2019 Ohio 5286
Ohio2019Background:
- Attorney Michael J. Cheselka Jr. (admitted 2003) was charged in an amended disciplinary complaint with misconduct arising from representation of six criminal clients; the Board found 19 rule violations and recommended a two-year suspension with one year stayed.
- In the Martin matter, Cheselka delayed filing a petition for postconviction relief for ~3½ years, filed a petition that misrepresented when a key witness affidavit first appeared, and made false statements to the tribunal and in the disciplinary proceeding.
- In the Clark matter, Cheselka filed an untimely and legally unfounded emergency motion to modify a federal sentence, failed to act promptly, and provided incompetent representation and poor communications.
- In the Hill matter, Cheselka accepted a $5,000 flat fee (not deposited to trust), filed an untimely notice of appeal without adequate follow-up, failed to communicate, and agreed at hearing that $2,500 restitution was owed to the client’s payer.
- Cheselka also provided ineffective assistance to Adrian Williams (dismissed a direct appeal based on erroneous research) and failed to cooperate with disciplinary inquiries in several matters.
- The Supreme Court adopted the Board’s misconduct findings (with limited dismissals), suspended Cheselka two years (second year stayed on conditions), ordered $2,500 restitution within 60 days, required OLAP evaluation and compliance with recommendations for reinstatement, six CLE hours in law-office management, payment of costs, and one year of monitored probation upon reinstatement.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Cheselka violate professional-conduct rules (competence, diligence, communication, trust-account, candor, cooperation)? | Relator alleged multiple violations across six client matters and noncooperation with investigations. | Cheselka attributed some failings to personal stress, mistake, or disputed materiality; sought leniency. | Court found multiple violations (see background); adopted Board findings for 19 violations and dismissed some allegations for insufficient evidence. |
| Was Cheselka dishonest in the Martin postconviction filing and disciplinary responses (false statements about affidavit timing)? | Relator: Cheselka knowingly misrepresented when key affidavit was first provided, to meet statutory timeliness. | Cheselka: argued affidavits were corrective and materially similar; contested significance. | Court held Cheselka made false statements to the tribunal and in the disciplinary process (violations of Prof.Cond.R. 3.3(a), 8.1(a), 8.4(c)) and failed to act diligently (1.3). |
| Did Cheselka provide incompetent or negligent representation in Clark, Hill, and Williams matters (and fail to safeguard client funds)? | Relator: incompetence, lack of diligence, poor communication, failure to deposit advance fees into trust. | Cheselka: claimed inexperience with specific filings, personal hardships, and disagreement over strategy. | Court found violations including Prof.Cond.R. 1.1, 1.3, 1.4(a)(3),(4), and 1.15(c); rejected a 1.16 refund finding where not pleaded. |
| What sanction is appropriate? | Relator sought a full two-year suspension, restitution, and extended monitored probation. | Cheselka requested a one-year fully stayed suspension conditioned on restitution. | Court imposed two-year suspension with the second year stayed on conditions (no further misconduct, $2,500 restitution within 60 days, OLAP evaluation, payment of costs), CLE and OLAP-compliance as reinstatement conditions, plus one year monitored probation after reinstatement. (Concurring justice would have specified probation conditions more explicitly.) |
Key Cases Cited
- Disciplinary Counsel v. Folwell, 129 Ohio St.3d 297 (suspension with one year stayed for pattern of neglect, incompetence, dishonesty)
- Disciplinary Counsel v. Talikka, 135 Ohio St.3d 323 (two-year suspension with second year stayed for multiple offenses and mitigating circumstances)
- Toledo Bar Assn. v. Stewart, 135 Ohio St.3d 316 (two-year suspension with stay for neglect and cooperation issues)
- Cincinnati Bar Assn. v. Rothermel, 112 Ohio St.3d 443 (discipline pleading and notice principles)
- Disciplinary Counsel v. Agopian, 112 Ohio St.3d 103 (primary purpose of discipline is public protection)
- Disciplinary Counsel v. Gonzalez, 138 Ohio St.3d 320 (use of restitution and reinstatement conditions)
- Allen Cty. Bar Assn. v. Williams, 95 Ohio St.3d 160 (monitor access to files and monitoring attorney duties)
- Disciplinary Counsel v. Bennett, 146 Ohio St.3d 237 (probation and court-imposed conditions)