[Cite as Akron Bar Assn. v. DeLoach, 130 Ohio St.3d 153, 2011-Ohio-4201.]




                      AKRON BAR ASSOCIATION v. DELOACH.
 [Cite as Akron Bar Assn. v. DeLoach, 130 Ohio St.3d 153, 2011-Ohio-4201.]
   Attorneys—Misconduct—Conduct involving dishonesty, fraud, deceit, or
        misrepresentation—Significant mitigating factors—Six-month suspension,
        all stayed, with two years’ probation.
    (No. 2011-0353—Submitted April 19, 2011—Decided August 31, 2011.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                    Discipline of the Supreme Court, No. 10-010.
                                 __________________
        Per Curiam.
        {¶ 1} Respondent, Jana Bassinger DeLoach of Akron, Ohio, Attorney
Registration No. 0071743, was admitted to the practice of law in Ohio in
November 1999. On February 8, 2010, a two-count formal complaint was filed
against respondent by the Akron Bar Association. The first count alleged a
violation of Prof.Cond.R. 1.3 and 1.4, claiming that respondent failed to act with
reasonable diligence and promptness in representing her client and that she failed
to reasonably communicate with her client. The second count alleged violations
of Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and Gov.Bar R. V(4)(G)
(requiring a lawyer to cooperate with the investigation).
        {¶ 2} A panel of the Board of Commissioners on Grievances and
Discipline heard the case and, based on the parties’ stipulations and other
evidence, dismissed Count One and that part of Count Two that alleged a
violation of Gov.Bar R. V(4)(G), but found a violation of Prof.Cond.R. 8.4(c).
Accordingly, the panel recommended the jointly proposed sanction of a six-month
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suspension, all stayed, on the condition of no further disciplinary violations, with
costs taxed to respondent.
       {¶ 3} The board adopted the findings of fact, conclusions of law, and
recommendation of the panel that respondent be suspended from the practice of
law for a period of six months, with the entire six months stayed and costs taxed
to respondent.   In addition, the board recommended two years of monitored
probation.   We accept the board’s findings of fact, conclusions of law, and
recommended sanction.
                                   Misconduct
       {¶ 4} The stipulated facts establish that on September 30, 2008,
respondent was appointed to represent a client for an appeal to the Ninth District
Court of Appeals following his conviction for aggravated burglary. To waive the
filing fee for an appeal if an individual is indigent and incarcerated, a notarized
affidavit of indigency must be filed with the court along with a statement from the
prison with respect to any funds held in the inmates’ financial account. Loc.R.
2(C) of the Ninth Appellate District. Respondent filed the motion to waive the
monetary filing deposit along with the notice of appeal. But the court denied the
motion because respondent failed to file the affidavit of indigency and supporting
financial documents. The court ordered the client to pay the deposit or request a
waiver of the deposit and to show good cause if he could not comply before
December 10, 2008.
       {¶ 5} On January 22, 2009, the court dismissed the appeal because the
required documents had not been filed. A new appellate attorney was appointed,
and the appeal was reopened. The conviction was affirmed.
       {¶ 6} On June 1, 2009, the Akron Bar Association received a written
grievance from the client. During the investigation, respondent represented to the
investigator that she had sent letters to her client about the need to prepare the
affidavit of indigency and obtain information regarding his finances at the prison.




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When requested by the investigator, respondent e-mailed electronic copies of the
letters to him in Microsoft Word format. The investigator had expected to receive
scanned or hard copies of the actual letters sent to the client.           He became
suspicious of the format of the letters when the metadata indicated that the letters
had been created at the Akron Law Library the same day he received them. The
investigator questioned respondent about this. She misrepresented that she had
found the paper copies but had just retyped the letters to get them to the
investigator more quickly.
       {¶ 7} The investigator found this explanation to be implausible, since
respondent could have driven to any copy center and faxed the originals instead of
driving from her home to the Akron Law Library to retype and e-mail the letters.
Upon further inquiry, respondent admitted that she had in fact recreated the letters
because she was unable to find the originals due to poor recordkeeping and
organizational deficiencies. After the written complaint was filed, she located the
original letters and provided them to the investigator, demonstrating that the
substance of the letters actually sent and the recreations was the same.
       {¶ 8} Respondent testified that she is a sole practitioner with little
secretarial support, resulting in a high level of disorganization in her office. Since
this investigation began, she has sought direction from another local attorney to
improve her office practices and is planning to re-engage a former secretary for
assistance.
       {¶ 9} We agree with the board’s finding and the stipulations that a
violation of Prof.Cond.R. 8.4(c) occurred.
                                      Sanction
       {¶ 10} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties 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. We also weigh evidence of the aggravating



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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.
       {¶ 11} As an aggravating factor, the board found that respondent had
admitted to deceptive practices during the disciplinary process, BCGD Proc.Reg.
10(B)(1)(f). The board also found a mitigating factor in the absence of a prior
disciplinary record, BCGD Proc.Reg. 10(B)(2)(a).
       {¶ 12} We have held that “[a] violation of Prof.Cond.R. 8.4(c) will
typically result in an actual suspension from the practice of law unless ‘significant
mitigating factors that warrant a departure’ from that principle are present.”
Disciplinary Counsel v. Potter, 126 Ohio St.3d 50, 2010-Ohio-2521, 930 N.E.2d
307, ¶ 10, quoting Disciplinary Counsel v. Rohrer, 124 Ohio St.3d 65, 2009-
Ohio-5930, 919 N.E.2d 180, ¶ 45. See Disciplinary Counsel v. Carroll, 106 Ohio
St.3d 84, 2005-Ohio-3805, 831 N.E.2d 1000, ¶ 13 (violation of analogous former
DR 1-102(A)(4) usually results in an actual suspension unless mitigating factors
warrant a lesser sanction).
       {¶ 13} Significant mitigating factors are present here. Respondent has no
prior disciplinary record and has shown remorse for her actions. This is a single
case of misconduct with no intent to obtain financial gain. The recreated letter
was later verified to be substantively the same as the original, so the
misrepresentations did not mislead the investigator. Respondent also did not gain
any unfair advantage from the deception, and no one was harmed. She has
acknowledged her misconduct and misrepresentations and has made attempts to
correct her organizational system.
       {¶ 14} In Disciplinary Counsel v. Ricketts, 128 Ohio St.3d 271, 2010-
Ohio-6240, 943 N.E.2d 981, ¶ 41, in which the respondent violated DR 1-
102(A)(4), we found that the lack of a malicious or selfish motive for the




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misrepresentation warranted a stayed six-month suspension.            Based upon
respondent’s own admissions in this case that she violated Prof.Cond.R. 8.4(c)
and the fact that she does not have a prior disciplinary record, the board
recommended a six-month suspension, all stayed on the condition of two years’
monitored probation. We adopt the board’s recommended sanction.
          {¶ 15} Accordingly, respondent, Jana Bassinger DeLoach, is suspended
from the practice of law for a period of six months with the entire six months
stayed.     Respondent shall also serve two years of monitored probation.       If
respondent violates the conditions of her monitored probation, the six-month
actual suspension will be imposed. Costs of these proceedings shall be taxed to
respondent.
                                                             Judgment accordingly.
          O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.


                               __________________
          William G. Chris, Bar Counsel; Richard P. Kutuchief Law Offices and
Richard P. Kutuchief; and James S. Thomasson, for relator.
          Jana Bassinger DeLoach, pro se.
                             ______________________




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