Lawyer Gets Mercy: Ohio Supreme Court Nice To Wrongdoing Lawyer

Lawyer Gets Mercy: Ohio Supreme Court Nice To Wrongdoing Lawyer

The right to practice law is usually governed by the state Supreme Court. When lawyers do wrong they can be punished by the bar with private reproval, public reproval, suspension, or disbarment. For reasons known only to the members of the state supreme court lawyers who do bad things are seldom disbarred unless the are convicted of a crime of moral turpitude. An example is Sterling Everard Gill II (Gill) of Columbus, Ohio, Attorney Registration No. 0034021, who was admitted to the practice of law in Ohio in 1978. In Columbus Bar Association v. Gill, 2012-2069 (Ohio 10/24/2013) [enhanced version available to lexis.com subscribers], it became clear that Gill had a checkered history with the state bar and the Ohio Supreme Court.

In 1988, the Ohio Supreme Court indefinitely suspended him for improperly endorsing a client’s name on a settlement check and converting a portion of the settlement amount to personal use. Gill’s dependency on alcohol and drugs was a significant factor causing his misconduct. The court reinstated Gill to the practice of law two years later, in 1990 although he had stolen from a client and was caught. In April 2007 Gill was again suspended for failing to comply with the continuing-legal-education requirements. After Gill satisfied all the requirements the court reinstated him again in June 2007.

The Columbus Bar Association, filed an 11-count second amended complaint, charging Gill with 53 disciplinary-rule violations and alleging that his recent lapses in sobriety caused some of this professional misconduct. The Board of Commissioners on Grievances and Discipline recommended that Gill be suspended from the practice of law for two years, with 18 months stayed on conditions. The board adopted the panel’s findings of fact and misconduct but recommended that the Supreme Court indefinitely suspend Gill from the practice of law.

MISCONDUCT

Gill’s 40 rule violations originated from nine grievances, a criminal conviction, and his failure to respond to relator’s inquiries about these matters.

Gill is a solo practitioner focusing in criminal defense. The acts of resulted mostly from a failure to effectively communicate with clients-especially about the basis of his fees and his lack of professional malpractice insurance. In addition, at all relevant times, Gill did not have-and therefore did not deposit client funds into-a client trust account.

JUDICIAL GRIEVANCES

The Bar also received grievances against Gill from three judges.

In the court complaints he failed to appear timely, told his client not to appear for trial, came to court intoxicated, and filed an untimely notice of appeal and failed to file timely briefs.

GILL’S CRIMINAL CONVICTION

In 2010, Gill pled guilty to reckless operation of a motor vehicle for rear-ending a car on the highway, leaving the accident scene, and failing to report the accident.

SANCTION

When imposing sanctions for attorney misconduct, the Supreme Court considers several relevant factors, including the ethical duties violated, the actual injury caused, the existence of any aggravating and mitigating factors and the sanctions imposed in similar cases.

ETHICAL DUTIES VIOLATED AND INJURIES CAUSED

The Supreme Court found scope and magnitude of Gill’s misconduct troubling. However, contrary to the evidence it recited, the Supreme Court concluded that Gill’s misconduct is not the most egregious that has come before it. It concluded he did not misappropriate any client funds. He failed to show incompetence in or pervasive neglect of client matters. He did not engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation. And as the board acknowledged, none of Gill’s clients have suffered much, if any, actual harm as a result of Gill’s conduct.

AGGRAVATING AND MITIGATING FACTORS

In aggravation:

1. Gill has a prior disciplinary offense, engaged in a pattern of misconduct, and committed multiple offenses;

2. Gill’s complacency in establishing a client trust account. Gill had been on notice since at least the filing of the disciplinary complaint that the Ohio Rules of Professional Conduct required him to create a client trust account. But inexplicably, he had not yet established one by the date of the panel hearing, even though he continued to receive client retainers.

In mitigation:

1) Gill has acknowledged the wrongfulness of his conduct.

2) He has not exhibited a dishonest or selfish motive.

3) Further, a qualified health-care professional has determined that a chemical dependency and mental disability contributed to his misconduct.

4) Gill’s alcoholism and recently diagnosed bipolar disorder weigh heavily in the court’s analysis of the appropriate sanction.

According to Gill-and there is no evidence to the contrary-he has been sober since November 2011. With the exception of paying his dues, the clinical director of the Ohio Lawyers Assistance Program (“OLAP”) also confirmed that he is in compliance with a five-year contract that he signed in March 2011. Under that contract, he calls OLAP daily, attends Alcoholics Anonymous (“AA”) seven times per week, has an AA sponsor, and must undergo random drug and alcohol testing.

APPLICABLE PRECEDENT

The facts of each disciplinary case are unique, and because of that, the panel and the parties have understandably struggled to set forth precedent with similar circumstances to those here.

For example, two of the cases cited by the Bar involved similar misconduct to Gill’s, but neither case included mitigating evidence of addiction and mental disorder that contributed to the attorney’s professional misconduct. These cases suggest that a lesser penalty than an actual two-year suspension is warranted.

Finally, although the board has not cited any precedent to support its recommendation of an indefinite suspension. In that case, the Supreme Court indefinitely suspended a 30-year attorney who-like Gill-suffered for more than ten years with addictions and a mental-health condition, and found that these disorders contributed to his misconduct, including the misuse of his client trust account.

The attorney ultimately received an indefinite suspension because of his primary offense – the misappropriation of substantial client funds. There is no record that Gill stole or misappropriated client funds, which suggests that a lesser sanction is justified.

CONCLUSION

Having reviewed Gill’s ethical violations and the aggravating and mitigating factors, and having considered the sanctions imposed for comparable conduct and find that the appropriate sanction lands between the panel’s recommendation and that of relator:

(1) a two-year suspension with the second year stayed on the board-recommended conditions, plus one additional condition.

(2) Given Gill’s history of relapses, a significant suspension is necessary to ensure Gill’s new treatment regimen continues its initial success for a more sustained period of time. This sanction will appropriately protect the public but allow Gill to return to the competent and ethical practice of law, provided that he continues his daily efforts at maintaining sobriety and managing his mental illness.

(3) Gill is suspended from the practice of law in Ohio for two years, with the second year stayed on the condition that within 60 days of the court’s suspension order, Gill obtain and begin wearing an alcohol-monitoring device on his ankle for the remainder of the two-year term of suspension.

(4) Gill and the Bar shall arrange for relator to be notified if the device detects any alcohol consumption by Gill. If the device detects alcohol during the term of Gill’s suspension or if Gill otherwise fails to comply with this condition during his suspension, the stay shall be lifted, and Gill shall serve the entire two-year suspension.

In addition, Gill must demonstrate that he has met the following conditions, as recommended by the board: (1) he has established a client trust account, (2) he has completed 12 hours of continuing legal education on law-office management, at least six hours of which shall be focused on the proper use and maintenance of his trust account, (3) he has complied with all terms of his OLAP contract and has followed all of OLAP’s treatment recommendations, including contract renewal (if applicable), attendance at a specified number of AA meetings each week, maintenance of an AA sponsor, random drug testing, and continued treatment for his addiction and bipolar mood disorder by a qualified mental-health provider, (4) he has not committed any further misconduct, and (5) he has submitted proof to a reasonable degree of medical certainty from a qualified medical professional that he is fit to return to the competent, ethical, and professional practice of law.

ZALMA OPINION

This case is taking mercy too far. Gill is a lawyer who has shown no effort to act as a competent, honest, and honorable lawyer. He is an admitted alcoholic and has taken advantage of his clients as a result. He carries no malpractice insurance and fails to tell his clients of the lack of such protection. He comes to court intoxicated. He abandons his clients. He lies to judges. He should not have been sentenced to a one year suspension he should have been disbarred and never allowed to practice law again. The Supreme Court and the state Bar of Ohio, have failed in their duty to protect the public by ignoring the evidence and finding it to be bad but not as bad as others.

When a client is sentenced improperly to life in prison because Gill was drunk or impaired by his bi-polar condition, the client will suffer, not Gill.

    By Barry Zalma, Attorney and Consultant

Reprinted with Permission from Zalma on Insurance, (c) 2013, Barry Zalma.

Barry Zalma, Esq., CFE, is a California attorney who limits his practice to consultation regarding insurance coverage, insurance claims handling, insurance bad faith and fraud and acting as a mediator or arbitrator on insurance disputes. Mr. Zalma serves as a consultant and expert almost equally for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and serves as its only consultant. He recently published the e-books, "Zalma on Rescission in California - 2013"; "Random Thoughts on Insurance" containing posts from this blog; "Zalma on Insurance;" "Murder and Insurance Don't Mix;" “Heads I Win, Tails You Lose — 2011,” “Zalma on Diminution in Value Damages,” “Arson for Profit” and “Zalma on California Claims Regulations,” and others that are available at Zalma Books.

Mr. Zalma can be contacted at Barry Zalma or zalma@zalma.com, and you can access his free "Zalma on Insurance Fraud" newsletter at Zalma’s Insurance Fraud Letter.

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