[Cite as Cleveland Metro. Bar Assn. v. Nance, 124 Ohio St.3d 57, 2009-Ohio-5957.] 

CLEVELAND METROPOLITAN BAR ASSOCIATION v. NANCE. 

[Cite as Cleveland Metro. Bar Assn. v. Nance, 

124 Ohio St.3d 57, 2009-Ohio-5957.] 

Attorneys at law — Misconduct — Conduct adversely reflecting on fitness to 

practice law — One-year suspension with conditional six-month stay. 

(No. 2009-1145 — Submitted August 11, 2009 — Decided November 19, 2009.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 08-070. 

__________________ 

Per Curiam. 

{¶ 1} Respondent, Donald S. Nance of Cleveland, Ohio, Attorney 

Registration No. 0034086, was admitted to the practice of law in Ohio in 1979. 

{¶ 2} The Board of Commissioners on Grievances and Discipline has 

recommended that we suspend respondent’s license to practice for one year, but 

stay six months of the suspension on conditions, including that he complete 

additional legal training in bankruptcy practice and law-practice management and 

remit or resolve all fines and costs ordered as a result of his misfilings on behalf 

of bankruptcy clients. The board’s recommendation is based on findings that 

respondent repeatedly failed to comply with bankruptcy court filing requirements. 

Those failures, in addition to his failures to appear as ordered and his concomitant 

failure to comply with orders to disgorge fees and pay assessed fines, led to 

contempt citations. We agree that respondent’s failings reflected adversely on his 

fitness to practice law and accept the board’s recommendation of a one-year 

license suspension, stayed in part. 

{¶ 3} Relator, Cleveland Metropolitan Bar Association, charged 

respondent with professional misconduct, including violations of DR 1-102(A)(6) 
SUPREME COURT OF OHIO

2

and its successor, Prof.Cond.R. 8.4(h) (both prohibiting conduct that adversely 

reflects on a lawyer’s fitness to practice law).1

 A panel of three board members 

heard the case, including the parties’ stipulations to the cited misconduct, and 

recommended the one-year suspension and six-month conditional stay. The board 

adopted the panel’s findings of misconduct and recommendation. 

{¶ 4} The parties have not objected to the board’s report. 

Misconduct 

Count I 

{¶ 5} Respondent began taking bankruptcy cases in 1981. In April 2005, 

he filed a Chapter 13 bankruptcy petition on behalf of a client in the United States 

Bankruptcy Court for the Northern District of Ohio. In an electronically filed feedisclosure statement, respondent mistakenly represented to the court that he had 

paid the requisite filing fee when, in truth, his payment had not been accepted. 

On motion of the bankruptcy trustee, the court ordered respondent to disgorge 

$200 in paid attorney fees. Although respondent paid the missing filing fee later 

that April, he then failed for months to comply with the order to disgorge fees. 

{¶ 6} In late December 2005, after respondent failed without explanation 

to appear and show cause why he should not be held in contempt, the court 

granted the trustee’s motion and held respondent in civil contempt. The court 

allowed him ten days to purge the contempt but then began assessing a fine of $10 

per day. Respondent has since complied with the order to disgorge fees, and on 

December 5, 2008, the court ordered that his outstanding fines and costs, which at 

that time exceeded $7,000, be held in abeyance. 

 

1. Relator charged respondent with misconduct under applicable rules for acts occurring before 

and after February 1, 2007, the effective date of the Rules of Professional Conduct, which 

supersede the Disciplinary Rules of the Code of Professional Responsibility. Although both the 

former and current rules are cited for the same acts, the allegations comprise a single continuing 

ethical violation. Disciplinary Counsel v. Freeman, 119 Ohio St.3d 330, 2008-Ohio-3836, 894 

N.E.2d 31, ¶ 1, fn. 1. 
January Term, 2009 

3

{¶ 7} The parties stipulated and the board found that respondent had 

violated DR 1-102(A)(6) and its successor, Prof.Cond.R. 8.4(h), as charged in 

Count I. We accept these findings of misconduct. 

Counts II and III 

{¶ 8} Respondent also conceded having mishandled two Chapter 13 

bankruptcy cases filed in 2006, as alleged in Counts II and III. Respondent failed 

to file on behalf of each client the required signed form setting forth the “Rights 

and Responsibilities of Chapter 13 Debtors and Attorneys.” According to the 

stipulations, the failure to file this form, which reported the preliminary attorneyfee payment by the debtor and the fees anticipated upon confirmation of the 

reorganization plan, precludes the allowance of attorney fees other than by formal 

itemized application to the court. 

{¶ 9} The same trustee appointed to oversee the Count I bankruptcy filed 

a motion in both the Count II and III cases for an order requiring respondent to 

disgorge paid attorney fees. The court ordered respondent in August 2006 to 

disgorge $500 to the debtor in Count II and in January 2007 to disgorge $400 to 

the debtor in Count III. When respondent failed to pay, the trustee moved the 

court to cite him for civil contempt. Respondent again failed without explanation 

to appear at hearings on the motions, and the court granted both. In March 2007, 

the court assessed a $25 fine for each day that respondent failed to remit fees to 

the debtor’s estate in Count II. In October 2007, after denying respondent’s 

requests for relief, the court assessed a $25 fine for each day that he failed to 

remit fees to the debtor’s estate in Count III. 

{¶ 10} Respondent eventually paid $500 and $400, respectively, to the 

debtors’ estates. On December 2, 2008, upon respondent’s motion to reinstate his 

filing privileges, the court ordered the fines and costs assessed in the Count II 

debtor’s case, which at that time exceeded $12,000, to be held in abeyance. The 

record does not reflect whether a similar order was issued relative to the more 
SUPREME COURT OF OHIO

4

than $6,500 in fees and costs assessed in the Count III debtor’s case, which 

ultimately resulted in a Chapter 7 discharge through the efforts of successor 

counsel. 

{¶ 11} As to each of Counts II and III, the parties stipulated and the board 

found that respondent had violated DR 1-102(A)(6) and its successor, 

Prof.Cond.R. 8.4(h). We accept these findings of misconduct. 

Sanction 

{¶ 12} In recommending a sanction for this misconduct, the board 

considered the aggravating and mitigating factors listed in BCGD Proc.Reg. 

10(B). As an aggravating factor under BCGD Proc.Reg. 10(B)(1)(a), the parties 

acknowledged prior discipline imposed for respondent’s misuse of his client trust 

account – a six-month suspension from practice on July 9, 2008, stayed on 

conditions including no misconduct during the stay. See Cuyahoga Cty. Bar 

Assn. v. Nance, 119 Ohio St.3d 55, 2008-Ohio-3333, 891 N.E.2d 746. The parties 

also stipulated that respondent had committed multiple offenses, an aggravating 

factor under BCGD Proc.Reg. 10(B)(1)(d). Both considerations weigh against 

respondent. 

{¶ 13} Though he has since regained electronic-filing privileges, the 

bankruptcy court had revoked those privileges along with ordering the sanctions 

for respondent’s misfilings and contempt. The parties stipulated to the mitigating 

effect of these orders under BCGD Proc.Reg. 10(B)(2)(f) (recognizing the 

mitigating effect of penalties or sanctions imposed outside the disciplinary 

system). The parties also stipulated that respondent’s clients were not prejudiced 

by his misconduct. We accept these factors as mitigating. 

{¶ 14} Contrary to the parties’ stipulation, however, we do not see any 

mitigation in the fact that the same bankruptcy trustee moved for sanctions against 

respondent in each of the underlying cases. Nothing in the record suggests that 

the trustee acted improperly. Respondent also referred to his having health 
January Term, 2009 

5

problems and a mental disability during the events at issue; however, he did not 

establish that either condition was mitigating as having contributed to cause his 

misconduct. Cf. BCGD Proc.Reg. 10(B)(2)(g)(i) and (ii). 

{¶ 15} The board also expressed misgivings about respondent’s inability 

to reconcile events to which he had initially stipulated but could not clearly recall 

at the hearing. But rather than find respondent untruthful, the board inferred only 

that he was ill prepared for the hearing. The board also concluded that respondent 

did not appreciate the professional irresponsibility in failing to appear at his own 

contempt hearings. The board thus found as an aggravating factor under BCGD 

Proc.Reg. 10(B)(1)(g) that respondent had refused to acknowledge the wrongful 

nature of his conduct. 

{¶ 16} As to his failure to comply with the various sanctions ordered by 

the bankruptcy court, respondent cited his declining practice and lack of financial 

resources to pay. In fact, he did not repay the necessary attorney fees for almost 

three years after the first disgorgement order. Respondent’s contempt fines 

remain outstanding, and he did not know whether he still owed them, given the 

orders holding some or all of the fines in abeyance. 

{¶ 17} The board also considered sanctions imposed in similar cases: 

{¶ 18} “Relator is seeking a 12 month suspension, with 6 months stayed 

on the conditions that respondent commits no further misconduct during the 

period of the stayed suspension and attends 6 additional CLE (continuing legal 

education) hours in law practice management or bankruptcy. 

{¶ 19} “Respondent asks that any additional sanction be stayed in its 

entirety. 

{¶ 20} “Relator cites Mahoning Cty. Bar Assn. v. Olivito, 110 Ohio St.3d 

64, 2006-Ohio-3564 [850 N.E.2d 702], in support of its proposed sanction. Even 

though Olivito’s actions occurred while representing bankruptcy clients, the panel 
SUPREME COURT OF OHIO

6

finds that Cincinnati Bar Assn. v Heisler, 119 Ohio St. 3d 573, 2008-Ohio-5221 

[895 N.E.2d 839], is more on point." 

{¶ 21} Heisler defaulted on court-ordered child-support payments, but as 

the board observed, his failure to pay child support was largely the result of his 

poor financial situation. We therefore suspended him from practice for one year 

but credited toward that suspension the time his license had already been under 

suspension pursuant to Gov.Bar R. V(5) (interim suspension upon notice of 

default on child support). We also conditioned his reinstatement upon compliance 

with Cincinnati Bar Assn. v. Heisler, 116 Ohio St.3d 1448, 2007-Ohio-6842, 878 

N.E.2d 27 (our order finding Heisler in contempt for his failure to pay costs in a 

previous unrelated disciplinary proceeding). 

{¶ 22} The parties have not objected to the board’s recommendation. And 

in the absence of any precedent more analogous, Heisler is authority for imposing 

a sanction of less than a one-year actual suspension when a lawyer’s financial 

distress is a major factor in the lawyer’s failure to pay funds under court order. 

The recommended one-year suspension with a six-month stay is appropriate, 

provided that respondent commit no further misconduct, complete six hours of 

CLE in law-practice management and bankruptcy practice, in addition to the 

general requirements of Gov.Bar R. X, and remit or resolve the payment of all 

fines and costs with the court. 

{¶ 23} Respondent is therefore suspended from the practice of law in 

Ohio for one year; however, the last six months of the suspension are stayed on 

the conditions that respondent commit no further misconduct, complete six hours 

of CLE in addition to the general requirements of Gov.Bar R. X in bankruptcy 

practice and law-practice management, and remit or resolve the payment of all 

fines and costs assessed by the bankruptcy court. If respondent fails to comply 

with the conditions of the stay, the stay will be lifted and respondent will serve the 

entire one-year suspension. 
January Term, 2009 

7

{¶ 24} Costs are taxed to respondent. 

Judgment accordingly. 

 MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,

LANZINGER, and CUPP, JJ., concur. 

 O’DONNELL, J., concurs but would stay the entire suspension. 

__________________ 

 Heather M. Zirke, Bar Counsel, and David O. Simon, for relator. 

 James Alexander Jr., for respondent. 

______________________