that treating professional. Respondent shall provide any such
professional a copy of Dr. Rosenbaum’s report in this matter along with a copy of
the Supreme Court’s opinion in this matter. Respondent shall notify OLAP of the
name and address of the mental health/substance abuse counselor. Upon request
by OLAP, respondent’s mental health/substance abuse counselor shall send
periodic reports to OLAP confirming Respondent’s ongoing treatment.
       {¶ 18} “4. Respondent submit to OLAP and to his mental health/substance
abuse counselor the name and dosage of all prescription medications as well as



                                         5
                            SUPREME COURT OF OHIO




the name and address of the prescribing physician. Respondent shall waive the
doctor/patient privilege with respect to any such prescribing physician for the
duration of this two year stayed suspension.
       {¶ 19} “5. Respondent shall timely communicate any changes in his
prescription medications to OLAP and his mental health/substance abuse
counselor.
       {¶ 20} “6. Respondent submit, within one year of the release of the
Supreme Court’s opinion in this mater, a qualified health-care professional’s
certification that he has successfully completed a substance abuse treatment
program and is, in that professional’s opinion to a reasonable degree of medical
certainty, able to practice law in a competent, ethical, and professional manner.
Upon submission of such a report condition [#]3 shall be deemed satisfied.
       {¶ 21} “7. Respondent shall commit no further misconduct.
       {¶ 22} “8. A monitoring attorney shall be appointed by Relator [pursuant
to Gov.Bar R. V(9)] to monitor Respondent’s compliance with conditions 1-7 and
if Respondent fails to comply with the terms of conditions 1-7, he shall serve the
entire two-year suspension from the practice of law.”
       {¶ 23} In support of their recommendation, the panel and board cite our
decision in Disciplinary Counsel v. May, 106 Ohio St.3d 385, 2005-Ohio-5320,
835 N.E.2d 372, imposing a two-year suspension, stayed upon conditions, for an
attorney who had used forged prescriptions to obtain Vicodin. Id. at ¶ 3-4. Like
respondent, May had successfully completed a treatment-in-lieu-of-conviction
program that resulted in the dismissal of the criminal charges against him. Id.
       {¶ 24} While our decision in May is instructive, it is factually
distinguishable from the present case because in May, the respondent’s chemical
dependency qualified as a mitigating factor pursuant to BCGD Proc.Reg.
10(B)(2)(g)(i) through (iv). Id. at ¶ 8. Here, while the record contains substantial
evidence regarding respondent’s use of illegal substances, Dr. Rosenbaum’s




                                         6
                               January Term, 2010




carefully worded report does not specifically diagnose a chemical dependency or
state to a reasonable degree of medical certainty that respondent is able to engage
in the competent, ethical, and professional practice of law. In the absence of this
mitigating factor and in light of respondent’s failure to acknowledge the
seriousness of his misconduct and his obvious resentment over the consequences
of his misconduct, we conclude that an actual suspension from the practice of law
is necessary to protect the public from further misconduct.
       {¶ 25} Accordingly, we suspend respondent from the practice of law in
Ohio for two years, with 18 months stayed on the conditions recommended by the
board, including probation. If respondent fails to comply with the conditions of
the stay or probation, the stay will be lifted, and respondent will serve the full
two-year suspension from practice. Costs are taxed to respondent.
                                                              Judgment accordingly.
       PFEIFER,    ACTING    C.J.,   and       LUNDBERG   STRATTON,    O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
       The late CHIEF JUSTICE THOMAS J. MOYER did not participate in the
decision in this case.
                              __________________
       Mitchell, Catalano & Boda Co. and William Mann; and Eugene Whetzel,
Bar Counsel, for relator.
       Steven D. Bell Co., L.P.A., and Steven D. Bell, for respondent.
                              __________________




                                           7
