BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO

Transcription

1 BEFORE THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT OF OHIO In Re: Reinstatement of Richard Evan Wolfson Attorney Reg. No Respondent Ohio State Bar Association Case No Findings of Fact, Conclusions of Law and Recommendation of the Board of Commissioner on Grievances and Discipline of the Supreme Court of Ohio Relator This reinstatement matter proceeded to oral hearing in Cleveland, Ohio, on April 18, 2008, before a panel comprised of Robert V. Housel, Chair, Joseph Wittenberg and Patrick Sink. None of the panel members is from the appellate judicial district in which the petitioner resides or the appellate district in which petitioner resided at the time of suspension. See Gov. Bar R. V(10(G)(1). Eugene P. Whetzel, Esq. was counsel for the Relator. Respondent was represented by Michael H. Mearan, Esq. Relator, Ohio State Bar Association, waived its right to make an opening statement. Respondent, Richard Wolfson, gave an opening statement and then proceeded to present testimony. His first witness was Scott Mote, the Executive Director of the Ohio Lawye s JUN CLERK OF COURT SUPREME COURT OF OHIO

2 Assistance Program (OLAP). After being duly qualified, Mr. Mote testified that Respondent signed a contract with OLAP in January of 2003 for five years. He testified that Mr. Wolfson: "...is in full compliance of everything that we required him to do in connection with the contract. The only thing he hasn't complied with, and I've waived the current payment of our administrative fee because he didn't have the money to do it. That's the only thing he hasn't done. And if he gets back on his feet and is capable of paying us what he owes us, then we will gladly accept the money, but I never deny people our services because of an inability to pay." Tr., 18. Concerning his opinion as to Respondent's fitness to practice law, Mr. Mote stated: "Sir, I have no reservations whatsoever that Richard meets the qualifications to practice law in the state given his current situation and provided, of course, that he continues to do what he is doing now. I go to three meetings a week with 23 years of sobriety pretty much. I miss some during the summer with golf and sometimes I'm out of town, travel or whatever. The key for us is a commitment to a lifetime of staying connected to a 12-step recovery program. I've never heard anybody come into a meeting and talk about the relapse and said they relapsed because they said they were going to too many meetings. It's always because they are not going to enough or they quit going. And now for all of the these [sic] years that he has been working a recovery program, to continue to do a meeting, two meetings a day, you know, month after month, year after year, I would see him continuing that. I just - it's part of who he is now. It's part of who he is now." Tr., Responding to a question from Chair Housel conoerning whether Mr. Mote had reservations about whether Respondent was capable of handling the pressures involved in practicing law, he stated: "Yes, I do. The reason is this. He has got an awareness of what his triggers are, conceivably could be. For me it would be fear, envy, anger, resentment. Boom. Those are the things that, in my character defects, are the most glaring. Fear, envy, anger, resentment. Whatever his are. I, for example, when I got sober in January of '85, I recognized that my criminal practice was a huge trigger for me because I'm hanging out with people that are not in my best interest. I stopped doing criminal work and gave it all off to one of the other guys or I turned down the cases, that kind of thing. 2

3 I would hope and think that he knows himself well enough now that he will limit his exposure to those things that can conceivably lead him to start thinking that maybe I can have just one drink, kind of thing." Tr., 24. Respondent next called Stephanie Krznarich to testify. After being duly qualified, Ms. Krznarich testified that she diagnosed Mr. Wolfson as suffering from: "Depression known as Dysthymia, D-Y-S-T-H-Y-M-I-A, anxiety disorders with panic attacks, obsessive compulsive disorder, polysubstance dependence." When asked what her observations were about Respondent and his treatment, she opined: "Richard has come full circle. He really is a miracle and I don't throw that term around lightly. Richard was given multiple suggestions and he took every one of them to heart and he implemented them. When he was asked to - when he was required to go to jail, he went to jail, When he was required to go to treatment, he went to treatment. He has continued in treatment the entire length of time that we have known him. And that's been voluntary. Nobody has said to Richard that you must stay in treatment. It's something that he has taken his own initiative to do, to do further internal work on himself to address symptoms and essentially he has been symptom-free for nearly five years." Tr., Respondent's counsel then asked Ms. Krznarich about Mr. Wolfson's ability to practice law and his compliance with his OLAP contract. She responded: "I would like to refer back to a letter that I wrote to Richard to describe what his current compliance is with OLAP and the state of his mental health and chemical dependency. And that's dated October 26 of Essentially, I said that as demonstrated by Richard's actions, he knows how, when and where to seek assistance for treatment as an ongoing support of his disease. Richard had - clearly the most important part of chemical dependency is being able to recognize that you have one and then being willing to get treatment. Richard recognizes that he has both chemical dependency and mental health disorders and his willingness to seek treatment has been demonstrated over and over and over again. So I don't have any fears about his ability to practice law. I don't have any concerns that he will harm clients. I don't see that he is an impaired professional that is a threat to the public. I see him as an asset to the public. He is a very good thinker. He is a very great writer. He synthesizes information well. This is not the same person that we saw coming off, in fact, currently using drugs and alcohol back in He is able to formulate his thoughts and he knows what support systems are available." 3

4 (Question from counsel) "Do you have any hesitancy whatsoever in recommending him to this Panel for the practice of law?" "None." Tr., Respondent testified as the last witness. He testified that he has complied with all the Supreme Court's requirements to allow him to practice law again. The essence of his testimony is that he realizes that he must continue to avoid any addictive substance. He seemed very committed to remaining sober and returning to the practice of law. CONCLUSIONS OF LAW The panel finds by clear and convincing evidence that Respondent has satisfied all of the conditions set out in Section 10(E) of Gov. Bar Rule V. Those conditions are: "(E) Requisites for Reinstatement. The petitioner shall not be reinstated unless he or she establishes all of the following by clear and convincing evidence to the satisfaction of the panel hearing the petition for reinstatement: (1) That the petitioner has made appropriate restitution to the persons who were harmed by his or her misconduct; (2) That the petitioner possesses all of the mental, educational, and moral qualifications that were required of an applicant for admission to the practice of law in Ohio at the time of his or her original admission; (3) That the petitioner has complied with the continuing legal education requirements of Gov. Bar R. X, Section 3(G); (4) That the petitioner is now a proper person to be readmitted to the practice of law in Ohio, notwithstanding the previous disciplinary action." Attorney Eugene P. Whetzel represented the Ohio State Bar Association Grievance Committee in this matter and he stipulated that his Committee has examined Mr. Wolfson for reinstatement and has no objection to the petition for reinstatement. 4

5 The panel further recommends that Mr. Wolfson shall have a monitor for his first two (2) years of law practice. That monitor can be Attorney Michael H. Mearan, per his letter to Chair Housel attached as Exhibit "A." The panel finds that Respondent, Richard E. Wolfson, should be reinstated to the practice of law on the above condition. BOARD RECOMMENDATION Pursuant to Gov. Bar Rule V, Sec. 10(G)(5) and (6), the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio considered this matter on June 5, The Board adopted the Findings of Fact, Conclusions of Law and Recommendation of the Panel and recommends that the Respondent, Richard Evan Wolfson, be readmitted to the practice of law in the State of Ohio upon the panel's condition. The Board further recommends that the cost of these proceedings be taxed to the Respondent in any disciplinary order entered, so that execution may issue. Pursuant to the order of the Board of Commissioners on Grievances and Discipline of The Supreme Court of Ohio, I hereby certify the foregoing Findings of Fact, Conclusions of Law, and Recommendations as those of the Board. ^44A#e / JO ATHAN W. ARS L, cretar^ Board of Commissioners on Grievances and Discipline of The Supreme Court of Ohio 5

6 Michael H. Mearan Attorney at Law Robert V. Housel, Jr., Esq. 55 Public Square, Ste Cleveland, OH Apri121, 2008 Re: OSBA v. Richard W olfson Dear Mr. Housel, Further to your request in the above matter, I submit the following: I have known Richard since he cacme to Portsmouth in 1990 and have been involved in his case from its beginning. I see Richard frequently and am familiar with his recovery program from alcohol and drugs. If he is reinstated, I agree to act as Richard's local monitor, and to see that he follows whatever requirements the Court orders. Hc can use my office and will be expected to contribute toward expenses as part of his responsibilities. Please call me if I may offer any other assurance on Richard's behalf. Michael H. Mearan Attomcy at Law 812 Sixth Street, Portsmouth, Ohio (740) EXLLBTT A

7 ^4-t $l' ^ruw 41 ourt.^^ ^^^J JUL Ohio State Bar Association, Relator, V. Richard Evan Wolfson, Respondent. Case No ON CERTIFIED REPORT BY THE BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE OF THE SUPREME COURT MARCIA J. MENGEL, CLERK SUPkEAiE COURTOFOHIQ ORDER On January 29,2003, in In re: RichardE. Wolfson, Case No , respondent, Richard Evan Wolfson, was suspended on an interim basis pursuant to Gov. Bar R. V, Sec. 5. Pursuant to this Court's order, the respondent was required to file with the Clerk of this Court an affidavit showing compliance with the order, showing proof of service of all notices required by the order, and setting forth the address where the respondent would receive communications. Respondent did not file an affidavit of compliance. The Board of Comniissioners on Grievances and Discipline filed its Final Report in this Court on January 12, 2004, recommending that pursuant to Rule V, Sec. 6(B)(2) of the Supreme Court Rules for the Government of the Bar of Ohio the respondent, Richard Evan Wolfson, be indefinitely suspended from the practice of law. Respondent filed objections to said Final Report, and this cause was considered by the Court. On consideration thereof, IT IS ORDERED AND ADJUDGED by this Court that Case No , be, and hereby is, dismissed and it is further ordered and adjudged by this Court that consistent with the opinion rendered herein, and pursuant to Gov. Bar R. V, Sec. 6(B)(2), respondent, Richard Evan Wolfson, Attomey Registration Number , last known business address in Portsmouth, Ohio, be indefinitely suspended from the practice of law with no credit for time served. In addition to all other requirements for reinstatement set forth in this Court's orders and the Rules for the Government of the Bar of Ohio, respondent's reinstatement is conditioned upon the following: (1) respondent shall participate actively and meaningfully in the lawyer support system provided by the Ohio Lawyers Assistance Program, Inc.; (2) respondent shall undergo treatment by a psychiatrist, psychologist, or other licensed health-care professional conceming his substance dependencies, dysthymic disorder, and obsessive-compulsive disorder; (3) respondent shall take, regularly and as directed, all medications that any psychiatrist or medical doctor prescribes for him to treat his substance dependencies, dysthymic disorder, and obsessive-compulsive disorder; (4) upon applying for readmission to the practice of law in the state of Ohio, respondent shall present evidence that he has (A) actively and meaningfully participated in the lawyer support system provided by the Ohio Lawyers Assistance Program, Inc.; (B) undergone continuing treatment by a psychiatrist,

8 psychologist, or other licensed health-care professional concerning his substance dependencies, dysthyniic disorder, and obsessive-coinpulsive disorder; (C) taken, regularly and as directed, all medications that any psychiatrist or medical doctor prescribed for him to treat his substance dependencies, dysthyniic disorder, and obsessive-compulsive disorder; and (5) upon applying for readmission to the practice of law in the state of Ohio, with and as part of the petition for reinstatement, respondent shall present a written report from a psychiatrist, psychologist or other licensed healthcare professional stating that the treating professional has evaluated and assessed respondent within 30 days of the petition for reinstatement, and has concluded, to a reasonable degree of psychiatric, psychological, or scientific certainty, (a) that respondent can then emotionally and psychologically withstand the pressures and demands associated with the practice of law and (b) that none of the conditions or disorders from which respondent then suffers will impair his ability to practice law or to meet the demands of the practice of law. Upon request by relator, respondent shall provide its representatives a copy of the report. IT IS FURTHER ORDERED that the respondent inimediately cease and desist from the practice of law in any form and is hereby forbidden to appear on behalf of another before any court,judge, commission, board, administrative agency or other public authority. IT IS FURTHER ORDERED that respondent is hereby forbidden to counsel or advise or prepare legal instruments for others or in any manner perform such services. IT IS FURTHER ORDERED that the respondent is hereby divested of each, any, and all of the rights, privileges and prerogatives customarily accorded to a meinber in good standing of the legal profession of Ohio. IT IS FURTHER ORDERED that respondent be taxed the costs of these proceedings in the amount of One Thousand Two Hundred Seventy-Nine Dollars and Eighty-Eight Cents ($1,279.88), which costs shall be payable to this Court by certified check or money order on or before 90 days from the date of this order. It is further ordered that if these costs are not paid in full on or before 90 days from the date of this order, interest at the rate of 10% per annum shall accrue as of 90 days from the date of this order, on the balance of unpaid Board costs. It is further ordered that respondent may»ot petition for reinstatement until such time as respondent pays costs in full, including any accrued interest. IT IS FURTHER ORDERED that, pursuant to Gov. Bar R. X, Sec. 3(G), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov. Bar R. X, Sec. 3(G), respondent shall complete one credit liour of fnstruction related to professional conduct required by Gov. Bar R. X, Sec. 3(A)(1), for each six months, or portion of six months, of the suspension.

9 IT IS FURTHER ORDERED, sua sponte, by the Court, that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against the respondent by the Clients' Security Fund pursuant to Gov. Bar R. VIII, Sec. 7(F). It is further ordered, sua sponte, by the Court that if, after the date of this order, the Clients' Security Fund awards any amount against the respondent pursuant to Gov. Bar R. VIII, Sec. 7(F), the respondent shall reiniburse that amount to the Clients' Security Fund within 90 days of the notice of such award. IT IS FURTHER ORDERED that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio; (2) respondent complies with the Supreme Court Rules for the Govemment of the Bar of Ohio; (3) respondent complies with this and all other orders of the Court; and (4) this Court orders respondent reinstated. IT IS FURTHER ORDERED that on or before 30 days from the date of this order, respondent shall: 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place; 2. Regardless of any fees or expenses due respondent, deliver to all clients being represented in pending matters any papers or other property pertaining to the client, or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property; 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent; 4. Notify opposing counsel in pending litigation or, in the absence of counsel, the adverse parties, of respondent's disqualification to act as an attorney after the effective date of this order, and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files; 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent; 6. File with the Clerk of this Court and the Disciplinary Counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service

10 of notices required herein, and setting forth the address whei-e the respondent may receive communications; and. 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order. IT IS FURTHER ORDERED that respondent shall keep the Clerk, the Ohio State Bar Association, and the Disciplinary Counsel advised of any change of address where respondent may receive communications. IT IS FURTHER ORDERED, sua sponte, that all documents filed with this Court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made on respondent by sending this order, and all other orders in this case, by certified mail to the most recent address respondent has given to the Attomey Registration Scction. IT IS FURTHER ORDERED that the Clerk of this Court issue certified copies of this order as provided for in Gov. Bar R. V, Sec. 8(D)(1), that publication be made as provided for in Gov. Bar R. V, Sec. 8(D)(2), and that respondent bear the costs of publication.