[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Disciplinary Counsel v. Ferfolia, Slip Opinion No. 2022-Ohio-4220.]

 

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 Decisions, 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.

SLIP OPINION NO. 2022-OHIO-4220

DISCIPLINARY COUNSEL v. FERFOLIA.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Disciplinary Counsel v. Ferfolia, Slip Opinion No. 

2022-Ohio-4220.]

Attorneys—Misconduct—Violations of the Rules of Professional Conduct—

Conditionally stayed one-year suspension.

(No. 2022-0715—Submitted August 2, 2022—Decided November 30, 2022.)

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme 

Court, No. 2021-028.

______________

Per Curiam.

{¶ 1} Respondent, Donald Bryan Ferfolia Jr., of Brecksville, Ohio, 

Attorney Registration No. 0082049, was admitted to the practice of law in Ohio in

2007. In an October 2021 complaint, relator, disciplinary counsel, charged Ferfolia

with five ethical violations arising from his representation of a husband and wife

seeking long-term-care Medicaid benefits for the husband. The complaint alleged 
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that, among other things, Ferfolia failed to timely take actions necessary to obtain 

the desired Medicaid benefits, failed to comply with his clients’ reasonable requests 

for information, falsely led them to believe that he had filed a claim on their behalf 

with his professional-liability-insurance carrier, and failed to cooperate in the 

ensuing disciplinary investigation.

{¶ 2} The parties entered into stipulations of fact, misconduct, and 

aggravating and mitigating factors. At a hearing conducted by a three-member 

panel of the Board of Professional Conduct, the parties recommended that we 

impose a conditionally stayed one-year suspension for Ferfolia’s misconduct. The 

board issued a report finding that Ferfolia committed the charged misconduct. It 

also adopted the parties’ stipulated aggravating and mitigating factors and their

recommended sanction—with additional conditions on the stay. No objections 

have been filed.

{¶ 3} After thoroughly reviewing the record, we adopt the board’s findings 

of misconduct and its recommended sanction.

Misconduct

The Schnurr Medicaid Application

{¶ 4} In January 2019, Charles Schnurr resided in a Cleveland-area nursing 

home; his wife, Rita, lived in a Cleveland suburb with their adult daughter, Janice. 

Around that time, Rita learned that Charles had nearly exhausted his insurance 

coverage and that they would need to apply for long-term-care Medicaid to cover 

Charles’s ongoing nursing-home expenses.

{¶ 5} Ferfolia was a licensed funeral director and vice-president of the 

board of the Ferfolia Funeral Home in Sagamore Hills, Ohio. He also practiced 

law part-time. Rita and Charles Schnurr knew Ferfolia through their church and 

the funeral home. Based on their understanding that Ferfolia was an “elder law” 

attorney, the Schnurrs hired him to apply for Medicaid benefits on Charles’s behalf. 

They did not sign a fee agreement, and Ferfolia did not charge them any fee.
January Term, 2022

3

{¶ 6} In March 2019, Ferfolia submitted an application for long-term-care 

Medicaid to the Ohio Department of Job & Family Services (“ODJFS”),

designating himself as Charles’s authorized representative. The agency denied that 

application in September 2019 on the ground that Ferfolia had failed to timely 

provide information regarding Charles’s income. Ferfolia appealed, and a hearing 

officer reopened the application upon finding that the information had been 

provided but that the ODJFS web portal had directed the documents to the wrong 

county.

{¶ 7} The parties stipulated that in 2019, an applicant had to have a monthly 

income of $2,313 or less to qualify for long-term-care Medicaid. At the time of his 

application, Charles’s monthly income was $3,263. In an October 2019 email, 

Ferfolia informed the nursing home that Charles’s income was about $3,000 and 

erroneously stated that that income was “under the [Medicaid] income threshold.”

{¶ 8} On December 10, 2019, ODJFS informed Ferfolia that he needed to 

submit additional documents in support of Charles’s Medicaid application no later 

than December 23. That correspondence further stated, “If your gross income for 

2019 is more than $2313 you may be required to open a Qualified Income Trust.” 

Ferfolia did not submit the requested documents to ODJFS before the deadline or 

take any other action to confirm Charles’s Medicaid eligibility, nor did he take any 

steps to open a qualified-income trust on Charles’s behalf. Over the following

months, Ferfolia failed to respond to numerous communications from Rita, Janice, 

and Megan Marzola, the nursing home’s Medicaid manager, inquiring about the 

status of Charles’s Medicaid application.

{¶ 9} In early February 2020, Rita and Janice informed Marzola that they 

had not heard from Ferfolia and that they needed to submit requested bank 

statements to ODJFS. Marzola retrieved the documents from Rita and Janice and 

submitted them to ODJFS. Later that month, an ODJFS representative informed 

Marzola that Ferfolia had failed to establish the qualified-income trust that was 
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necessary to establish Charles’s eligibility for long-term-care Medicaid. On 

February 12, nursing-home representatives helped the Schnurrs establish a 

qualified-income trust for Charles. One week later, ODJFS approved Charles’s 

Medicaid application with an effective date of February 1, 2020, rather than the 

March 22, 2019 application date.

{¶ 10} The parties stipulated that as a result of Ferfolia’s failure to 

recognize the need for and to timely establish a qualified-income trust for Charles, 

the Schnurrs had incurred over $87,000 in nursing-home expenses that otherwise 

would have been covered by Medicaid. After Charles died in January 2021, Rita 

and Janice used his life-insurance proceeds and government-stimulus funds to pay 

those expenses in full. Although Rita asked Ferfolia to return the paperwork she 

had given him during the course of his representation, he waited nearly two years 

to return those documents to her.

The Schnurr Legal-Malpractice Claim

{¶ 11} In May 2020, Rita and Charles Schnurr hired attorney Drew 

Barnholtz to pursue a legal-malpractice action against Ferfolia. Ferfolia told 

Barnholtz that he had professional-liability insurance, but he did not give Barnholtz 

the name of his carrier.

{¶ 12} In September 2020, Barnholtz sent Ferfolia an email stating that 

Ferfolia had failed to respond to numerous voicemail messages and emails from 

Barnholtz over the previous several weeks requesting information about the status 

and resolution of Ferfolia’s insurance claim. Although Ferfolia had not filed a 

claim with his professional-liability carrier, he falsely implied in his reply to 

Barnholtz that he had submitted a claim.

{¶ 13} A week later, Marzola emailed Barnholtz, copying Ferfolia, to ask 

whether Ferfolia had received Barnholtz’s request that he follow up with his 

insurance carrier. Ferfolia replied to Marzola and Barnholtz and once again falsely 

implied that he had filed an insurance claim.
January Term, 2022

5

{¶ 14} In December 2020, Barnholtz filed a legal-malpractice action against 

Ferfolia in the Summit County Court of Common Pleas. The complaint alleged 

that Ferfolia’s failure to timely establish a qualified-income trust had delayed the 

approval of Charles’s Medicaid application and caused the Schnurrs to incur over 

$87,000 in unreimbursed nursing-home expenses. Although the complaint was 

served on Ferfolia by certified mail, he did not file a timely answer or other 

responsive pleading. The court granted Barnholtz’s motion for default judgment 

and, in June 2021, awarded the Schnurrs $87,000 in damages plus $21,750 in 

attorney fees. Ferfolia failed to appear for a scheduled debtor’s examination in 

October 2021 but participated in a December 2021 examination to avoid being 

found in contempt of court. Following that examination, Ferfolia informed

Barnholtz of his financial means and plans to satisfy the judgment. At his 

disciplinary hearing, Ferfolia testified that he had made three payments totaling 

$13,750 but that he still owed the Schnurrs $95,000. He stated that he had $6,000 

available and that he was in the process of liquidating an individual retirement 

account valued at more than $100,000 to satisfy the judgment.

Relator’s Investigation of the Schnurrs’ Grievance

{¶ 15} In October 2020, the Schnurrs filed a grievance against Ferfolia with 

relator. Ferfolia failed to respond to relator’s first two letters of inquiry regarding 

the grievance. Consequently, relator’s investigator hand-delivered a third letter of 

inquiry requiring him to respond by May 3, 2021, or to appear at a May 20 

deposition. During a May 6 telephone conversation with relator, Ferfolia claimed 

that he had emailed his partial response to the grievance earlier that week. When 

relator informed Ferfolia that it had not received such an email, Ferfolia assured 

relator that he would resend it immediately, but he failed to do so.

{¶ 16} Ferfolia appeared for his May 20 deposition by videoconference. He

once again claimed to have emailed relator a Microsoft Word document containing 

his partial response to the grievance shortly before May 6. Immediately following 
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the deposition, relator emailed Ferfolia to request a copy of his professionalliability-insurance policy and other documents. On the day his response was due, 

Ferfolia sent relator an email stating that he was working on his response and that 

he would provide it “shortly.” About a week later, he sent another email, stating 

that he would provide the requested information “ASAP.” But he never provided 

the requested information.

Rule Violations

{¶ 17} The parties stipulated and the board found that Ferfolia’s conduct 

violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in 

representing a client), 1.4(a)(4) (requiring a lawyer to comply as soon as practicable 

with reasonable requests for information from a client), 1.16(d) (requiring a lawyer 

to promptly deliver client papers and property as part of the termination of 

representation), 8.1(b) (prohibiting a lawyer from failing to disclose a material fact 

or knowingly failing to respond to a demand for information by a disciplinary 

authority during an investigation), and 8.4(c) (prohibiting a lawyer from engaging 

in conduct involving dishonesty, fraud, deceit, or misrepresentation). We adopt 

these findings of misconduct.

Sanction

{¶ 18} When imposing sanctions for attorney misconduct, we consider all 

relevant factors, including the ethical duties that the lawyer violated, the 

aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions 

imposed in similar cases.

{¶ 19} The parties stipulated and the board found that three aggravating 

factors are present—Ferfolia had a dishonest or selfish motive, committed multiple 

offenses, and caused harm to Rita and Janice, who were vulnerable because they 

were disabled and lived on a fixed monthly income. See Gov.Bar R. V(13)(B)(2), 

(4), and (8).
January Term, 2022

7

{¶ 20} As for mitigating factors, the parties stipulated and the board found 

that Ferfolia has no prior discipline and had exhibited full and free disclosure to the 

board and a cooperative attitude toward the disciplinary proceedings (after initially 

failing to cooperate) and submitted evidence of his good character and reputation. 

See Gov.Bar R. V(13)(C)(1), (4), and (5).

{¶ 21} At his disciplinary hearing, Ferfolia testified that his mother had 

been sick around the time that he neglected the Schnurrs’ legal matter and that she

had been hospitalized for 90 days before her death on February 15, 2020. He 

explained that when the COVID-19 lockdown occurred just one month later, he 

“put [his] head in the sand.” The board found that Ferfolia was very remorseful 

about his misconduct, and it noted that when asked what assurance he could give 

that he would not repeat his misconduct, he testified that the disciplinary process 

had served as a “wake-up call” and that he never wanted to be in this position again. 

Although relator had suggested that Ferfolia seek an evaluation conducted by the 

Ohio Lawyers Assistance Program (“OLAP”), he declined to do so, opting instead 

to pursue counseling through his church.

{¶ 22} The parties suggested that the appropriate sanction for Ferfolia’s 

misconduct is a one-year suspension, stayed in its entirety on the condition that he 

make restitution equal to the remaining balance of the judgment awarded in the

Schnurrs’ malpractice case within 30 days of this court’s final disciplinary order.

{¶ 23} In determining the appropriate sanction, the board considered our 

precedent, including four cases cited by relator. In three of those cases, we imposed

conditionally stayed one-year suspensions on attorneys who, like Ferfolia, had

neglected a single client matter, failed to reasonably communicate with a client, 

and either lied to a client in an effort to conceal their neglect or failed to fully 

cooperate in the ensuing disciplinary proceedings—or both. See, e.g., Cleveland 

Metro. Bar Assn. v. Mariotti, 158 Ohio St.3d 522, 2019-Ohio-5191, 145 N.E.3d 

286; Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257, 2007-Ohio-6040, 878 
SUPREME COURT OF OHIO

8

N.E.2d 6; Disciplinary Counsel v. Farris, 157 Ohio St.3d 527, 2019-Ohio-4810, 

138 N.E.3d 1134.

{¶ 24} In the fourth case, Dayton Bar Assn. v. Sullivan, 158 Ohio St.3d 423, 

2020-Ohio-124, 144 N.E.3d 401, we imposed a two-year suspension, with the 

second year conditionally stayed, on an attorney who had neglected three client 

matters, lied to those clients about filing documents in their cases in an attempt to 

conceal his inaction, failed to inform them that he did not carry professionalliability insurance, and failed to cooperate in the disciplinary investigations. Like 

Ferfolia, Sullivan acted with a dishonest or selfish motive and engaged in multiple 

offenses. In addition, Sullivan failed to refund unearned or unused legal and filing 

fees and failed to cooperate in the relator’s investigation until after the relator filed 

its complaint against him. But Sullivan had no prior discipline, and three close 

family members of his had died within several months of one another around the 

time of his misconduct. Conditions of the partially stayed suspension in Sullivan

included requirements that he pay restitution, submit to an OLAP assessment,

comply with any resulting recommendations, and refrain from further misconduct.

{¶ 25} The board also considered Cincinnati Bar Assn. v. Burgess, 165 

Ohio St.3d 274, 2021-Ohio-2187, 178 N.E.3d 476. Burgess failed to seek 

temporary support orders on behalf of a domestic-relations client, failed to appear 

for a scheduled status conference and trial in that matter, and falsely represented 

that he had delivered the client’s file to his new counsel. He also failed to complete 

the agreed work in the limited-scope representation of another client, to comply 

with that client’s reasonable requests for information, and to withdraw from the 

representation as required by local rule. In the presence of aggravating and 

mitigating factors similar to those present here—and on Burgess’s suggestion that 

he had been overwhelmed by his solo practice and personal issues—we imposed a 

one-year suspension for Burgess’s misconduct but stayed the entire suspension on
January Term, 2022

9

conditions, including that he submit to an OLAP evaluation, comply with any 

resulting treatment recommendations, and refrain from further misconduct.

{¶ 26} Based on the facts of this case and on the authority of Mariotti, 

Fumich, Farris, Sullivan, and Burgess, the board agreed with the parties’ 

recommendation that Ferfolia be suspended from the practice of law for one year 

and that the entire suspension be conditionally stayed. But in addition to the parties’ 

stipulation that Ferfolia make restitution to the Schnurrs, the board recommends 

that Ferfolia be required to refrain from further misconduct and that like Sullivan 

and Burgess, he be required to submit to an OLAP evaluation and enter into an 

OLAP contract if OLAP determines that treatment is necessary. Furthermore, the 

board specified that the OLAP evaluation should occur within 30 days of this 

court’s order.

{¶ 27} This court has held that generally, attorney misconduct “involving 

dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension from 

the practice of law.” Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 2011-

Ohio-4243, 954 N.E.2d 118, ¶ 16, citing Disciplinary Counsel v. Kraemer, 126 

Ohio St.3d 163, 2010-Ohio-3300, 931 N.E.2d 571, ¶ 13, and Disciplinary Counsel 

v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. However, we 

have stated that an exception to this rule may be justified when “an abundance of 

mitigating evidence” is shown. Disciplinary Counsel v. Markijohn, 99 Ohio St.3d 

489, 2003-Ohio-4129, 794 N.E.2d 24, ¶ 8, citing Dayton Bar Assn. v. Kinney, 89 

Ohio St.3d 77, 728 N.E.2d 1052 (2000). We find that the relevant mitigating 

factors—namely, Ferfolia’s clean disciplinary record, his eventual full and free 

disclosure and cooperative attitude toward the disciplinary proceedings, his positive 

character evidence, and his genuine remorse—warrant such an exception here.

{¶ 28} After independently reviewing the record and considering the 

totality of Ferfolia’s misconduct, the relevant aggravating and mitigating factors, 
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and our precedent, we believe that a one-year suspension, stayed in its entirety on 

the conditions recommended by the board, is the appropriate sanction in this case.

Conclusion

{¶ 29} Accordingly, Donald Bryan Ferfolia Jr. is suspended from the 

practice of law in Ohio for one year with the suspension stayed in its entirety on the 

conditions that he commit no further misconduct and that within 30 days, he pay 

the balance of the judgment entered against him in Schnurr v. Ferfolia, Summit 

C.P. No. CV-2020-12-3358, and submit to an OLAP evaluation. If Ferfolia violates 

any condition of the stay, the stay will be lifted and he will serve the entire oneyear suspension. If OLAP determines that treatment is necessary, the stay shall 

also be conditioned on Ferfolia’s entering into an OLAP contract for a duration to 

be determined by OLAP and his complying with all treatment recommendations. 

Costs are taxed to Ferfolia.

Judgment accordingly.

O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., 

concur.

DEWINE, J., concurs in judgment only.

KENNEDY, J., dissents, with an opinion.

_________________

KENNEDY, J., dissenting.

{¶ 30} This court in a series of cases established a presumption of actual 

suspension from the practice of law when attorney misconduct “involv[es]

dishonesty, fraud, deceit, or misrepresentation.” Disciplinary Counsel v. Karris, 

129 Ohio St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118, ¶ 16, citing Disciplinary 

Counsel v. Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300, 931 N.E.2d 571, ¶ 13,

and Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 

(1995), syllabus. The presumptive sanction of an actual suspension from the 

practice of law can be rebutted when there is “an abundance of mitigating 
January Term, 2022

11

evidence.” Disciplinary Counsel v. Markijohn, 99 Ohio St.3d 489, 2003-Ohio4129, 794 N.E.2d 24, ¶ 8, citing Dayton Bar Assn. v. Kinney, 89 Ohio St.3d 77, 728 

N.E.2d 1052 (2000).

{¶ 31} I agree that respondent, Donald Bryan Ferfolia, committed the 

misconduct as alleged in the complaint and found by the majority. But in my view, 

there is not an abundance of mitigating evidence that outweighs the misconduct of 

Ferfolia—misleading vulnerable victims who suffered actual financial harm and 

deceit about filing a claim with his professional-liability-insurance carrier. 

Therefore, I would impose an actual suspension from the practice of law for one 

year with six months stayed on the conditions that he commit no further misconduct 

and that within 30 days, he pay the balance of the judgment entered against him in 

Schnurr v. Ferfolia, Summit C.P. No. CV-2020-12-3358, and submit to an Ohio 

Lawyers Assistance Program (“OLAP”) evaluation. Because the majority does not 

impose an actual suspension, I dissent.

{¶ 32} Charles Schnurr was residing in a nursing home and needed to apply 

for long-term-care Medicaid to cover his ongoing nursing-home expenses. 

Charles’s wife, Rita, and their adult daughter, Janice Schnurr (“the Schnurrs”) hired 

Ferfolia to obtain long-term-care Medicaid on Charles’s behalf.

{¶ 33} On March 22, 2019, Ferfolia submitted an application for long-termcare Medicaid to the Ohio Department of Job & Family Services (“ODJFS”). 

However, he failed to timely submit documents requested by ODJFS or take steps 

to confirm Charles’s Medicaid eligibility. Ferfolia also failed to communicate with 

the Schnurrs and the nursing home’s Medicaid manager about the status of 

Charles’s Medicaid application.

{¶ 34} The nursing home eventually assisted the Schnurrs with the 

application, and the application was approved. However, because of Ferfolia’s 

misconduct, the effective date of the Medicaid benefits was February 1, 2020, 

instead of March 22, 2019. As a direct result of his misconduct, the Schnurrs 
SUPREME COURT OF OHIO

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incurred over $87,000 in nursing-home expenses that otherwise would have been 

covered by Medicaid.

{¶ 35} Charles died in January 2021. The Schnurrs, who are disabled and 

live on a fixed monthly income, had to pay the outstanding nursing-home expenses 

using Charles’s life-insurance proceeds and government-stimulus funds.

{¶ 36} In May 2020, the Schnurrs hired attorney Drew Barnholtz to pursue 

a legal-malpractice action against Ferfolia. Ferfolia told Barnholtz that he had 

professional-liability insurance, but he did not provide Barnholtz with the name of 

his carrier.

{¶ 37} Ferfolia did not submit an insurance claim to his carrier. Yet on two 

separate occasions, he falsely implied to Barnholtz that he had submitted a claim.

{¶ 38} Barnholtz filed a legal-malpractice action against Ferfolia in the 

Summit County Court of Common Pleas. Although Ferfolia was served with the 

complaint by certified mail, he did not file a timely answer or other responsive 

pleading. The court granted Barnholtz’s motion for default judgment and 

subsequently awarded the Schnurrs $87,000 in damages plus $21,750 in attorney 

fees.

{¶ 39} At the time of his disciplinary hearing, Ferfolia had made three 

payments totaling $13,750 but still owed the Schnurrs $95,000.

{¶ 40} This court has held that an attorney who engages in conduct 

involving dishonesty, fraud, deceit, or misrepresentation generally will serve an 

actual suspension from the practice of law. Karris, 129 Ohio St.3d 499, 2011-Ohio4243, 954 N.E.2d 118, at ¶ 16, citing Kraemer, 126 Ohio St.3d 163, 2010-Ohio3300, 931 N.E.2d 571, at ¶ 13, and Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 

237, at syllabus. “[A]n actual suspension is particularly appropriate when an 

attorney’s dishonesty has been directed toward a client.” Disciplinary Counsel v. 

Stollings, 111 Ohio St.3d 155, 2006-Ohio-5345, 855 N.E.2d 479, ¶ 13. This court 

has explained: 
January Term, 2022

13

A lawyer who engages in a material misrepresentation to a court or 

a pattern of dishonesty with a client violates, at a minimum, the 

lawyer’s oath of office that he or she will not “knowingly * * * 

employ or countenance any * * * deception, falsehood, or fraud.” 

Gov.Bar R. I(8)(A). Such conduct strikes at the very core of a 

lawyer’s relationship with the court and with the client. Respect for 

our profession is diminished with every deceitful act of a lawyer.

(Ellipses sic.) Fowerbaugh at 190.

{¶ 41} Fowerbaugh provides the rule of decision in this case, and it holds 

that the presumptive sanction for misrepresentations to clients and tribunals is an 

actual suspension from the practice of law. The appropriate analysis when this 

court has established a presumptive sanction for certain misconduct is to “begin[ ] 

with the presumptive sanction” and determine whether there is any reason not to 

impose it. Cleveland Bar Assn. v. Harris, 96 Ohio St.3d 138, 2002-Ohio-2988, 772 

N.E.2d 621, ¶ 9 (Cook, J., dissenting). Only when there is “an abundance of 

mitigating evidence” shown, Markijohn, 99 Ohio St.3d 489, 2003-Ohio-4129, 794 

N.E.2d 24, at ¶ 8, citing Kinney, 89 Ohio St.3d 77, 728 N.E.2d 1052, is the 

imposition of a sanction less severe than the one presumed under our caselaw 

warranted. See Disciplinary Counsel v. Edwards, 134 Ohio St.3d 271, 2012-Ohio5643, 981 N.E.2d 857, ¶ 18.

{¶ 42} The majority finds in mitigation that Ferfolia has “no prior discipline 

and had exhibited full and free disclosure to the board and a cooperative attitude 

toward the disciplinary proceedings (after initially failing to cooperate) and 

submitted evidence of his good character and reputation.” Majority opinion, ¶ 20. 

The majority then concludes that the mitigating factors rebut the presumption of an 

actual suspension from the practice of law. I disagree.
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{¶ 43} The mitigating factors should be considered, but they are not enough 

in this case to overcome the presumption of an actual suspension. When imposing 

sanctions for attorney misconduct, we consider the sanctions previously imposed 

in similar cases. Disciplinary Counsel v. Broeren, 115 Ohio St.3d 473, 2007-Ohio5251, 875 N.E.2d 935, ¶ 21. Here, our caselaw supports the imposition of an actual 

suspension from the practice of law.

{¶ 44} In Toledo Bar Assn. v. Hickman, the attorney falsely advised a 

couple that he had filed a wrongful-death action for them and then lied repeatedly 

about how the case was progressing. 107 Ohio St.3d 296, 2005-Ohio-6513, 839 

N.E.2d 24. In addition, Hickman previously dismissed the couple’s son’s personalinjury action without permission and then lied about the circumstances of the 

dismissal. The statute of limitations lapsed on both claims; however, a portion of 

the clients’ losses were covered by Hickman’s malpractice insurance.

{¶ 45} In mitigation, we found that Hickman had no prior disciplinary 

offenses and had cooperated in the disciplinary proceedings, expressed remorse for 

his misconduct, submitted evidence of his good character and reputation, and 

acknowledged the wrongfulness of his conduct. Id. at ¶ 10-11. We determined that 

this mitigation was neither significantly extenuating nor unusual and concluded that 

an actual suspension was required. Id. at ¶ 13-15. We imposed a one-year 

suspension with six months conditionally stayed. Id. at ¶ 15.

{¶ 46} In Disciplinary Counsel v. Keller, the attorney was retained to 

pursue a personal-injury claim. 110 Ohio St.3d 240, 2006-Ohio-4354, 852 N.E.2d 

1195. Keller falsely informed the client that a complaint had been filed and that he 

was negotiating with the tortfeasor’s insurance carrier. During the representation, 

he also falsely informed the client that he had received an offer to settle from the 

tortfeasor’s insurer.

{¶ 47} The client eventually retained new counsel, who discovered that no 

lawsuit had been filed and that the two-year statute of limitations had run. The 
January Term, 2022

15

client sued Keller for malpractice and obtained a default judgment against him in 

the amount of $102,800, which Keller had not satisfied by the time we issued our 

decision. See id. at ¶ 14.

{¶ 48} We found in mitigation that Keller had no prior disciplinary record

and that there was evidence of good character, chemical dependency, genuine 

remorse, and personal hardships—including the murder of his daughter, the 

subsequent trial of her killer, and a difficult divorce—at the time of the misconduct. 

Id. at ¶ 10.

{¶ 49} We acknowledged Keller’s mitigating evidence but found that his 

“attempts to conceal his neglect and his failure to remedy the harm that was caused 

warrant[ed] an actual suspension.” Id. at ¶ 13. Keller was suspended from the 

practice of law for two years with 18 months stayed on conditions. Id. at ¶ 14.

{¶ 50} In Disciplinary Counsel v. Johnson, 122 Ohio St.3d 293, 2009-Ohio3501, 910 N.E.2d 1034, the attorney neglected a client’s personal-injury matter and 

falsely advised the client that the matter was moving forward and that she would 

receive the settlement proceeds by a specified date. The statute of limitations 

eventually lapsed, leaving the client with no remedy against the tortfeasor. Johnson 

then refused to meet with the client and stopped communicating with her 

completely. Although Johnson had professional-malpractice insurance, she did not 

report the potential claim to her carrier.

{¶ 51} In mitigation, Johnson had no prior discipline. Id. at ¶ 9. We noted 

Johnson’s assertion that she had been deeply depressed due to the death of a close 

relative, but we determined that that evidence was not sufficient to establish the 

mitigating effect of mental disability. Id. We imposed a one-year suspension with 

six months conditionally stayed. Id. at ¶ 14.

{¶ 52} And in Columbus Bar Assn. v. Roseman, the attorney neglected a 

client’s personal-injury case, resulting in the client’s being barred from litigating 

his claim in court. 147 Ohio St.3d 317, 2016-Ohio-5085, 65 N.E.3d 713. During 
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the representation, Roseman was untruthful and deceitful in his communications 

with his client regarding why the client’s case, which Roseman had dismissed 

without informing the client that he had done so, had not been refiled. The client 

later sued Roseman for malpractice and obtained a judgment for $135,000.

{¶ 53} We found as mitigating factors that Roseman had no prior discipline 

and had cooperated in the disciplinary proceedings. Id. at ¶ 11. We concluded that 

a one-year suspension from the practice of law, with six months stayed on 

conditions, was appropriate for Roseman’s neglectful and dishonest behavior 

toward his client. Id. at ¶ 17.

{¶ 54} Our caselaw supports finding that Ferfolia’s mitigating evidence, 

while favorable, does not overcome the presumption of an actual suspension from 

the practice of law. There is no compelling reason here to deviate from the 

presumption that dishonest conduct toward a vulnerable client who suffers actual 

financial harm requires an actual suspension. Ferfolia’s neglect and dishonesty 

caused significant financial hardship to his vulnerable clients, who were disabled 

and lived on a fixed monthly income. Ferfolia has failed to remedy this harm, and 

an actual suspension for his misconduct is warranted.

{¶ 55} I recognize the favorable mitigating evidence that is present here, but 

in my view, it is insufficient to warrant an exception to the general rule that 

dishonest conduct on the part of an attorney warrants an actual suspension from the 

practice of law. See Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118, 

at ¶ 16. Therefore, I would suspend Ferfolia from the practice of law for one year 

with six months stayed on the conditions that he commit no further misconduct and 

that within 30 days, he pay the balance of the judgment entered against him in 

Schnurr v. Ferfolia, Summit C.P. No. CV-2020-12-3358, and submit to an OLAP 

evaluation.

{¶ 56} Because the majority does not impose an actual suspension, I 

dissent.
January Term, 2022

17

_________________

Joseph M. Caligiuri, Disciplinary Counsel, and Michelle R. Bowman and 

Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.

Donald B. Ferfolia Jr., pro se.

_________________