Disciplinary Counsel v. Ault

110 Ohio St. 3d 207
CourtOhio Supreme Court
DecidedAugust 30, 2006
DocketNo. 2006-0441
StatusPublished
Cited by7 cases

This text of 110 Ohio St. 3d 207 (Disciplinary Counsel v. Ault) 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
Disciplinary Counsel v. Ault, 110 Ohio St. 3d 207 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} Respondent, Jerry Edwin Ault of Mansfield, Ohio, Attorney Registration No. 0008445, was admitted to the practice of law in Ohio in 1978. Since June 1, 2000, respondent has served as a judge of the Mansfield Municipal Court. Respondent was elected to a second term in November 2005 and is currently the presiding judge.

{¶ 2} On December 6, 2004, relator, Disciplinary Counsel, charged respondent with four counts of professional misconduct stemming from respondent’s abuse of prescription painkilling drugs. The parties stipulated that respondent had violat[208]*208ed provisions of the Code of Judicial Conduct and the Code of Professional Responsibility relative to Counts I through III, and to the dismissal of Count IV. A panel of the Board of Commissioners on Grievances and Discipline heard the cause and, accepting the stipulations, made findings of misconduct and a recommendation, which the board adopted.

Misconduct

{¶ 3} For each of Counts I, II, and III, the board found separate violations of DR 1-102(A)(4) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation). The board also found as to each count that respondent had failed to uphold the integrity of the judiciary, a violation of Canon 1, and had failed to comply with the law and act in a manner that promotes public confidence in the integrity of the judiciary, a violation of Canon 2. The board further found that respondent had violated Canon 4 relative to all three counts by failing to avoid impropriety and the appearance of impropriety in all his activities.

{¶ 4} Respondent began using painkillers in November 1999, after psychiatrist Dr. David Massie referred him to Dr. Ho Young Chung for help in managing pain caused by respondent’s osteoarthritis and other debilitating conditions. In the years that followed, respondent would eventually deceive these two and several other doctors into overprescribing Schedule II, III, and IV narcotics for his use. The parties stipulated to the addictive qualities of these drugs:

{¶ 5} “Prescription drugs are classified into numerical categories according to standards prescribed by the Controlled Substances Act of 1970. The classification is based upon the risk of abuse and the need for strict regulation. Schedule II drugs — such as Oxycontin, Methadone, Percodan and Duragesic patches — are classified as having a high potential for abuse and no automatic prescription refill renewals are permitted. Schedule III drugs — such as Tylenol with Codeine and Vicodin — are classified as having some potential for abuse. Schedule IV drugs— such as Darvon and Darvocet are classified as having a low potential for abuse and are subject to less regulation.”

{¶ 6} Acknowledging the risks of taking controlled substances and on Dr. Chung’s request, respondent signed a contract setting rules for his use of these drugs. On November 29,1999, respondent pledged that he would (1) consult only Dr. Chung for his prescriptions, (2) not ask for or accept controlled-substance medications from anyone other than Dr. Chung, (3) use the drugs only as Dr. Chung prescribed and, if he exceeded the prescribed dosage, not attempt to replace the medication, and (4) curtail his alcohol use. Respondent renewed these pledges on January 7, 2002, and December 23, 2002.

{¶ 7} Respondent stipulated to having breached these promises repeatedly during September 2001 through December 2002 by obtaining Schedule II, III, [209]*209and IV narcotics from six doctors, mainly Drs. Chung, Massie, Young Kang, and Keun Choi. Drs. Kang and Choi worked at the Get Well Center in Mansfield with Dr. Chung. Dr. Massie, in addition to treating respondent for anxiety, at times also treated his physical ailments.

{¶ 8} During the relevant period, respondent obtained from these doctors 1,432 pills and 20 patches containing ten different narcotic painkillers. He managed to acquire some of this supply by getting Drs. Chung, Massie, Kang, and Choi to prescribe medication for him and by not disclosing to them that they were replicating each other’s efforts. Respondent’s duplicity resulted in his being prescribed medication far in excess of what any one of these physicians would have authorized.

{¶ 9} In October 2002, the Ohio Pharmacy Board began to investigate respondent’s use of narcotic pain medication. Early the next year, the board submitted its investigation to the Richland County Prosecutor’s Office, and a special prosecutor was appointed to pursue charges against respondent.

{¶ 10} On April 9, 2003, representatives of the Ohio Lawyers Assistance Program (“OLAP”) confronted respondent about his drug use. Respondent was admitted on May 8, 2003, to Talbot Hall at the Ohio State University for inpatient treatment for alcohol abuse and drug addiction. He was released on May 17, - 2003, with a diagnosis of addiction to opioids and alcohol. On June 4, 2003, respondent entered into a recovery and monitoring contract with OLAP.

{¶ 11} On December 19, 2003, respondent pleaded no contest to two counts of attempting to obtain a dangerous drug by deception, misdemeanors of the first • degree, in violation of R.C. 2923.02 and 2925.22(A). R.C. 2925.22(A) states, “No person, by deception, as defined in section 2913.01 of the Revised Code, shall procure the administration of, a prescription for, or the dispensing of, a dangerous drug.” R.C. 2913.01(A) defines “deception” as “knowingly deceiving another or causing another to be deceived by any false or misleading misrepresentation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.” For these offenses, respondent received a suspended 120-day jail sentence, was fined $1,000, and was ordered to serve a two-year probation period under strict conditions to assist in his recovery.

{¶ 12} Evidence in support of Count I of relator’s complaint established that between September 25, 2001, and January 28, 2002, respondent deceived Drs. Chung and Massie into prescribing Darvon, Darvocet, and Tylenol with Codeine for him as many as ten times. Sometimes, respondent told Dr. Massie that Dr. Chung was not available to provide a prescription for his pain, concealing from Dr. Massie that he had already obtained a painkilling prescription from another [210]*210doctor. At other times, respondent had Dr. Chung write a prescription for painkillers notwithstanding that Dr. Massie had already given him a prescription just a few days earlier.

{¶ 13} Evidence in support of Count II of relator’s complaint established that Dr. Choi treated respondent for the first time on May 13, 2002, and prescribed Percodan and Duragesic patches for him. Respondent did not inform Dr. Choi that respondent had seen Dr. Massie the day before and obtained a prescription for 20 Darvocets.

{¶ 14} Evidence in support of Count III established that Dr. Kang treated respondent for the first time on December 5, 2002, and prescribed Yicodin, Percodan, and methadone for his pain. During this office visit, respondent advised that he had previously obtained Percocet from Dr. Massie and had run out of this drug. Dr. Kang admonished respondent that he had violated the terms of his treatment by accepting painkillers from Dr. Massie without Dr. Chung’s knowledge. Despite this remonstrance, respondent accepted the prescription from Dr.

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Bluebook (online)
110 Ohio St. 3d 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-counsel-v-ault-ohio-2006.