[Cite as Mahoning Cty. Bar Assn. v. Vivo, 135 Ohio St.3d 82, 2012-Ohio-5682.] 

MAHONING COUNTY BAR ASSOCIATION v. VIVO. 

[Cite as Mahoning Cty. Bar Assn. v. Vivo, 135 Ohio St.3d 82, 

2012-Ohio-5682.] 

Attorneys—Misconduct—Accepting a case the lawyer is not qualified to handle—

Neglecting an entrusted legal matter—Failure to cooperate—One-year 

suspension, all stayed on condition. 

(No. 2011-0299—Submitted June 6, 2012—Decided December 6, 2012.) 

ON CERTIFIED REPORT by the Board of Commissioners on Grievances and 

Discipline of the Supreme Court, No. 10-074. 

____________ 

Per Curiam. 

{¶ 1} Respondent, James Vivo of Canfield, Ohio, Attorney Registration 

No. 0071891, was admitted to the Ohio bar in 2000. The Board of 

Commissioners on Grievances and Discipline recommends that we suspend 

Vivo’s license to practice law for one year with the entire suspension stayed on 

condition. We adopt the findings of professional misconduct and the 

recommended sanction. 

Background 

{¶ 2} Relator, Mahoning County Bar Association, filed a complaint 

against Vivo on August 16, 2010. The complaint charged Vivo with several 

violations of the Rules of Professional Conduct stemming from a lawsuit filed 

against Vivo’s clients, Michael and Esther Hayes. The complaint also charged 

Vivo with failing to cooperate with relator in its grievance investigation. 

{¶ 3} On November 29, 2010, after several unsuccessful attempts to 

obtain information from Vivo, relator filed a motion for default judgment. The 

board appointed a master commissioner to consider relator’s motion. The master 
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commissioner issued a report finding Vivo in default and made findings of fact, 

conclusions of law, and a recommended sanction, all of which the board adopted. 

{¶ 4} The board’s report was certified to this court on February 22, 

2011.1 The board’s report recommended that Vivo be suspended from the 

practice of law for two years, with one year stayed. The board further 

recommended that Vivo be placed on probation for two years following his year 

of suspension and that he complete eight hours of continuing legal education in 

law-office management. 

{¶ 5} Vivo filed objections to the board’s report. Relator filed an answer 

brief and a motion to remand the case to the board. On April 12, 2011, we 

granted relator’s motion to remand to the board for consideration of whether Vivo 

“suffers from a medical condition that disabled him from responding to the 

allegations made against him * * * and for further action that the board deems 

necessary.” 

{¶ 6} On remand, relator filed a motion for leave to file an amended 

complaint on August 19, 2011. The amended complaint charged Vivo with 

additional violations stemming from his representation of Cathy Jupp. Vivo 

opposed the filing of amended complaint, but the panel overruled those objections 

and allowed the relator to proceed on the additional charges. 

{¶ 7} On November 3, 2011, the parties filed stipulations of facts and 

law and a jointly recommended sanction. The panel held a hearing on November 

7, 2011, to address the issue set forth in our remand order. The panel received 

evidence regarding Vivo’s mental-health condition and heard testimony from 

Vivo on his handling of the Hayes and Jupp matters. 

{¶ 8} Following the hearing, the panel made findings of fact, conclusions 

of law, and a recommended sanction. The panel adopted the parties’ 

 

1. An amended board report was filed in this court on March 4, 2011, that contained 

nonsubstantive revisions. 
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3

recommended sanction of a one-year stayed suspension conditioned on Vivo’s 

following the course of treatment of his mental-health professional. The board 

adopted the panel’s findings of misconduct and the recommended sanction. 

Misconduct 

The Esther Hayes Matter 

{¶ 9} In April 2007, Esther and Michael Hayes (now divorced) were 

sued in their individual capacities and as joint owners of Star Motors, a used-car 

lot. The Hayeses were served with the complaint on April 18, 2007, and they 

retained Vivo to defend them shortly thereafter. 

{¶ 10} On May 29, 2007, the trial court granted a default judgment in 

plaintiff’s favor because Vivo had failed to answer the complaint. The trial court, 

however, vacated the default judgment on August 16, 2007. Thereafter, Vivo and 

plaintiff’s counsel engaged in negotiations to settle the case. On October 22, 

2007, the trial court filed a judgment entry stating that the case had been settled 

and dismissed. 

{¶ 11} On December 5, 2007, the trial court filed an entry granting the 

plaintiff’s motion to enforce the settlement agreement. In April 2008, the trial 

court granted the plaintiff’s motion for a debtor’s examination and ordered the 

Hayeses to appear for an examination on May 30, 2008. The outcome of that 

hearing is not reflected in the record. Esther Hayes eventually filed for Chapter 7 

bankruptcy protection and discharged any judgment as to her. 

{¶ 12} On September 16, 2009, Esther Hayes filed a grievance against 

Vivo with the Mahoning County Bar Association. The Grievance Committee 

conducted an investigation. Vivo, however, failed to cooperate in the 

investigation. 

{¶ 13} Based on the grievance and Vivo’s failure to cooperate, the board 

in its initial report found that Vivo failed to answer the complaint in the Hayes 

matter, failed to return numerous phone calls from Esther Hayes, and settled the 
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case without the authority of Esther or Michael Hayes. Accordingly, the board 

found that Vivo had committed violations of Prof.Cond.R. 1.1 (requiring a lawyer 

to provide competent representation), 1.3 (requiring a lawyer to act with 

reasonable diligence in representing a client), 1.4(a)(3) (requiring a lawyer to 

keep a client reasonably informed of the status of a matter), 1.4(a)(4) (requiring a 

lawyer to respond to a client’s reasonable request for information), 1.2 (requiring 

a lawyer to abide by a client’s decisions concerning the objects of representation), 

4.1 (prohibiting a lawyer from knowingly making false statements of material fact 

to a third person), and Gov.Bar R. V(4)(G) (requiring a lawyer to cooperate in an 

investigation of professional misconduct). 

{¶ 14} The board certified its initial report to this court on February 22, 

2011. Following this court’s remand order, Vivo began to cooperate in the 

investigation. Because of Vivo’s cooperation, relator was able to depose Michael 

Hayes. Hayes testified that Vivo had regularly communicated with him and that 

he had given Vivo authority to settle the case. Based on Michael Hayes’s sworn 

testimony, relator and Vivo agreed that there was no clear and convincing 

evidence to support the alleged misconduct, and they stipulated to dismiss the 

charged violations, except for the failure-to-cooperate charge. The panel agreed 

and found that the charges should be dismissed. The board accepted the panel’s 

findings. 

{¶ 15} We agree with the board that the record does not contain clear and 

convincing evidence that Vivo’s conduct in the Hayes matter violated 

Prof.Cond.R. 1.1, 1.3, 1.4(a)(3), 1.4(a)(4), 1.2, or 4.1. 

Failure to Cooperate in Disciplinary Investigation 

{¶ 16} On September 21, 2009, relator sent a letter to Vivo notifying him 

that Esther Hayes had filed a grievance against him and that he was required to 

submit a written statement setting forth his position on the matter. Vivo was also 
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advised that failure to promptly respond might be deemed a failure to cooperate in 

the investigation in violation of Gov.Bar R. V(4)(G). 

{¶ 17} Relator’s investigator wrote three additional letters to Vivo, on 

October 21, November 13, and December 8, 2009, seeking his response to the 

grievance. Following these unsuccessful attempts to obtain information, a 

probable-cause panel certified a complaint against Vivo. Vivo did not answer the 

complaint, and relator moved for default. The board referred the matter to a 

master commissioner, who issued a report finding that Vivo had failed to 

cooperate in the grievance investigation in violation of Gov.Bar R. V(4)(G). The 

board accepted this finding in its February 22, 2011 report. 

{¶ 18} Vivo’s failure to cooperate was the focus of this court’s order 

remanding the case to the board. As noted above, the purpose of our remand was 

for the board to determine whether Vivo suffered from a medical condition that 

prevented him from responding to the allegations made against him in the Hayes 

matter. 

{¶ 19} On remand before the board, the parties agreed that Vivo suffered 

from a mental-health condition and that his condition should be considered as a 

mitigating factor in determining the sanction imposed in the Hayes matter. The 

parties, however, disagreed as to whether Vivo’s mental-health condition should 

be treated as a defense to the failure-to-cooperate allegation. 

{¶ 20} Following the presentation of evidence, the panel found that 

Vivo’s mental-health condition could not serve as a defense to the failure-tocooperate charge. Rather, the condition may be treated only as mitigation. In its 

April 18, 2012 report, the board adopted the panel’s decision. 

{¶ 21} Before this court, Vivo does not challenge the determination that 

his mental-health condition was not a defense to the failure-to-cooperate charge. 

Accordingly, we accept the board’s findings of fact and conclusions of law as to 

this issue. 
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{¶ 22} As to whether Vivo failed to cooperate in the investigation of the 

Hayes grievance, the panel and the board found clear and convincing evidence to 

support the charge. The board cited two factors in support: (1) the fact that a 

master commissioner needed to be appointed to decide the default-judgment 

motion and (2) the board’s February 22, 2011 report certified to this court, which 

concluded that Vivo had violated Gov.Bar R. V(4)(G). 

{¶ 23} Vivo did not object to this determination. After review of the 

record before us, we agree that Vivo repeatedly ignored relator’s investigative 

inquiries. Relator submitted the letters sent by its investigator to Vivo requesting a 

response to the grievance, and the investigator’s affidavit attesting to Vivo’s lack 

of response. Vivo also testified that he failed to respond to relator’s inquiries. 

This evidence, coupled with the findings contained in the board’s February 22, 

2011 report, constitute sufficient evidence that Vivo violated Gov.Bar R. V(4)(G). 

The Cathy Jupp Matter 

{¶ 24} Cathy Jupp hired Vivo in April or May 2002 to represent her in a 

medical-malpractice claim. In January 2003, Vivo filed suit against the 

physicians. The defendants answered the complaint and submitted affirmative 

defenses. On June 6, 2003, the defense filed a motion for summary judgment. 

Vivo did not inform Jupp of the motion for summary judgment, and he never filed 

any response in opposition. On July 14, 2003, the trial court granted the 

defendant’s unopposed motion for summary judgment. 

{¶ 25} In June 2004, Jupp asked Vivo for assistance in regard to an 

unpaid bill that Jupp owed to a health-care provider. Vivo did not tell Jupp at this 

time that her case had been dismissed. 

{¶ 26} In July 2005, Vivo again met with Jupp. This time Vivo told Jupp 

that her case had been dismissed. He also admitted to Jupp that he was too 

inexperienced to pursue the medical-malpractice lawsuit that he had filed on her 
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behalf. Vivo acknowledged that he had committed legal malpractice, and he 

advised Jupp to hire an attorney to sue him. 

{¶ 27} Jupp followed Vivo’s advice and sued him for malpractice. The 

record before the board suggests that there was no merit to Jupp’s medicalmalpractice claim. Before Vivo filed her medical-malpractice claim, another 

attorney had filed a personal-injury claim on Jupp’s behalf. Jupp’s injuries from 

the alleged medical malpractice (a missed medical diagnosis) were disclosed to 

the tortfeasor’s insurer. And, according to Vivo, the damages for the missed 

diagnosis were contemplated in the settlement of the personal-injury claim. 

Despite this, Vivo paid Jupp $40,000 to settle the malpractice claim. Jupp filed 

her grievance against Vivo after she had been paid. 

{¶ 28} The Jupp matter is the subject of relator’s amended complaint, 

which charged Vivo with violating DR 6-101(A)(1) (prohibiting a lawyer from 

accepting a case that the lawyer is not competent to handle), 6-101(A)(2) 

(prohibiting a lawyer from providing representation without adequate 

preparation), 6-101(A)(3) (prohibiting a lawyer from neglecting an entrusted legal 

matter), 7-101(A)(1) (requiring a lawyer to seek the client’s lawful objectives 

through reasonable means), 7-101(A)(2) (requiring a lawyer to carry out a 

contract of professional employment), 7-101(A)(3) (prohibiting conduct that 

prejudices or damages a client), 1-101(A)(4) (prohibiting conduct involving fraud, 

deceit, dishonesty, or misrepresentation), and 1-101(A)(6) (prohibiting conduct 

that adversely reflects on a lawyer’s fitness to practice law).2

{¶ 29} Relator and Vivo stipulated that his actions in the Jupp matter 

violated DR 6-101(A)(1) and 6-101(A)(3). The parties requested that the panel 

and board dismiss the remaining violations. The panel and board accepted the 

stipulations. We adopt these findings of fact and misconduct. 

 

2. Because the events giving rise to the Jupp matter occurred before the effective date of the Rules 

of Professional Conduct, relator alleged violations of the Code of Professional Responsibility. 
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Sanction 

{¶ 30} In recommending a sanction, the board considered the aggravating 

and mitigating factors listed in BCGD Proc.Reg. 10. 

{¶ 31} The parties stipulated that Vivo’s lack of cooperation in the 

disciplinary process was the only aggravating factor. BCGD Proc.Reg. 

10(B)(1)(e). They also stipulated to the following mitigating factors under BCGD 

Proc.Reg. 10(B)(2): (a) no prior disciplinary record, (b) lack of dishonest or 

selfish motive, (c) timely, good-faith effort at restitution, (d) full and free 

disclosure to disciplinary board and cooperative attitude toward proceedings (after 

obtaining counsel and mental-health treatment), (e) character and reputation, and 

(g)(i) through (iv) diagnosed mental disability. 

{¶ 32} The panel and board agreed with the stipulated aggravating and 

mitigating factors. The panel, however, believed that Vivo’s mental disability 

warranted further discussion. The panel stated that Vivo was diagnosed with 

depression that stemmed primarily from his failed marriage. The panel also noted 

that Vivo received treatment for his depression long after the events that gave rise 

to the alleged violations. According to the panel, Vivo’s psychologist and mentalhealth counselor were “comfortable concluding the depression significantly 

contributed to [Vivo’s] misconduct in the Jupp matter as well as his failure to 

cooperate.” The board adopted the panel’s findings and conclusions on this issue. 

The board also accepted the parties’ stipulated recommendation of a one-year 

suspension, stayed in its entirety on the condition that Vivo continue treating his 

depression with a mental-health professional. 

{¶ 33} We agree with the panel and the board that Vivo’s depression 

qualified as a mitigating factor as it relates to his failure to cooperate in the Hayes 

matter. But, contrary to the board’s report, the finding that Vivo’s depression was 

also mitigating as to the Jupp matter finds no support in the record. In fact, Vivo 
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testified before the board that his depression was not a mitigating factor in the 

Jupp matter. 

{¶ 34} Despite this error, we find no reason to alter the sanction 

recommended by the board. Vivo recognized that his depression prevented him 

from practicing law in a competent and ethical manner. He has sought out and 

received successful treatment for his depression and continues to meet with his 

treating physician. Vivo has reintegrated himself with his own family and 

developed a support network to assist in his recovery. And, according to his 

mental-health professionals, Vivo is capable of returning to a competent, ethical 

professional practice. 

{¶ 35} Accordingly, we adopt the board’s recommended sanction. We 

therefore suspend Vivo from the practice of law in Ohio for a period of one year, 

with the entire suspension stayed on the condition that Vivo continue to follow 

the advice of his treating mental-health professional. If Vivo fails to comply with 

this condition, the stay will be lifted and he will serve the one-year suspension. 

Costs are taxed to Vivo. 

Judgment accordingly. 

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

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

____________ 

 Ronald E. Slipski and David Comstock Jr., for relator. 

 John J. Juhasz and Lynn Marro, for respondent. 

_________________