Monday, September 9, 2019

Ohio Considers Atheism Defense And Sex With Client In Two Bar Cases

Two bar discipline matters scheduled for argument tomorrow before the Ohio Supreme Court are summarized by Dan Trevas

Lorain County Bar Association v. James L. Lindon, Case no. 2019-0216
Lorain County

A Lorain County lawyer claims a proposed two-year suspension of his law license could potentially be doubled if he isn’t given credit for time served under suspension while he appealed a felony conviction.

James L. Lindon of Avon objects to a recommendation by the Board of Professional Conduct that the Ohio Supreme Court impose a two-year suspension with one year stayed with conditions. Lindon argues he already has served two years under an interim suspension while waiting for his disciplinary proceedings to reach the Supreme Court. He also objects to having to pay fees to participate in a substance abuse recovery program for lawyers, arguing that it’s connected to religion and that he is an atheist.

Lawyer Convicted of Pill Theft

In 2015, Lindon was a licensed pharmacist as well as an attorney. He was working as a pharmacist at the Cleveland Clinic when the hospital began to investigate him for possible prescription drug thefts. A security video observed him removing a bottle of hydrocodone tablets from a basket and dumping the bottle into his pocket. As a security guard approached, he put something from his pocket into his mouth. Lindon’s pockets were searched and three prescription pills were discovered.

Lindon was indicted in 2016 on three felony counts, including theft, drug possession, and tampering with evidence. A jury found him guilty on all three counts, and he was sentenced to two years of community control, mandatory drug testing, counseling, and treatment.

Lindon completed his community control and drug treatment, paid a $750 fine, and entered into a contract with the Ohio Lawyer’s Assistance Program (OLAP). His pharmacist license was permanently suspended in October 2016.

Suspension Begins as Conviction Appeal Starts

Based on his June 2016 conviction, the Supreme Court imposed an interim suspension on Lindon. It was the second time Lindon was sanctioned by the Court. He received a public reprimand in 2010 based on conduct that led the Michigan Supreme Court to reprimand him in 2009.

While under the interim suspension, Lindon appealed his conviction to the Eighth District Court of Appeals, arguing among other things, that the trial judge failed to hold a hearing on his motion to suppress the evidence against him in the drug theft case. In June 2017, a year after his conviction and suspension started, the Eighth District reversed the trial court, and remanded the case to the trial court to conduct the suppression hearing. The trial court scheduled the hearing for 11 months later, and in June 2018, ruled against Lindon’s motion to suppress. He again was found guilty of the crimes.

In the meantime, the Lorain County Bar Association filed a complaint in 2016 against Lindon with the Board of Professional Conduct for his violation of the rules governing the conduct of Ohio lawyers. The violations were in connection with his felony crimes. Following its customary protocol, the board delayed hearing Lindon’s matter until his criminal appeal had been resolved. The board didn’t schedule a disciplinary hearing until December 2018, six months after the trial court concluded the case, and Lindon ended his criminal conviction appeal.

Sanctions Unfair, Attorney Argues

The board found Lindon committed multiple rule violations, including engaging in conduct that adversely reflected on his fitness to practice law, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Based on sanctions imposed on lawyers who committed similar misconduct and had previous discipline, the board recommended a two-year suspension, with one year stayed on conditions.

Lindon and the bar association had proposed that Lindon receive credit for time served under the interim suspension, but the board hasn’t included the credit in its recommended sanction.

Lindon asks the Court to grant him credit for time served, noting that the time for his disciplinary hearing was delayed more than 600 days from September 2016 to June 2018 because the appeal of his conviction was pending.

He asserts had he not contested his conviction, his disciplinary hearing would have taken place about six months after his conviction. Had he received a two-year suspension with no time stayed, his suspension would have started in December 2016 and concluded in December 2018. As it stands, if the Court were to impose the two-year suspension now, he would be under a suspension that essentially began in 2016 and would continue until 2020 at the earliest, with the potential of reaching into 2021.

“This delay is a manifest injustice based on Respondent’s filing of an appeal — and winning the appeal because his constitutional rights were violated by the trial court,” Lindon’s brief stated.

The bar association’s brief also supports Lindon’s position that he be granted credit for time served.

Treatment Obligation Violates Religious Rights

Lindon raises the “establishment clause” of the First Amendment to the U.S. Constitution in his objection to the condition that he re-engage with OLAP and submit to random drug- and alcohol-screening. Based on Lindon’s objections to working with OLAP, the board has proposed that he find counseling from service providers of his choosing and that those counselors report his progress to OLAP.

Lindon states that he is an atheist and that OLAP programs are substantially based on Alcoholics Anonymous, and similar programs that have a religious aspect to them. He notes that AA’s 12-step program includes prayers and recitations from the Bible. He notes that while the board will allow him to use alternative counseling, he still will have to pay a $100 per month “administrative fee” to OLAP to comply with his contract. He maintains that it is unconstitutional to have a government body, the Court, in essence, collect a fee from a religious-based program. The bar association didn’t address Lindon’s concerns with his treatment objections.

Oral Argument Waived
The Lorain County Bar Association has waived its right to present oral arguments.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing James L. Lindon, pro se: 440.333.0011

Representing the Lorain County Bar Association: Daniel Cook, 440.695.8000


Akron Bar Association v. Matthew Fortado, Case no. 2019-0805
Summit County

A Summit County attorney admits it was wrong to engage in a long-term sexual relationship with a client, but argues a proposed one-year suspension with six months stayed is unreasonable based on sanctions imposed on other attorneys accused of the same misconduct.

The Board of Professional Conduct recommends the Ohio Supreme Court suspend Matthew Fortado for one year with six months stayed for violating the rule prohibiting Ohio lawyers from engaging in sexual activity with their clients unless there was a consensual sexual relationship prior to the attorney-client relationship. Fortado and the Akron Bar Association entered into a “consent to discipline” agreement in which Fortado would receive a one-year, fully stayed suspension. Both parties are asking the Supreme Court to adopt that position.

Long-Term Relationship Sours

Fortado was hired by a woman identified as M.S. in court records in 2011 to represent her in a civil case. Several months later, the two began an intimate relationship. The civil matter ended in 2012, but Fortado and M.S. continued their intimate relationship until August 2014. The romantic relationship ended when M.S. borrowed money from Fortado to transport her mother from North Carolina for a visit.

The two continued a friendship until 2016, and Fortado represented M.S. in two other civil matters. The friendship ended, though, when M.S. discharged Fortado as her attorney and filed a grievance against him with the Akron Bar Association.

Sanction Based on Prior Cases

When considering recommending a sanction to the Court, the board considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The board notes that Fortado was previously suspended for two years with one year stayed in 1996 for rule violations that were not at issue in this case. The board also took into consideration that Fortado was being charged with a single count of misconduct, cooperated with the proceedings, acknowledged his wrongdoing, and established that he didn’t act with a dishonest motive.

Fortado also produced 11 letters confirming his competency as an attorney. Summit County Probate Judge Elinore Marsh Stormer and former Summit County Prosecutor and Common Pleas Court Judge Michael T. Callahan testified on his behalf at his disciplinary hearing.

The board cited 11 other Supreme Court decisions regarding the sanctions imposed on lawyers who had sex with clients and determined that a one-year suspension with six months stayed based on the condition that Fortado commit no further misconduct was appropriate.

Attorney Opposes Sanction

Fortado objects to the sanction, noting that he and the bar association both agree that his conduct warrants a fully stayed suspension. Fortado argues the board relies on cases where attorneys were accused of multiple counts of misconduct that included more than prohibited sexual activity.

Fortado maintains his case is similar to Disciplinary Counsel v. Siewert, a 2011 decision, which the board cited in its list of cases it considered. In Siewert,the attorney received a fully stayed six-month suspension based on having a long-term sexual relationship with a client. The attorney had been disciplined many years before, just like Fortado, but also proved there was no dishonest motive and that he cooperated with the disciplinary proceedings and demonstrated a good reputation.

Fortado argues that he made no advances toward M.S., engaged in no coercion, and didn’t solicit her for sex. It instead was a three-year relationship, followed by a two-year friendship. Unlike many of the other cases cited by the board, M.S. was never confronted with the dilemma of accepting her attorney’s advances or risking having her legal representation compromised, Fortado concludes.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(mike Frisch)

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