[Cite as Disciplinary Counsel v. Nicks , 124 Ohio St.3d 460, 2010-Ohio-600.]

D ISCIPLINARY C OUNSEL v . N ICKS . [Cite as Disciplinary Counsel v. Nicks , 124 Ohio St.3d 460, 2010-Ohio-600.] Attorneys at law — Misconduct — Multiple disciplinary violations — Chemical dependence — Two-year suspension, partially stayed on conditions. (No. 2009-1544 — Submitted November 4, 2009 — Decided February 25, 2010.)
O N C ERTIFIED R EPORT by the Board of Commissioners on Grievances and Discipline of the Supreme Court, No. 09-016.

__________________ Per Curiam. {¶ 1} Respondent, J. Michael Nicks of Galena, Ohio, Attorney Registration No. 0073608, was admitted to th e practice of law in Ohio in 2001. Relator, Disciplinary Counsel, and res pondent stipulated to the facts and misconduct alleged in relator’s complaint. A three-memb er panel of the Board of Commissioners on Grievances and Discipline also heard testimony on the cause, issued findings of fact and conclusions of law, and made a recommendation. The board adopted the panel’s findings and al so adopted the panel’s recommendation that we suspend respondent’s license to pr actice law for two years, staying the last
18 months on conditions. {¶ 2} The parties have not objected to the board report; we ordered respondent to show cause why we should not adopt the board’s recommendation. On review, we find that respondent committed the cited violations of the Rules of
Professional Conduct and that the r ecommended sanction is appropriate.
Misconduct
Count I – The Seibel Matter {¶ 3} In November 2006, Larry Seibel hired respondent to represent him in the administration of his mother’s, Do rothy Seibel’s, esta te. Respondent and Seibel entered into a fee agreement by which respondent would receive threeS UPREME C OURT OF O HIO

2 percent of the value of the Seibel estate. The agreement also required probate court approval prior to the payment of any attorney fees. {¶ 4} In February 2007, respondent asked Seibel for a check for one half of respondent’s attorney fees, and Seib el provided respondent with a check for $7,428.32. Respondent immediately cashed the check without obtaining the required approval from the pr obate court and later filed an application for payment of attorney fees, asking the cour t to approve the full amount that he had already been paid, $7,428.32. The court issued an order, but declined to approve the full amount and ordered that responde nt be paid only $5,000. After learning that the court had approved only $5,000 of the $7,400 fee request, respondent did not inform Seibel, nor did he make a refund to the estate. {¶ 5} Respondent met with Seibel again on June 17, 2007, to resolve the estate tax return. Seibel signed the esta te tax return and gave respondent a check for the payment of the estate taxes, but respondent did not file the estate tax return, nor did he forward the check for payment of the estate taxes. As a result, the estate was assessed a $2,834.75 late-p ayment penalty and $657.04 in interest charges. {¶ 6} At the same June 2007 meeting, respondent asked Seibel for a second advance on his attorney fees, and Seibel gave him a check for $3,714.16. Again, respondent did not file with the pr obate court the requi red application for approval of the payment of those attorney fees prior to accepting them. Instead, he immediately endorsed and cashed the check. {¶ 7} During respondent’s representation of Seibel, there were several
times when he failed to return Seibel’s phone calls. In addition, the probate court issued two reminders for respondent to file an accounting on the estate. After the probate court issued a notice of past-due account to bot h respondent and Seibel on December 13, 2007, respondent met with Seibel to discuss the matter. At the time of this meeting, respondent’s law license had been suspended for failure toJanuary Term, 2010

3 comply with attorney-registration re quirements for the 2007-2009 biennium, but respondent did not inform Seibel of the suspension. 1 Rather, respondent advised
Seibel on how to obtain an extension of time to file his overdue account. Respondent admitted that as of the date of the hearing before the panel, he had not repaid to the estate the fees taken wit hout probate court appr oval or the interest and late-payment penalty that ha d been charged to the estate. {¶ 8} Respondent stipulated and the boa rd concluded that respondent’s
conduct in Count I violated the followi ng Rules of Profe ssional Conduct: 1.3 (a lawyer shall act with reasonable dili gence and promptness in representing a client), 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal), 8.4(c) (a lawyer shall not engage in conduct involving fraud, deceit, dishonesty, or misrepresentation), 8.4(d) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice), and 8.4(h) (a lawyer shall not engage in conduct that adversely reflects upon fitness to practice law). {¶ 9} Although respondent stipulated th at his conduct also violated Prof.Cond.R. 1.1 (a lawyer sha ll provide competent represen tation to a client), the board concluded that respondent’s conduct did not violate that rule. The board noted, “ ‘Prof.Cond.R. 1.1 requires a lawyer to “provide competent representation to a client.” “Competent representation” under the rule requires “the legal knowledge, skill, thoroughness, and prep aration reasonably necessary for the representation,” ’ ” quoting Cincinnati Bar Assn. v. Lawson, 119 Ohio St.3d 58, 2008-Ohio-3340, 891 N.E.2d 749, ¶ 46. The board also noted that this court has also stated that “competent representation” means that “the lawyer must apply the knowledge, skill, thoroughness, and prep aration reasonably necessary for the representation.” (Emphasis added.) Disciplinary Counsel v. Lentes , 120 Ohio St.3d 431, 2008-Ohio-6355, 900 N.E.2d 167, ¶ 13.

1. Respondent was suspended on December 3, 2007, and his law license was reinstated on April 29, 2008.S UPREME C OURT OF O HIO

4 {¶ 10} The board concluded that Prof .Cond.R. 1.1 focuses on whether a lawyer is competently prepared to handl e a legal matter and found that respondent possessed the requisite experience to be re garded as competent to handle probate matters. Moreover, the board concluded that there was no evidence that any of the work completed by respondent in th e Seibel estate was not prepared in accordance with applicable legal standards. We agree and accept these findings regarding misconduct.
Count II – The Graham Matter {¶ 11} In July 2006, Donald Graham hired respondent to represent him in
the administration of his wife’s estate and paid him a $500 fee. On January 13, 2008, the probate court issued a citation requesting that re spondent file a report of distribution and evidence of the recording of a certificate of transfer. The court
scheduled a status conference on Febr uary 20, 2008, to address the issue, but respondent failed to respond to the court’s citation and failed to appear at the status conference. As a result, the cour t scheduled a show-cause hearing in March 2008, at which he failed to appear. The pr obate court issued an order in March 2008 finding respondent in contempt. In January 2009, respondent filed a motion to reopen the estate, and the probate court approved the filing of the report of distribution and found that respondent ’s actions cured the contempt. {¶ 12} Respondent stipulated and the boa rd concluded that respondent’s
conduct in Count II violated Prof.Cond.R. 1.3, 8.4(d), and 8.4(h). {¶ 13} Again, although respondent sti pulated that the conduct also violated Prof.Cond.R. 1.1, the board concl uded that respondent’s conduct did not violate the rule. The board stated that it was unable to conclude by clear and convincing evidence that respondent vi olated Prof.Cond.R. 1.1 simply by his failure to timely file the required report of distribution. We agree and accept these findings regarding misconduct.
SanctionJanuary Term, 2010

5 {¶ 14} When imposing sanctions for attorney misconduct, we consider relevant factors, including the duties vi olated by the lawyer in question and sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. Before making a final determination, we also weigh evidence of the aggravating and mitigating factors
listed in Section 10 of the Rules and Regulations Governing Procedure on Complaints and Hearings Before the Bo ard of Commissioners on Grievances and Discipline (“BCGD Proc.Reg.”). Lake Cty. Bar Assn. v. Troy, 121 Ohio St.3d 51, 2009-Ohio-502, 901 N.E.2d 809, ¶ 11. {¶ 15} We have identified respondent's br eaches of duties owed to his clients, the legal profession, and the judi cial system. In respondent’s case, the board found two aggravating factors. The board found that respondent’s misconduct involved multiple offenses, BC GD Proc.Reg. 10(B)(1)(d), and that respondent failed to make restitution, 10(B)(1)(i). {¶ 16} The board found three mitigating factors. First, the board found that respondent has no prior disciplinar y record, BCGD Proc.Reg. 10(B)(2)(a). Second, the board found that respondent cooperated fully in the disciplinary process, BCGD Proc.Reg. 10(B)(2)(d). Fi nally, the board found that respondent’s chemical dependence was a mitigating factor, BCGD Proc.Reg. 10(B)(2)(g), because the evidence supported the following requisites of that rule: (1) a diagnosis of a chemical dependence by a qualified health-care professional or alcohol/substance-abuse counselor, (2) a determination that the chemical dependence contributed to cause the misc onduct, (3) a certification of successful ongoing compliance with an approved treatment program, and (4) a prognosis from a qualified alcohol/substa nce-abuse counselor that respondent will be able to return to competent, ethical professiona l practice under specified conditions. The board further found that respondent fully acknowledged the wrongful nature ofS UPREME C OURT OF O HIO

6 his conduct and fully accepted responsib ility for the consequences of his
misconduct. {¶ 17} As for respondent’s chemical depe ndence, the parties stipulated that respondent was diagnosed as suffer ing from chemical dependence based on his addiction to marijuana, alcohol, a nd cocaine. Respondent had completed a partial hospitalization program and an in tensive outpatient chemical-dependence program. Respondent had also entered into a five-year contract with the Ohio Lawyers Assistance Program (“OLAP”). Respondent is in compliance with his contract and currently in treatment with psychologist John A. Tarpey, Ph.D. Moreover, respondent entered a one-year aftercare program. {¶ 18} Respondent had a relapse in Dece mber 2008, but had maintained a sustained, uninterrupted period of sobr iety from December 12, 2008, to at least the time of the stipulations. Dr. Tarpey and Carolyn Sellers, a licensed social worker and chemical-dependence counselor , stated that respondent’s chemical dependence contributed to the cause of his misconduct, that respondent’s prognosis was positive, and that he could return to the competent, ethical practice of law so long as he continued his tr eatment, complied with his OLAP contract, and maintained his sobriety. In additi on, Stephanie Krznarich, a licensed social worker with OLAP, testified in mitig ation that respondent’s compliance was “going very, very well.” She also tes tified that in her opinion, respondent’s chemical dependence contribut ed to cause his misconduct. She also testified that with continued treatment, medications, and monitoring, he should be able to successfully return to the practice of law. {¶ 19} The board adopted the stipulated sanction that respondent’s license to practice law be suspended for 24 months with the last 18 months stayed on the following conditions: (1) that respondent remain in compliance with his five-year OLAP contract, (2) that respondent pay $9,634.27 in restitution to the Seibel estate or the beneficiaries thereof, as ordered by the Probate Court of LickingJanuary Term, 2010

7 County, (3) that respondent’s practice be monitored in accordance with Gov.Bar R. V(9) by an attorney designated by relator for the period of respondent’s stayed suspension, (4) that respondent not engage in any further misconduct during the entire 24-month suspension, and (5) that respondent pay the costs of the prosecution of this action.
Review {¶ 20} Regarding sanctions in similar cases, we find Disciplinary Counsel
v. Greco , 107 Ohio St.3d 155, 2005-Ohio-6045, 837 N.E.2d 369, to be instructive. In that case, the attorney neglected clients, deceived clients, and was slow to refund unearned retainers. Greco experi enced similar chemical dependence and also successfully completed treatment programs and cooperated with the disciplinary process. We suspended the la wyer's license for two years but stayed 18 months of the suspension on the condition that the lawyer receive assistance in his recovery from chemical dependence. {¶ 21} Accordingly, we accept the board’s recommendation. Respondent is therefore suspended from the practice of law in Ohio for two years, with 18 months of the suspension stayed on the conditions listed above . If respondent fails to comply with the terms of the st ay, the stay will be lifted, and respondent will serve the entire two years. Costs are taxed to respondent. Judgment accordingly.
M OYER , C.J., and P FEIFER , L UNDBERG S TRATTON , O’C ONNOR , O’D ONNELL , L ANZINGER , and C UPP , JJ., concur.

__________________ Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger, Assistant Disciplinary Counsel, for relator. J. Michael Nicks, pro se.

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