[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Disciplinary Counsel v. Thomas, Slip Opinion No. 2016-Ohio-1582.]

NOTICE This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2016-O HIO -1582
D ISCIPLINARY C OUNSEL v. T HOMAS . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Disciplinary Counsel v. Thomas, Slip Opinion No. 2016-Ohio-1582.] Attorneys—Misconduct—Attorney convicte d of felony theft offenses and misdemeanor falsification offenses for misappropriating funds from vulnerable, elderly, court-appointed clients and filing false inventories with the probate court—Illegal acts that reflect adversely on lawyer’s honesty— Conduct involving fraud, deceit, and misrepresentation—Conduct prejudicial to the administration of justice—Knowingly making false statements to a tribunal—Knowingly offering false evidence—Indefinite suspension—Reinstatement conditi oned on restitution, substance-abuse treatment, and other requirements. (No. 2015-1001—Submitted November 17, 2015—Decided April 20, 2016.)
O N C ERTIFIED R EPORT by the Board of Professional Conduct of the Supreme Court, No. 2014-081.S UPREME C OURT OF O HIO

2 _______________________ Per Curiam. {¶ 1} Respondent, James Willia m Thomas Jr., formerly of Eaton, Ohio, Attorney Registration No. 0074051, was admitted to the practice of law in Ohio in 2001. We suspended Thomas’s license on an interim basis, effective July 22, 2014,
after he was convicted of two counts of theft and one count of theft from theelderly—all felonies committed against individuals for whom he served as a courtappointed guardian—and three misde meanor counts of falsification. See In re
Thomas , 140 Ohio St.3d 1224, 2014-Ohio-3174, 15 N.E.3d 871. {¶ 2} In an October 29, 2014 complaint, relator, disciplinary counsel, charged Thomas with multiple violations of the Rules of Professional Conduct arising from his felony convictions. Thom as admitted each of the allegations in his answer and entered into joint stipulations of fact, misconduct, and aggravating and mitigating factors. {¶ 3} A panel of the Board of Professi onal Conduct grante d the parties’ motion to waive the hearing and adopted the parties’ stipulations. The panel also adopted the parties’ recomme ndation that Thomas be indefinitely suspended from the practice of law in Ohio. In additi on, the panel recommended that Thomas be
credited for the time served under his in terim felony suspension and that his reinstatement be conditioned on completion of his term of incarceration, payment of restitution, compliance with all terms and conditions of his criminal probation, completion of an approved treatment pr ogram for substance abuse and addiction, and ongoing treatment for his drug addi ction. The board adopted the panel’s findings of fact and misconduct, aggrava ting and mitigating fact ors, and sanction, with some modifications to the requirement for restitution. {¶ 4} Following a remand by this court fo r additional consideration of the
recommended conditions for Thomas’s reinst atement, the board issued a revised recommendation regarding Thomas’s restitution obligation.January Term, 2016

3 {¶ 5} We adopt the board’s findings of fact and misconduct and its recommended sanction, as amended by th e board’s supplemental report and recommendation. We do not, however, cr edit Thomas for the time served under his interim felony suspension.
Misconduct {¶ 6} Thomas was charged in an April 28, 2014 bill of information with two third-degree-felony counts of theft in violation of R.C. 2913.02(A)(3), one fourthdegree-felony count of theft from an elderly or disabled person in violation of R.C. 2913.02(A)(3), and three first-degree-misde meanor counts of knowingly making a false statement or knowingly swearing or affirming the truth of a previously made false statement in violation of R.C. 2921.13( A)(10). Thomas pleaded no contest to the charges, which arose out of his theft of funds from four individuals for whom he served as a court-appointed guardian a nd his subsequent attempts to conceal the thefts by filing false inventories with th e Preble County Probate Court. He was sentenced to a four-and-one-half-year prison term and ordered to make restitution of $208,095.15, to be distributed to his former clients as follows: $115,112.75 for the benefit of J.S., 1 $72,149.40 for the benefit of E.T., $17,487 for the benefit of R.B., and $3,346 for the benefit of K.O. {¶ 7} Based on the parties’ stipulati ons and supporting documents, the board found that by misappr opriating funds from individuals for whom Thomas was appointed to serve as a guardian, he violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness), 8.4(c) (prohi biting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or mis representation), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prej udicial to the administration of justice). The board also found that his filing of fa lse inventories with the Preble County

1 The guardian appointed to represent the estate of J.S. settled J.S.’s claims against Thomas and received $89,950 from his profession al-liability carrier in 2015.S UPREME C OURT OF O HIO

4 Probate Court to conceal his theft of f unds from his wards violated Prof.Cond.R. 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), 3.3(a)(3) (prohibiting a lawyer from knowingly offering evidence that the lawyer knows to be false), 8.4(b) , 8.4(c), and 8.4(d). No objections have
been filed. {¶ 8} We adopt these findings of fact and misconduct.
Sanction {¶ 9} When imposing sanctions for attorney misconduct, we consider relevant factors, including the ethical duties that the lawyer violated and the 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. In making a final determination, we also weigh evidence of the aggravating and mitigating factors set forth in Gov.Bar R. V(13)(A) through (C). See , e.g. , Disciplinary Counsel v. Broeren , 115 Ohio St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. {¶ 10} The parties stipulated and the board found that two aggravating factors are present. Thomas acted with a dishonest or selfish motive by using the money that he misappropriated from his wards primarily to maintain his addiction to ephedrine and to compensate for the loss of law-practice income occasioned by
that addiction. See Gov.Bar R. V(13)(B)(2). He engaged in multiple offenses, stealing funds from at least four of his wards on multiple occasions over a period of more than six years and attempting to conceal his theft of those funds by filing
false inventories with the probate court on at least three occasions. See Gov.Bar R. V(13)(B)(4). In addition to these aggravating factors, we also find that Thomas engaged in a pattern of misconduct th at harmed vulnerable clients by misappropriating more than $200,000 over a peri od of six years from the wards he was court-appointed to protect. See Gov.Bar R. V(13)(B)(3) and (8). {¶ 11} The board also adopted the parties’ stipulations with respect to the applicable mitigating factors. It found that Thomas did not have a prior disciplinaryJanuary Term, 2016

5 record 2 and that he had made a full and free disclosure to the board and demonstrated a cooperative attitude to ward the proceedings, fully admitting his wrongdoing in his answer and in his agreed stipulations. See Gov.Bar R. V(13)(C)(1) and (4). The board accorded mitigating effect to his good character and reputation apart from the charged mis conduct and to the imposition of other penalties and sanctions, including his four-and-one-half-year prison sentence and
criminal restitution order. See Gov.Bar R. V(13)(C)(5) and (6). {¶ 12} Consistent with the stipulations, the board also determined that Thomas had made a timely, good-faith effort to make restitution or to rectify the consequences of his misc onduct. This finding was based on an $89,950 settlement paid to the guardian of J.S. by Thomas’s professional-liability-insurance carrier, a refund of $1,650 paid by Thomas’s father to two other clients who were not identified in these proceedings, and an ag reement that Thomas’s father would make monthly restitution payments of $750, to be apportioned among the three other
identified victims of Thomas’s misconduct. See Gov.Bar R. V(13)(C)(3). We reject this finding because the effort to make restitution was not timely and because J.S.’s new guardian had to resort to a la wsuit and obtain a default judgment against Thomas, ultimately accepting a substantially reduced amount from Thomas’s professional-liability-insurance carrier. Moreover, there is no evidence that Thomas has made any effort to make restitution to the other victims of his misconduct. On the contrary, th e evidence demonstrates that Thomas’s father has voluntarily agreed to make restitution payments of $750 per month for two years, with the payments to be apportioned to the victims of Thomas’s misconduct. But those payments will only account for $18,000 of Thomas’s court-ordered obligation, which currently exceeds $90,000.

2 During the pendency of this action, however, we suspended Thomas’s license to practice based on his failure to timely register for the 2015-2016 biennium. In re Attorney Registration Suspension of Thomas , 143 Ohio St.3d 1509, 2015-Ohio-4567, 39 N.E.3d 1277.S UPREME C OURT OF O HIO

6 {¶ 13} The board adopted the parties’ sti pulation that Thomas’s diagnosis of an addiction to ephedrine was a mitigating factor because (1) the addiction significantly contributed to his misconduct, (2) he successfully completed a fiveweek residential treatment program afte r his criminal conviction but before his sentence, and (3) his addictive behaviors ar e less likely to recur if he remains in

recovery. {¶ 14} The board recommends that Thomas be indefinitely suspended from the practice of law with credit for the time he has served under his interim felony suspension and that his reinstatement to the practice of law be subject to the following conditions: (1) completion of hi s period of incarceration, (2) payment of
restitution for the benefit of E.T. ($72,149.40), R.B. ($17, 487), and K.O. ($3,346), (3) compliance with all terms and c onditions of his criminal probation, (4) successful completion of a substance-a buse and addiction- treatment program approved by the Ohio Lawyers Assistance Program (“OLAP”), and (5) participation in an addiction-treatment program up to and through any attempt to
seek reinstatement. {¶ 15} In support of this sanction, the boa rd cites two cases in which we have indefinitely suspended attorneys w ho misappropriated funds while serving in positions of trust. While serving as a c ourt-appointed guardian, one attorney made unauthorized withdrawals of more than $20,000 from his ward’s account, used the funds to pay his personal expenses, made fa lse statements in documents filed with the probate court, and pleaded guilty to one fifth-degree-felony charge of theft. Disciplinary Counsel v. Zapor , 127 Ohio St.3d 372, 2010-Ohio-5769, 939 N.E.2d 1230, ¶ 3-4. The aggravating and mitigating factors in Zapor were comparable to those present here, except that the parties did not stipulate and Zapor failed to prove that his alcohol-abuse and gambling probl ems contributed to his misconduct. Id . at ¶ 7-9. Because he had confessed to th e misappropriation, he seemed genuinely contrite, and his testimony suggested that he had ta ken steps to resolve hisJanuary Term, 2016

7 substance-abuse and gambling problems, we adopted the board’s recommended sanction of an indefinite suspension with no credit for time served under his interim felony suspension. Id . at ¶ 12. We also conditioned his reinstatement on the extension of his OLAP contract and his comp liance with the terms of that contract.
Id

. {¶ 16} And in Disciplinary Counsel v. Anthony , 138 Ohio St.3d 129, 2013- Ohio-5502, 4 N.E.3d 1006, we indefinitely suspended Anthony for misappropriating at least $118,000 from his empl oyer to pay his personal expenses
and to maintain his gambling addiction. Id . at ¶ 4. Although Anthony could not demonstrate that his pathological gambling disorder was a mitigating factor because he had only begun treatment three m onths before his disciplinary hearing, we nonetheless accorded it some mitigating effect. Id . at ¶ 13. That factor,
combined with his disclosure of his misconduct to the disciplinary board, his cooperation in the disciplinary investig ation, and his criminal sentence for his resulting grand-theft conviction, led us to adopt the board’s recommended sanction of an indefinite suspension. Id . at ¶ 13, 18-19. {¶ 17} Having considered Thomas’s misconduct, the applicable aggravating and mitigating factors, and the sanctions imposed for comparable misconduct, we agree that the appropriate sanction in this case is an indefinite suspension. But given the magnitude of hi s theft from the vulnerable people he was appointed to protect, his pattern of misconduc t over a period of more than six years, and his failure to make full restitution, we decline to grant him credit for the time served under his interim felony suspension. {¶ 18} Accordingly, James William Thomas Jr. is indefinitely suspended from the practice of law in Ohio and, in a ddition to the requirements of Gov.Bar R. V(25), his reinstatement shall be conditi oned upon his (1) completion of his period of incarceration, (2) payment of restitution for the benefit of former clients E.T. ($72,149.40), R.B. ($17,487), and K.O. ($3,346) as set forth in the restitution orderS UPREME C OURT OF O HIO

8 in his criminal case, (3) compliance with all terms and conditions of his criminal probation, (4) successful completion of an OLAP-approved substance-abuse and addiction-treatment pr ogram, (5) execution of an OLAP contract for a term to be determined by OLAP, and (6) full compliance with all treatment recommendations
of OLAP and his treatin g professionals. Costs are taxed to Thomas. Judgment accordingly.
P FEIFER , O’D ONNELL , K ENNEDY , and F RENCH , JJ., concur.
O’C ONNOR , C.J., and L ANZINGER and O’N EILL , JJ., dissent and would permanently disbar the respondent.

_________________ Scott J. Drexel, Disciplinary Counsel, for relator. Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, for respondent.

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