Columbus Bar Ass'n v. McCorkle

828 N.E.2d 99, 105 Ohio St. 3d 430
CourtOhio Supreme Court
DecidedJune 8, 2005
DocketNo. 2004-1822
StatusPublished
Cited by4 cases

This text of 828 N.E.2d 99 (Columbus Bar Ass'n v. McCorkle) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Columbus Bar Ass'n v. McCorkle, 828 N.E.2d 99, 105 Ohio St. 3d 430 (Ohio 2005).

Opinion

Per Curiam.

{¶ 1} Respondent, James McCorkle, formerly of Plain City, Ohio, Attorney Registration No. 0019801, was admitted to the practice of law in Ohio in 1976. On April 14, 2003, relator, Columbus Bar Association, charged respondent with violations of the Code of Professional Responsibility. A panel of the Board of Commissioners on Grievances and Discipline heard the cause, including the parties’ stipulations, and made findings of misconduct and a recommendation, all of which the board adopted.

Misconduct

{¶ 2} Respondent has not been registered as an attorney under Gov.Bar R. VI since September 1, 2003, and he no longer maintains an office at the registration address on file with the Attorney Registration Section of the Supreme Court of Ohio or lives at his last known residence. Divorced in 2003, respondent now stays in motels or with friends, some of whom he knows through Alcoholics Anonymous.

{¶ 3} Respondent was a sole practitioner, sharing office space with several other lawyers and maintaining a high-volume personal-injury practice. In August 2002, however, respondent stopped working at his law office during business hours, coming by at night. He stopped communicating with his secretary and clients, attending scheduled court dates, and meeting statutes of limitations and other deadlines. He stopped responding to business mail, e-mail, and voice mail. Respondent also failed to maintain contact with courts in which clients’ cases were pending or to properly withdraw from cases that he was unwilling or unable to manage. He further failed to conscientiously account for funds in his client trust account, to remit clients’ funds and files on request, and to otherwise protect his clients’ legal interests.

{¶ 4} Richard D. Topper, an attorney with whom respondent shared office space, became concerned that respondent had abandoned his practice, and as required by DR 1-103(A), he reported the problem to relator.

{¶ 5} With respondent’s permission and relator’s approval, Topper contacted over 100 of respondent’s clients, assuring them that their interests would be protected despite respondent’s unavailability. Topper and another attorney in their office suite then arranged for the clients’ files to be redistributed, with the clients’ consent, to lawyers willing and able to handle the responsibility.

{¶ 6} By the end of 2002, the two attorneys managing respondent’s caseload had satisfactorily handled some situations requiring prompt legal action to settle [432]*432or save the claim. In an earlier personal-injury case, however, respondent had allowed a statute of limitations to run on a claim that he was actively attempting to settle on his client’s behalf. That client, Patricia Marachi, ultimately sued respondent in a malpractice action and secured a default judgment against him.

{¶ 7} In overseeing respondent’s practice, Topper also discovered that respondent had been appropriating client funds for his own use as well as advancing to clients funds that he was supposed to be holding in trust for other clients. The trust account from which these funds were drawn was largely a depository for sums received in settlement from insurance companies. By the time of Topper’s discovery, respondent had depleted the entire account, over $50,000.

{¶ 8} Respondent has since replenished his trust account from money received in legal fees and inheritance, and all funds have now been distributed to the clients entitled to the money. Topper testified that none of these clients, with the exception of the client who sued for malpractice, have been prejudiced financially by respondent’s withdrawals or his neglect.

{¶ 9} Respondent stipulated to the misconduct found by the board relative to the abandonment of his practice. The board found that respondent had violated DR 1-102(A)(5) (prohibiting conduct prejudicial to administration of justice) and (6) (prohibiting conduct adversely reflecting on fitness to practice law); 2-110(A)(1) (prohibiting the withdrawal from representation without a tribunal’s required permission) and (2) (prohibiting withdrawal from representation without taking steps to avoid prejudice to a client); 6-101(A)(3) (prohibiting neglect of an entrusted legal matter); and 9-102(B)(3) (the board cited section (B)(1) but obviously intended (B)(3)) (requiring a lawyer to maintain records of funds and property of clients and render appropriate accounts) and (4) (requiring a lawyer to remit funds to which a client is entitled).

{¶ 10} Respondent also stipulated to violations of DR 1-102(A)(5) and (6) and Gov.Bar R.V(4)(G), conceding that he had failed to cooperate in the investigation of his misconduct. The board thus also found this misconduct.

Sanction

{¶ 11} In recommending a sanction, the board considered the aggravating and mitigating features of respondent’s case. See Section 10 of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Board of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). Finding from a medical report and his testimony that respondent suffers from alcoholism and depression, the board weighed the mitigating effect of these factors under BCGD Proc.Reg. 10(B)(2)(g)® through (iv). These regulations recognize alcohol dependence and mental disability as mitigating when (1) a lawyer has been professionally diagnosed as alcohol-dependent or as having a mental disability, (2) the dependency or disability contributed to the misconduct, (3) the lawyer has [433]*433successfully completed a dependency treatment program or has a sustained period of successful treatment for the disability, and (4) the lawyer is able, according to professional prognosis, to return to the competent, ethical, and professional practice of law notwithstanding these conditions.

{¶ 12} The board found that respondent’s depression and alcoholism compromised his professional competence during the underlying events. According to a psychologist’s evaluation conducted in January 2004, respondent was an alcoholic and had experienced a severe major depressive disorder. Although he had no psychotic symptoms that impaired his cognitive capacity, the condition grossly impaired his professional judgment. At the time of his examination, the psychologist reported that respondent was significantly at risk of relapse. In fact, the psychologist concluded that respondent was not then a candidate for the treatment program that recovery from his diseases required.

{¶ 13} At the panel hearing, respondent, who has no record of prior discipline in 26 years of practice, testified that he had been seeing a psychiatrist monthly since December 2002. He had also entered several rehabilitation programs since September 2000 but had not been being able to sustain recovery. Respondent now attends Alcoholics Anonymous meetings and takes the antialcoholism prescription drug Antabuse, along with other medication for his depression. Respondent testified that he has been sober since spring 2003.

{¶ 14} The board did not find respondent’s disability and dependence mitigating because no expert prognosis established his ability to return to the competent and ethical practice of law. The board found that although respondent had admitted appropriating clients’ money from his trust account for his own use, he had promptly replenished the money and paid his clients within months after realizing the arrearages. Thus, the board also found mitigating that respondent had made timely efforts to rectify the consequences of his misconduct. BCGD Proc.Reg. 10(B)(2)(c).

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Cite This Page — Counsel Stack

Bluebook (online)
828 N.E.2d 99, 105 Ohio St. 3d 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbus-bar-assn-v-mccorkle-ohio-2005.