Disciplinary Counsel v. Pickrel (Slip Opinion)
2017 Ohio 6872
| Ohio | 2017Background
- Patricia A. Pickrel, admitted 1999 and registered inactive since 2005, worked as an independent contractor for Ulmer & Berne from 2005 and on a document-review project from Jan 2012–Nov 2015.
- She submitted biweekly time reports to the firm and was paid $65/hour; total payments from Jan 2012–Nov 2015 were $125,209.50.
- A firm audit after a November 2015 discrepancy showed Pickrel had overbilled the firm by more than $87,000 over four years (53–89% of annual compensation).
- Pickrel acknowledged the misconduct, reimbursed the firm $87,620 on Jan 5, 2016, and cooperated with the disciplinary investigation; she also submitted evidence of dysthymia that contributed to her misconduct.
- The Board found violations of Prof.Cond.R. 8.4(c) (dishonesty) and 8.4(h) (conduct reflecting adversely on fitness) and recommended a two-year suspension with one year stayed, continued counseling/OLAP compliance, and two years monitored probation upon reinstatement. The Supreme Court adopted the recommendation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pickrel violated professional-conduct rules by knowingly overbilling her firm | Disciplinary Counsel: Pickrel knowingly submitted false time reports and made false/misleading statements to conceal overbilling, violating Prof.Cond.R. 8.4(c) and (h) | Pickrel: Misbilling resulted from poor recordkeeping and computer problems; she cooperated, reimbursed, and has a mitigating mental-health condition | Court: Adopted Board — misconduct established; violated Prof.Cond.R. 8.4(c) and 8.4(h) |
| Whether an inactive attorney is subject to disciplinary rules for non-law-practice misconduct | Disciplinary Counsel: Rules apply to attorneys regardless of active status when misconduct indicates lack of characteristics relevant to practice | Pickrel: Misconduct did not arise from practicing law (argues lesser culpability) | Court: Inactive status does not preclude discipline; Rules apply (citing precedent) |
| Appropriate sanction for long-term, employment-related theft/dishonesty | Disciplinary Counsel: Significant suspension warranted given multi-year scheme and magnitude | Pickrel: Mitigating factors (no prior record, full restitution, mental-health treatment, cooperation) support stayed or reduced suspension | Court: Two-year suspension with one year stayed conditioned on counseling, OLAP compliance, no further misconduct; two years monitored probation on reinstatement |
| Whether mental-health evidence mitigates discipline | Disciplinary Counsel: Mitigation possible if disorder contributed and treatment shown | Pickrel: Submitted diagnosis, treatment history, and fitness to return to practice with supervision | Court: Accepted mitigating mental-health disorder; credited treatment and OLAP participation in sanctioning decision |
Key Cases Cited
- Disciplinary Counsel v. Bricker, 997 N.E.2d 500 (Ohio 2013) (dishonest billing can constitute theft supporting Rule 8.4(h) violation)
- Cincinnati Bar Assn. v. Washington, 847 N.E.2d 435 (Ohio 2006) (two-year suspension with substantial portion stayed for multi-insurer billing and conversion)
- Disciplinary Counsel v. Markijohn, 794 N.E.2d 24 (Ohio 2003) (stayed suspension for false reporting of retirement contributions to employer and tax authorities)
- Disciplinary Counsel v. Grigsby, 945 N.E.2d 512 (Ohio 2011) (conditionally stayed suspension with monitored probation for misuse of employer-issued credit card)
- In re Nicotera, 602 N.E.2d 612 (Ohio 1992) (inactive status does not preclude disciplinary action)