Warren Cty. Bar Assn. v. Bunce - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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WARREN COUNTY BAR ASSOCIATION v. BUNCE.
[Cite as Warren Cty. Bar Assn. v. Bunce (1998), ___ Ohio St.3d ___.]
Attorneys at law -- Misconduct -- One-year suspension with sanction stayed on
conditions -- Neglect of an entrusted legal matter.
(No. 97-1277 -- Submitted December 2, 1997 -- Decided February 18, 1998.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 96-43.

On April 15, 1996, relator, Warren County Bar Association, filed a
complaint with the Board of Commissioners on Grievances and Discipline of the
Supreme Court ("board") against respondent, Jack P. Bunce of Lebanon, Ohio,
Attorney Registration No. 0033229. The facts, as stipulated by the parties, giving
rise to relator's complaint are summarized as follows.

On September 16, 1994, June Herman (formerly known as June Schwartz),
met with respondent to establish a guardianship for her father. At the meeting,
certain documents were executed and Herman gave respondent a $550 retainer. In
addition, respondent informed Herman that he would file the necessary documents
with the court. Respondent provided Herman with a document regarding
respondent's need for an expert evaluation of Herman's father. Respondent
instructed Herman that the evaluation needed to be returned to him in order to
facilitate the proceedings.

On September 21, 1994, Herman's father died and on that date Herman
returned the expert evaluation report to respondent. Respondent then advised
Herman that she would need to sign new documents to initiate probate
proceedings with respect to her father's will. Herman mentioned to respondent
that it was her belief that her father did not have a will and that he never had

executed one. Herman signed several documents and she was told that they were
necessary "to probate a will."

Subsequently, over a period of thirteen to fourteen months, Herman
telephoned respondent's office on at least twelve occasions to check on the status
of her father's estate, and she left messages for respondent to return her calls. On
each occasion, Herman spoke with respondent's secretary. Herman was told by
respondent's secretary that she needed to schedule an appointment. Respondent
did not return any of Herman's telephone calls. Herman also personally appeared
at respondent's office on three or four occasions to check on the status of the case
and was told by respondent's secretary that respondent was "waiting on a court
date." Herman was also told that "it takes time to get through the court system."

On November 20, 1995, Herman went to the Warren County Probate Court
and learned that no documents had ever been filed with the court with respect to
the death of her father. Herman then went to respondent's office to inform him of
what she had learned. Herman, again, spoke only with respondent's secretary and
was told that there "had to be some mix up" and that respondent would be out of
the office for four to five days. Two days later, Herman hired new counsel to
handle her father's estate. She sent a letter to respondent requesting that he return
the $550 retainer to her. Respondent did not respond to Herman's request to
return the retainer. Thereafter, Herman filed, with relator, a "request for
investigation" regarding respondent's inaction on her father's estate and
respondent's failure to return her telephone calls.

Respondent was informed of the pending investigation against him, but he
did not respond to relator prior to the time of the filing of the complaint. In
addition, on September 21, 1995, respondent had been temporarily suspended
from the practice of law for failing to comply with Gov.Bar R. X (attorney
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continuing legal education requirements). Respondent was reinstated on
November 2, 1995.

On November 1, 1996, a panel of the board conducted a hearing with
respect to relator's complaint. In a "written stipulation" submitted to the panel by
the parties, respondent admitted to failing to handle a legal matter entrusted to
him, he agreed to provide restitution to Herman, and he also agreed to undergo a
psychological evaluation. Respondent and relator jointly recommended that
respondent be given a written reprimand. They also agreed that if respondent did
not complete the psychological evaluation and comply with treatment
recommended by the psychologist, respondent would be subject to a one-year
suspension from the practice of law.

At the hearing, respondent stated that he was a 1973 summa cum laude
graduate of Ohio State University School of Law, that he was on the school's law
review, and that he was Order of the Coif. Since 1988, respondent has been a sole
practitioner. In addition, he works for the Legal Aid Society and he is also a
public defender in Mason, Ohio. Respondent testified that he was in the process
of going through a divorce and that his health problems adversely affected his
practice. Further, respondent testified that he suffers from sleep apnea, that he is a
diabetic, and that he has a heart condition.

At the close of the hearing, the panel agreed that respondent should undergo
a psychological evaluation and ordered him to submit the results to it.
Subsequently, an examination was conducted by a psychologist, who determined
that in addition to respondent's other health concerns, respondent also suffered
from major depression that "may involve medication and certainly the
establishment, development, and maintenance of a psycho-therapy relationship."
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Thereafter, the panel submitted findings of fact, conclusions of law, and
recommendation to the board. The panel determined that respondent had violated
DR 6-101(A)(3) by neglecting a legal matter entrusted to him. The panel
recommended that respondent be suspended from the practice of law for one year,
but that his suspension be stayed on the condition that his practice be monitored
by relator and that respondent seek and receive psychological treatment.

The board adopted the findings of fact and conclusions of law of the panel.
However, the board disagreed with the panel's recommendation. Instead, the
board recommended that respondent be suspended from the practice of law for a
period of eighteen months with the final twelve months of that period stayed on
the condition that respondent's practice be monitored and that he seek and receive
psychological treatment.
__________________

Michael J. Davis, for relator.

James A. Whitaker, for respondent.
__________________

DOUGLAS, J. We adopt the board's findings and conclusion that respondent
violated DR 6-101(A)(3). Clearly, respondent neglected a legal matter entrusted
to him by his client. We are also aware of respondent's previous disciplinary
matter concerning his failure to comply with requirements set forth in Gov.Bar R.
X. However, after thoroughly considering the evidence in this case, we adopt the
panel's recommended sanction, in part, rather than the sanction recommended by
the board.

When imposing a sanction, we will consider not only the duty violated, but
the lawyer's mental state, the actual injury caused, and whether mitigating factors
exist. See Dayton Bar Assn. v. Shaman (1997), 80 Ohio St.3d 196, 201, 685
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N.E.2d 518, 521, citing Cuyahoga Cty. Bar Assn. v. Boychuk (1997), 79 Ohio
St.3d 93, 97, 679 N.E.2d 1081, 1084. In this case, we note respondent's numerous
health problems that apparently existed at the time of the misconduct and the fact
that he has accepted full responsibility for his inattentiveness to his client's needs.
Respondent has shown remorse for his neglectful behavior, he has agreed to
provide full restitution to his client, and he has also agreed to undergo treatment
for his depression.

Accordingly, respondent is hereby suspended from the practice of law for a
period of one year, with the suspension stayed on the condition that respondent's
practice be monitored by relator for a period of two years and that respondent
undergo psychological treatment for his depression. Additionally, prior to
discontinuing treatment for his depression, respondent must provide proof to
relator by way of a medical statement that treatment is no longer necessary. Costs
taxed to respondent.
Judgment accordingly.

RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.

MOYER, C.J., and COOK, J., dissent.
__________________

MOYER, C.J., dissenting. I respectfully dissent from the sanction imposed
by the majority. I would adopt the recommendation of the Board of
Commissioners on Grievances and Discipline and suspend respondent for eighteen
months with the final twelve months of that period stayed on the condition that
respondent's practice be monitored and that he seek and receive psychological
treatment.

COOK, J., concurs in the foregoing dissenting opinion.
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