Columbus Bar Assn. v. DiAlbert - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Columbus Bar Assn. v. DiAlbert, 98 Ohio St.3d 386, 2003-Ohio-1091.]

COLUMBUS BAR ASSOCIATION v. DIALBERT.
[Cite as Columbus Bar Assn. v. DiAlbert, 98 Ohio St.3d 386, 2003-Ohio-1091.]
Attorneys at law -- Misconduct -- Six-month suspension with sanction stayed on
conditions -- Engaging in conduct involving misrepresentation --
Engaging in conduct adversely reflecting on fitness to practice law --
Neglect of an entrusted legal matter -- Prejudicing or damaging client
during representation -- Failing to cooperate in disciplinary
investigation.
(No. 2002-2151 -- Submitted January 8, 2003 -- Decided March 26, 2003.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 02-29.
__________________

Per Curiam.
{¶1} On June 17, 2002, relator, Columbus Bar Association, charged
respondent, John Eugene DiAlbert of Westerville, Ohio, Attorney Registration
No. 0030101, with violations of the Code of Professional Responsibility. A panel
of the Board of Commissioners on Grievances and Discipline considered the
cause on the parties' consent-to-discipline agreement. See Section 11 of the
Rules and Regulations Governing Procedure on Complaints and Hearings Before
the Board of Commissioners on Grievances and Discipline. The panel made the
following findings.
{¶2} Respondent represented a client who asked him to file a motion to
secure the client's judicial release from incarceration. Respondent's client
became eligible for judicial release in late September 2000, and by that time,
respondent had been paid and had promised to file the motion at the earliest
opportunity. However, respondent did not file the motion for judicial release until

SUPREME COURT OF OHIO
November 15, 2000, and on several occasions before that, he had given his client
fictitious anticipated release dates.
{¶3} Respondent filed the motion for judicial release after confessing to
his client that he had not done so before. The motion was denied on December
12, 2000. Respondent filed a second motion for his client's release on December
18, 2000. The trial court granted that motion in February 2001.
{¶4} The parties agreed and the panel found that respondent's conduct
violated DR 1-102(A)(4) (engaging in conduct involving misrepresentation) and
(6) (engaging in conduct adversely reflecting on the attorney's fitness to practice
law), 6-101(A)(3) (neglect of an entrusted legal matter), and 7-101(A)(3)
(intentional prejudice or damage to client during representation). The parties also
agreed and the panel found that by initially failing to cooperate with relator's
investigation, respondent violated DR 1-102(A)(6) and Gov.Bar R. V(4)(G).
{¶5} In recommending a sanction, the panel reviewed the aggravating
and mitigating circumstances stipulated to by the parties. The panel considered
respondent's lack of cooperation in the disciplinary process, the vulnerability of
his client, and the harm caused to his client as aggravating circumstances. As
mitigating factors, the panel considered that respondent had no prior disciplinary
record, had not acted out of selfish motive, and had otherwise been a reputable
practitioner. Moreover, respondent conceded that some of his misconduct may
have been the product of a psychological impairment for which he should seek a
professional diagnosis and treatment.
{¶6} The panel recommended the sanction suggested by the parties--a
six-month suspension from the practice of law, with the entire six months stayed,
provided that respondent comply with four conditions: (1) refrain from any
further misconduct, (2) timely pay the costs of the disciplinary proceeding, (3)
seek professional psychological counseling and report regularly to relator about
his progress, and (4) participate, if his client requests, in relator's binding fee-
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January Term, 2003
arbitration program. The board adopted the panel's findings of misconduct and
recommendation.
{¶7} We agree that respondent violated DR 1-102(A)(4) and (6), 6-
101(A)(3), and 7-101(A)(3) and Gov.Bar R. V(4)(G) as found by the board. We
also agree that a six-month suspension, stayed on conditions, is appropriate.
Accordingly, respondent is hereby suspended from the practice of law in Ohio for
six months, but this sanction is stayed on the conditions recommended by the
board. If respondent fails to meet these conditions, the stay of his suspension
shall be lifted and respondent shall serve six months of actual suspension from the
practice of law. Costs are taxed to respondent.
Judgment accordingly.

RESNICK, F.E. SWEENEY, PFEIFER, COOK, LUNDBERG STRATTON and
O'CONNOR, JJ., concur.

MOYER, C.J., dissents.
__________________

MOYER, C.J., dissenting.
{¶8} DiAlbert admits that he told his client that he would file a motion
for judicial release on his client's behalf at the earliest opportunity. The client
became eligible for judicial release in late September 2000 and DiAlbert
neglected to file the motion until November 15, 2000. DiAlbert also misled his
client during this period by making false and deceptive statements regarding a
potential release date.
{¶9} In addition, from August 2001 to June 2002, DiAlbert failed to
cooperate with relator's investigation regarding his conduct.
{¶10} For these reasons, I would suspend respondent from the practice of
law for six months and would not stay any part of the suspension.
__________________
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SUPREME COURT OF OHIO

Strip, Fargo, Hoppers & Leithart Co., L.P.A., and John W. Hoppers; Bruce
A. Campbell, Bar Counsel, and Jill M. Snitcher McQuain, Assistant Bar Counsel,
for relator.

John Eugene DiAlbert, pro se.
__________________
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