[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cincinnati Bar Assn. v. Fernandez, Slip Opinion No. 2018-Ohio-3828.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2018-OHIO-3828
                 CINCINNATI BAR ASSOCIATION v. FERNANDEZ.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Cincinnati Bar Assn. v. Fernandez, Slip Opinion No.
                                   2018-Ohio-3828.]
Attorneys—Misconduct—Multiple violations of the Rules of Professional
        Conduct—Respondent’s law license indefinitely suspended.
 (No. 2017-1409—Submitted January 23, 2018—Decided September 25, 2018.)
   ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
                                 Court, No. 2016-041.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Justin Enrique Fernandez, of Cincinnati, Ohio, Attorney
Registration No. 0062974, was admitted to the practice of law in Ohio in 1994. On
September 1, 2016, we publicly reprimanded Fernandez for his failure to provide
sufficient information to his client to permit her to make informed decisions about
                                 SUPREME COURT OF OHIO




his plans to achieve her legal objectives. Cincinnati Bar Assn. v. Fernandez, 147
Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724.
        {¶ 2} In a formal complaint certified to the Board of Professional Conduct
on October 4, 2016, relator, Cincinnati Bar Association, charged Fernandez with
multiple violations of the Rules of Professional Conduct arising from his neglect of
three client matters, his retention of fees paid by those clients, the overdraft of his
client trust account, and his failure to respond to the ensuing disciplinary
investigations.
        {¶ 3} The parties submitted stipulations of fact and misconduct, aggravating
and mitigating factors, and three exhibits. Fernandez was the only witness to testify
at his hearing before a panel of the board. The panel issued a report in which it
made findings of fact, found that Fernandez had committed all but one of the
alleged violations, and recommended that he be indefinitely suspended from the
practice of law, with certain conditions placed on his reinstatement.1 The board
adopted the panel’s findings and recommended sanction.
        {¶ 4} Fernandez objects and urges us to reject the board’s finding that he
acted with a dishonest or selfish motive. Consistent with the recommendation made
by relator, he asks us to attribute mitigating effect to his intermittent homelessness
and unspecified mental disorders and suspend him from the practice of law for one
year.
        {¶ 5} Having reviewed the record, we adopt the board’s findings of fact and
misconduct, aggravating and mitigating factors, and recommended sanction.
Therefore, we indefinitely suspend Fernandez from the practice of law in Ohio and
impose conditions on his reinstatement.




1. The panel unanimously dismissed an alleged violation of Prof.Cond.R. 5.3(b) (requiring a lawyer
who employs and has direct supervisory authority over a nonlawyer to make reasonable efforts to
ensure that the person’s conduct is compatible with the professional obligations of the lawyer).




                                                2
                                January Term, 2018




                                   Misconduct
       {¶ 6} Between April and June 2015, Fernandez agreed to assist Cleora Jean
Smith and Betty Smith Carpenter with the settlement of their debts and to file a
Chapter 7 bankruptcy on behalf of Eddie and Amie Foster. As in Fernandez’s prior
disciplinary case, these clients were referred to him by Morgan Drexen, Inc., a now
defunct California company that provided paralegal and paraprofessional services
to his law practice. Fernandez stipulated that Morgan Drexen assisted him in
performing “non-formal debt resolution” for his clients.
       {¶ 7} In April 2015, the United States District Court for the Central District
of California enjoined Morgan Drexen’s business operations and froze its assets.
Soon thereafter, Morgan Drexen filed for bankruptcy and went out of business. In
July 2015, Morgan Drexen’s clients were sent letters informing them that Morgan
Drexen had filed for bankruptcy and that the attorney who represented them was
no longer affiliated with the company. The letters stated, “All administrative and
support services will now be provided directly by employees of the law firm you
hired to represent you” and “[r]est assured, none of your money is affected by
Morgan Drexen’s bankruptcy because your lawyers, not Morgan Drexen are
responsible for [electronically transferring funds from] your account and holding
your money in trust.” Those letters were sent on the letterhead of Howard Law,
P.C., which bore the California mailing address that Morgan Drexen had used for
Fernandez.
       {¶ 8} The board found that Fernandez had received $926 from Cleora Jean
Smith, $2,618 from Betty Smith Carpenter, and $900 from Eddie and Amie Foster
to secure his legal services.    Fernandez failed to respond to their efforts to
communicate with him, and he confirmed that his voicemail prompt instructed his
clients to leave no more than one message per week due to his work volume. Not
only did he fail to perform any legal services for these three clients, he failed to




                                         3
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advise the Fosters that they were ineligible to file bankruptcy because their previous
one was so recent. Moreover, he failed to refund any money to these four clients.
       {¶ 9} On October 19, 2015, relator received a notice from U.S. Bank that
one of Fernandez’s client trust accounts was overdrawn. In response to that notice
and several client grievances, relator sent multiple letters of inquiry to Fernandez
by regular and certified mail. Fernandez did not respond to relator’s requests for
information.
       {¶ 10} The parties stipulated and the board found that Fernandez’s conduct
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with the
client about the means by which the client’s objectives are to be accomplished),
1.4(b) (requiring a lawyer to explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation), 1.15(d)
(requiring a lawyer to promptly deliver funds or other property that the client is
entitled to receive), 2.1 (requiring a lawyer to exercise independent judgment and
render candid advice while representing the lawyer’s clients), and 8.1(b)
(prohibiting a lawyer from knowingly failing to respond to a demand for
information from a disciplinary authority during an investigation). In addition, the
parties stipulated and the board found that Fernandez’s conduct with respect to his
client trust account violated Prof.Cond.R. 1.15(a) (requiring a lawyer to hold funds
belonging to a client or third party in a client trust account separate from his own
property and to maintain certain records regarding the funds held in that account)
and that his failure to respond to relator’s inquiries regarding the overdraft of his
client trust account constituted an additional violation of Prof.Cond.R. 8.1(b).
       {¶ 11} We accept the board’s findings of fact and misconduct.
                             Recommended Sanction
       {¶ 12} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the




                                          4
                                January Term, 2018




aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
       {¶ 13} The parties stipulated and the board found that four aggravating
factors are present—that Fernandez has a prior disciplinary record, engaged in a
pattern of misconduct, committed multiple offenses, and caused harm to his clients,
who the board found were particularly vulnerable and in dire need of protection
from creditors. See Gov.Bar R. V(13)(B)(1), (3), (4), (8).
       {¶ 14} The board rejected the parties’ stipulation to two mitigating
factors—that Fernandez did not act with a selfish or dishonest motive and that he
practiced for more than 20 years without incident before being publicly
reprimanded in September 2016. Instead, it found as additional aggravating factors
that Fernandez had acted with a selfish and dishonest motive and “utterly failed to
respond or cooperate in any way with Relator’s investigation of this matter.” See
Gov.Bar R. V(13)(B)(2) and (5).         The board also expressed its view that
Fernandez’s apparent cooperation after relator filed its complaint should not
“ameliorate his willful refusal to respond” to relator’s investigation.
       {¶ 15} The board rejected relator’s recommendation that Fernandez be
suspended from the practice of law for one year as being “woefully inadequate to
protect the public.” Instead, the board found that Fernandez had accepted payments
from clients and had then failed to perform any work, conduct that is tantamount to
theft, for which the presumptive sanction is disbarment. See, e.g., Disciplinary
Counsel v. Horan, 123 Ohio St.3d 60, 2009-Ohio-4177, 914 N.E.2d 175, ¶ 22-23.
Alternatively, the board noted that this matter could also be viewed as one in which
an attorney had neglected entrusted legal matters and compounded that misconduct
by failing to cooperate in the ensuing disciplinary investigation. The presumptive
sanction for such offenses is an indefinite license suspension. See, e.g., Mahoning
Cty. Bar Assn. v. DiMartino, 145 Ohio St.3d 391, 2016-Ohio-536, 49 N.E.3d 1280,




                                          5
                                   SUPREME COURT OF OHIO




¶ 13-14; Disciplinary Counsel v. Golden, 97 Ohio St.3d 230, 2002-Ohio-5934, 778
N.E.2d 564, ¶ 23.
         {¶ 16} The board acknowledged Fernandez’s testimony that he suffered
from mental- health issues and that when he sought the assistance of the Ohio
Lawyers Assistance Program (“OLAP”), its professionals recommended that he
seek inpatient treatment for those conditions. While the board was sensitive to the
possibility that Fernandez may, in fact, be suffering from significant mental or
physical illnesses that could affect his ability to practice law in a competent, ethical,
and professional manner, it also noted that Fernandez chose not to obtain the
recommended treatment for financial reasons. In the absence of medical evidence
to substantiate Fernandez’s claimed mental disorder as a mitigating factor pursuant
to Gov.Bar R. V(13)(C)(7), the board found only that the possibility of its existence
rendered the sanction of permanent disbarment “too harsh.”2 The board therefore
recommended that we indefinitely suspend Fernandez from the practice of law,
order him to make restitution to the affected clients, and place certain conditions on
Fernandez’s reinstatement.
                        Objection to the Recommended Sanction
         {¶ 17} Fernandez objects to the board’s finding that he acted with a
dishonest and selfish motive and argues that the finding is contradicted by his own
testimony regarding his gambling addiction and other unspecified and untreated
mental disorders. He urges us to take judicial notice that a homeless attorney is
likely to have impaired judgment and that poor decision-making, not selfishness or
dishonesty, caused his behavior. Based on the remaining evidence, Fernandez




2. Gov.Bar R. V(13)(C)(7) provides that a mental-health disorder qualifies as a mitigating factor
when all the following factors exist: a diagnosis of a disorder by a qualified healthcare professional,
a determination that the disorder contributed to the respondent’s misconduct, a sustained period of
successful treatment, and a prognosis from a qualified healthcare professional that the attorney will
be able to return to the competent, ethical professional practice of law under specified conditions.




                                                  6
                               January Term, 2018




contends that the appropriate sanction for his misconduct is a one-year suspension.
We disagree.
        {¶ 18} Despite Fernandez’s claims, we find that the record amply
demonstrates that he acted with a selfish motive. His business relationship with
Morgan Drexen was driven to maximize profit with high-volume representation by
using paraprofessionals to perform much of the work with minimal attorney
oversight. Fernandez testified that after entering into a business relationship with
Morgan Drexen, he typically had between 100 and 400 clients—as a sole
practitioner. He relied on Morgan Drexen to communicate with his clients and
admitted that he had had had no personal contact with Cleora Jean Smith ten months
after he commenced her representation. He took his clients’ money, relied on
Morgan Drexen to do the work, and failed to adequately monitor the status of his
clients’ legal matters.
        {¶ 19} When asked if it was possible that there were other clients for whom
he charged fees that were not earned, Fernandez stated that he could not give a
definitive answer, explaining, “[O]ne of the weak points of the Morgan Drexen
interaction with attorneys was attorneys were heavily dependent on the software
and information systems and the paraprofessionals that they put together; and I
don’t—well, I haven’t ever really closely reviewed any of the software data to see
what was done and what wasn’t done.” Ultimately, he admitted that he had just
taken on too many clients.
        {¶ 20} Even more troubling than Fernandez’s lax oversight of his clients’
legal matters was his testimony regarding the management of the client-trust
account that Morgan Drexen had established for him. Although Fernandez claimed
that the account was his, when he was questioned about who had signature authority
for the account, he responded, “Well, I definitely should have had signature
authority, but I—I—I hope it doesn’t turn out that there’s other signature authority
there. It should have been mine alone.” When asked how he got paid, however,




                                         7
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Fernandez suggested that others had signature authority for the account, explaining
that when a client made a payment, his “paraprofessionals at Morgan Drexen should
put the money in the trust account; and then, as the fees are earned, withdraw that
money, put [it] in the general business account, and pay [him] from the general
business account.” But Fernandez ultimately admitted that he did not know how
the money moved because he never reviewed the banking records. His misconduct
is far more serious than his neglect of three client matters, his failure to refund
unearned fees, and his failure to maintain required trust-account records, because
he completely abdicated his duty to safeguard the client funds entrusted to his care.
       {¶ 21} At the panel hearing, Fernandez testified that he “was having some
mental health issues” and had lost his home to foreclosure the year before the
charged misconduct began. He has furthermore admitted that he has a gambling
problem and that his problems are not of a short-term or acute character, but rather
that they have resulted in “repeated bouts of homelessness.” He has presented no
evidence that those issues have been diagnosed by a qualified healthcare
professional, that they contributed to his misconduct, that he has achieved a
sustained period of successful treatment, or that he has received a prognosis from a
qualified healthcare professional that he will be able to return to the competent,
ethical professional practice of law. See Gov.Bar R. V(13)(C)(7). Furthermore, at
oral argument, Fernandez confirmed that he had received no treatment for those
issues—despite OLAP’s recommendation that he seek inpatient treatment—and he
suggested that if he were not living with a friend, he would still be homeless.
       {¶ 22} Despite Fernandez’s argument, we find that the record plainly
demonstrates that he acted with a selfish—though perhaps not dishonest—motive
and that his lax business practices, poor judgment, and mental-health issues present
an ongoing danger to the public. We are not unsympathetic to Fernandez’s plight,
but given the seriousness of his misconduct and the significant effects he admits
that his untreated mental-health issues have had on the management of his personal




                                         8
                                January Term, 2018




affairs, we are convinced that an indefinite suspension with conditions for
reinstatement, followed by a period of monitored probation once he is reinstated, is
the appropriate sanction in this case.
       {¶ 23} Accordingly, Justin Enrique Fernandez is indefinitely suspended
from the practice of law in Ohio, and any reinstatement shall be subject to the
following conditions: that he (1) submit proof, within 60 days of our order, that he
has made restitution of $926 to Cleora Jean Smith, $2,618 to Betty Smith Carpenter,
and $900 to Eddie and Amie Foster, (2) complete 12 hours of continuing legal
education with an emphasis on law-office and client trust-account management, in
addition to the requirements of Gov.Bar R. X, (3) submit to an evaluation by a
qualified healthcare professional to investigate the possible existence of a disorder
as defined in Gov.Bar R. V(35) and comply with any treatment recommendations
made as a result of that evaluation, and (4) show evidence that he has not engaged
in further misconduct. Upon reinstatement, Fernandez is to serve a two-year term
of monitored probation in accordance with Gov.Bar R. V(21). Costs are taxed to
Fernandez.
                                                              Judgment accordingly.
       O’CONNOR, C.J., and FRENCH, HALL, and FISCHER, JJ., concur.
       KENNEDY, J., dissents, with an opinion joined by O’DONNELL and DEWINE,
JJ.
       MICHAEL T. HALL, J., of the Second District Court of Appeals, sitting for
O’NEILL, J.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 24} Because the record does not support the findings of the Board of
Professional Conduct that respondent, Justin Fernandez, acted with a selfish motive
and deserved no credit for his cooperation in the disciplinary process, I dissent from
the majority’s decision to adopt its recommendation that we indefinitely suspend




                                          9
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him from the practice of law. Rather, in my view, the one-year suspension
recommended by relator, the Cincinnati Bar Association, is the appropriate sanction
in this case.
        {¶ 25} Fernandez contracted with a California company called Morgan
Drexen, Inc., to provide him with outsourced paraprofessional, intake, accounting,
and marketing and advertising services. Through this agreement, Morgan Drexen
referred prospective clients in Ohio seeking debt relief to Fernandez, and these
clients authorized direct deposits from their bank accounts to trust accounts opened
and managed by Morgan Drexen. Fernandez might have represented as many as
500 clients at one time, and monthly withdrawals were collected by Morgan Drexen
on Fernandez’s behalf until the client had paid a sufficient amount to offer a
settlement to the client’s creditors.     Morgan Drexen also paid fees to the
paraprofessionals and to Fernandez once they were earned.
        {¶ 26} The United States District Court for the Central District of California
enjoined Morgan Drexen’s business operations in April 2015 for charging an
unlawful upfront fee for debt-relief services and engaging in deceptive advertising.
Consumer Fin. Protection Bur. v. Morgan Drexen, Inc., 101 F.Supp.3d 856, 860-
861, 875 (C.D.Cal.2015).       According to the court, Morgan Drexen began
contracting with attorneys in 2010 to bundle its services with bankruptcy services
in order to continue collecting upfront fees; “Morgan Drexen received 85% to 95%
of the fees paid by the customer, and the attorneys received 5% to 15%.” Consumer
Fin. Protection Bur. v. Morgan Drexen, Inc., C.D.Cal. No. 8:13-cv 01267-JLS
JEM, 2015 WL 12712302, *1 (July 6, 2015), rev’d on other grounds by Consumer
Fin. Protection Bur. v. Howard Law, P.C., 671 Fed.Appx. 954 (9th Cir.2016).
        {¶ 27} Morgan Drexen filed for bankruptcy protection and went out of
business the following June, transferring its business-support services to Howard
Law, P.C. In July 2015, clients received letters on “Howard Law, P.C.” letterhead
informing them of Morgan Drexen’s bankruptcy and advising that their lawyers




                                          10
                                 January Term, 2018




were no longer affiliated with the company but would continue to represent them
and hold their money in trust. Fernandez then apparently received support services
from Howard Law.
         {¶ 28} In September 2015, the Cincinnati Bar Association filed an amended
complaint charging Fernandez with professional misconduct related to a client who
had contacted Morgan Drexen to settle her debts, and on September 1, 2016, we
issued a public reprimand based on his failure to have any direct communication
with her during the four months that he represented her. Cincinnati Bar Assn. v.
Fernandez, 147 Ohio St.3d 329, 2016-Ohio-5586, 65 N.E.3d 724, ¶ 1, 19.
         {¶ 29} On October 4, 2016, the Cincinnati Bar Association filed a second
complaint against Fernandez alleging similar misconduct involving three additional
clients who had been referred to him by Morgan Drexen. Although he failed to
respond to letters of inquiry from the relator, it is not disputed by the parties that he
cooperated in the disciplinary process after the investigation stage. Fernandez
stipulated to his misconduct, acknowledged his wrongdoing, and admitted that a
suspension would be appropriate. In addition, the parties stipulated to aggravating
factors (prior discipline, a pattern of misconduct, multiple offenses, and harm to the
victims) and mitigating factors (absence of a dishonest or selfish motive and the
lack of discipline from Fernandez’s licensure in 1994 to his public reprimand in
2016).
         {¶ 30} The board found that relator had proved violations of the
Professional Rules and the aggravating factors by clear and convincing evidence,
but it rejected the stipulation regarding mitigating factors and found three additional
aggravating factors: (1) “[t]he victims of Respondent’s misconduct were
particularly vulnerable because Respondent deprived these clients of financial
resources and neglected their needs at a time that they were in dire need of
assistance and protection from creditors,” (2) “Respondent utterly failed to respond
or cooperate in any way with Relator’s investigation of this matter,” and (3)




                                           11
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“Respondent acted with a selfish and dishonest motive.” It also indicated that
Fernandez’s conduct in taking fees for work that he failed to perform “is tantamount
to theft.”
        {¶ 31} Based on its findings, the board recommends that we indefinitely
suspend Fernandez from the practice of law in Ohio.
        {¶ 32} There is no doubt that Fernandez fell well short of the professional
standards demanded of all attorneys, and this case raises serious questions
regarding whether his relationship with Morgan Drexen and its paralegals complied
with Prof.Cond.R. 5.3 and 5.4 pertaining to an attorney’s association with
nonlawyers.    Nonetheless, the record does not contain clear and convincing
evidence that Fernandez acted with a selfish motive or failed to cooperate in the
disciplinary process.
        {¶ 33} First, with respect to two of the clients—Betty Smith Carpenter and
Cleora Jean Smith—the evidence does not demonstrate that Fernandez collected a
fee and then failed to perform the work he agreed to complete. The debt-relief
services he supplied to his clients involved their making monthly payments to build
up a sufficient reserve over a period time to offer creditors a settlement. Clients
reached out directly to Morgan Drexen, gave that company their financial
information, and authorized it to withdraw money from their accounts, and the
nature of the debt-relief services required a sufficient amount of money to be
accumulated over a period of time before an offer could be made to settle the debt
with the creditor. These cases could continue for more than five years before
settlements could be completed. And although Fernandez received client funds into
his trust account and did not issue a refund, the clients did not know what became
of their money. For instance, Jack Smith averred that his mother had had $374 per
month withdrawn from her account from July 2015 to February 2016, but he had
“not been informed of where the money went, or who was paid, or if any settlements
with creditors were reached.” Similarly, Cleora Jean Smith stated in her affidavit




                                        12
                                January Term, 2018




that funds had been withdrawn from her account, but she did not assert that creditors
had not been paid or that no work had been completed.
       {¶ 34} And although attorney Richard A. Goulder’s affidavit indicated that
Fernandez had collected $900 to file a bankruptcy for two other clients, Eddie and
Amie Foster, and that Fernandez had not refunded that fee, Fernandez testified that
Morgan Drexen’s paralegals had performed the intake for his bankruptcy cases and
he had never spoken to the Fosters or advised them. Fernandez also testified that
he did not believe that he owed any clients money, but he had not reviewed any
banking records from his trust account to know where client funds had gone. It
does not appear that there has ever been an accounting made, and at most, relator
asserted that it was “not aware that any work was performed by Mr. Fernandez.”
       {¶ 35} The board relied on Disciplinary Counsel v. Horan, 123 Ohio St.3d
60, 2009-Ohio-4177, 914 N.E.2d 175, but that case is distinguishable. There, the
attorney fraudulently altered fee applications to seek payment for court-appointed
work that she had not performed. She also accepted fees from numerous clients but
failed to appear at hearings or complete the work promised; the clients sought
refunds but were unable to contact the attorney, who had signed some checks over
to a relative. The attorney was also named a guardian ad litem in charge of a minor
beneficiary’s trust account, with the funds to be paid to the beneficiary on his 18th
birthday, but after turning 18, the beneficiary was unable to locate the money. We
disbarred the attorney for stealing from her clients.
       {¶ 36} There is a distinction between an attorney’s collecting fees with no
intention of completing the work and no intention of giving a refund—which is
tantamount to theft and evinces a selfish and dishonest motive—and an attorney
who agrees to perform work but out of neglect fails to do so. For example, in
Columbus Bar Assn. v. Albrecht, 106 Ohio St.3d 301, 2005-Ohio-4984, 834 N.E.2d
812, the attorney accepted retainers and then failed to complete work promised to
three clients, but we nonetheless accepted the board’s finding that the attorney




                                         13
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lacked a dishonest or selfish motive. More recently, in Toledo Bar Assn. v. Crosser,
147 Ohio St.3d 499, 2016-Ohio-8257, 67 N.E.3d 789, the attorney accepted a
retainer, failed to perform the work, lied to the client to cover up her neglect, and
then failed to timely refund the fee, and we accepted the finding that she acted
without a selfish motive.
       {¶ 37} Accordingly, the board’s analogy of Fernandez’s case to one
involving an attorney who misappropriated funds and who acted with a selfish
motive is not well taken. The evidence shows that Fernandez relied on Morgan
Drexen and its paralegals to help him manage his practice, that Morgan Drexen
managed the fees paid by the clients it solicited, and that Morgan Drexen paid
Fernandez when he earned his fees. However, since the board rejected the violation
of having an improper relationship with nonlawyers, the remaining evidence
indicates that Fernandez took on too many clients and neglected their cases. There
is insufficient proof that he acted with a selfish motive, however.
       {¶ 38} The board also justified its recommended sanction on its finding that
Fernandez exhibited a “complete failure” to cooperate with the disciplinary
investigation. Although Fernandez admitted failing to respond to any of relator’s
inquiries before it filed the complaint in this case, he admitted his misconduct and
accepted responsibility for it during the course of these proceedings,
communicating and cooperating with relator in proceedings before the board,
stipulating to the admissibility and truth of the testimony in his victims’ affidavits,
and waiving his right to cross-examine them. Further, relator admits in its brief that
Fernandez’s cooperation aided the disciplinary process. This court has recognized
that an attorney’s eventual cooperation in the disciplinary process is a basis to
impose a lesser sanction. See, e.g., Disciplinary Counsel v. Davis, 121 Ohio St.3d
84, 2009-Ohio-500, 902 N.E.2d 25, ¶ 16; Columbus Bar Assn. v. Dice, 120 Ohio
St.3d 455, 2008-Ohio-6787, 900 N.E.2d 189, ¶ 10-11; Disciplinary Counsel v.
Boulger, 88 Ohio St.3d 325, 327, 725 N.E.2d 1112 (2000).




                                          14
                                  January Term, 2018




       {¶ 39} Tellingly, in its independent review of Fernandez’s objection to the
board’s recommendation, the majority does not marshal a single decision from this
court supporting imposition of an indefinite suspension in this case, and in my view,
a lesser sanction is warranted.
       {¶ 40} This case is analogous to Cincinnati Bar Assn. v. Larson, 124 Ohio
St.3d 249, 2009-Ohio-6766, 921 N.E.2d 618. There, the attorney failed to perform
work promised to three clients, did not promptly refund unearned fees, and failed
to respond to letters of inquiry involving the grievance. He demonstrated problems
managing an expanding number of cases, and “his hearing testimony showed that
he had made few concrete changes for the future. He repeatedly referred to a
general ambition to limit the number of his cases, the counties in which he
practiced, and the time he spent out of the office. But these goals remain largely
aspirational.” Id. at ¶ 40. But unlike Fernandez, the attorney had also engaged in
a course of conduct to conceal his failure to competently pursue claims on the
clients’ behalf, and the presumptive sanction for this misconduct was a two-year
license suspension; based on the circumstances, we imposed a two-year suspension
with 12 months stayed on conditions. Id. at ¶ 19.
       {¶ 41} In this case, Fernandez accepted more clients than he could
competently represent, failed to monitor their cases and keep track of and account
for client funds, and effectively allowed nonlawyers to run his practice. However,
there is no proof that he misappropriated client funds, acted with a selfish or
dishonest motive, or completely failed to cooperate in the disciplinary process.
       {¶ 42} Accordingly, I would adopt the recommendation of relator in this
case and impose a one-year license suspension with reinstatement subject to the
conditions recommended by the board.
       O’DONNELL and DEWINE, JJ., concur in the foregoing opinion.
                                  _________________




                                          15
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        Edwin W. Patterson III, Bar Counsel; Taft, Stettinius & Hollister, L.L.P.,
and Justin D. Flamm; and Zingarelli Law Office, L.L.C., and Nicholas A.
Zingarelli, for relator.
        Justin Enrique Fernandez, pro se.
                              _________________




                                        16
