UR

BEFORE THE BOARD OF COMMISSIONERSON

GRIEVANCES AND DISCIPLINEOF

THE SUPREME COURT OF OHIO

In Re:

Reinstatement of

Fred BurkliolderAttorney Registration No. 0014094

Respondent

Ohio State Bar Association

Relator

Case No. 07-060

Findings of Fact,Conclusions of Law andRecoinmendation of theBoard of Commissioners onGrievances and Discipline ofthe Supreme Court of Ohio

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l. On November 9, 2009 a hearing for reinstatement was held in Columbus, Ohio

concerning the Reinstatement Petition of Fred J. Burlcholder.

2. Relator, the Ohio State Bar Association appeared through its counsel, Eugene

Whetzel. Relator did not oppose the reinstatement of the Petitioner. The Petitioner was

represented by James S. Adray.

3. The panel inembers hearing this proceeding were the Honorable Betli Whitmore,

Ninth District Court of Appeals, Akron, Stephen C. Rodeheffer of Portsmouth, and Walter

Reynolds, the Chair from Dayton.

4. None of the members of the panel is a resident of the appellate district where the

Petitioner resides or of the appellat. district in which the Petitioner resided at the time of his

suspension.

5. Petitioner was admitted to practice law on November 1, 1983.

6. On September 17, 2008 the Supreme Court found Petitioner in contempt of a prior

order issued in Toledo Bar Assn. v. Burkholder, 109 Ohio St.3d 443, 2006-Ohio 2817. As a

result of the order of contempt, Petitioner's six-month stayed suspension was revoked. The

circumstances resulting in the six-month stayed suspension concetned misconduct involving

improper sexual advances toward a client. See Toledo Bar Assn. v. Basrkholder, 119 Ohio St.3d

1452, 2008-Ohio-4665 (Table).

7. Earlier, in In re Atty. Registration Suspension, 116 Ohio St.3d 1420, 2007-Ohio-

6463, the Supreme Court suspended Petitioner's license for failure to properly register as an

attorney. And before that, on April 16, 2007, the Supreme Court issued an interim suspension of

Petitioner's license to practice law because he was in default of court-ordered child support. See

In re Burkholder, 113 Ohio St.3d 1455, 2007-Ohio-1751.

8. Oti February 26, 2009, in Ohio State Bar Assn. v. Burkholder, 121 Ohio St.3d

262, 2009-Ohio-761, Petitioner wasindelinitely suspended from the practice of law effective

April 16, 2007, based upon failing to comply with child support obligations, failing to comply

witli attorney-registration requirements and conviction of three offenses in Massachusetts --

assault and battery, threatening to commit a crime, and violation of an abuse prevention order.

The victim of these crimes was Christine Felix, Petitioner's fianc6 at the time and with whorn he

resided.

9. In the Supreme Court's decision to indefinitely suspend Petitioner, the Court

noted that Petitioner was an alcoholic and his disease contributed to the misconduct: "We agree

that Respondent, an alcoholic now in recovery, conimitted professional niisconduct as found by

the board, and because the misconduct resulted in part from his disease, we find that an indefinite

suspension is appropriate." Id. at 631.

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10. In a petition for reinstatement, the burden of proof is on the Petitioner to establish

by clear and convincing evidence: ( 1) that he has made appropriate restitution to the persons

who were harnied by his misconduct (where applicable); (2) that he possesses all of the mental,

educational and moral qualifications that were required of an applicant for admission to the

practice of law in Ohio at the time of his original admission; (3) that he has complied with the

continuing legal education requirements of Gov. Bar R. X, Section 3(G); and (4) that he is now a

proper person to be readinitted to the Bar of Ohio, notwithstanding the previous disciplinary

action taken againsthim. Gov. Bar R. V(10)(E)(l)-(4). See also Disciplinary Counsel v.

Ridenbaugh, 122 Ohio St.3d 583, 2009-Ohio-4091.

11. In addition to the requirements in Gov. Bar R. V(10)(B) through (E), the Supreme

Court made the following conditions a prerequisite to Respondent's reinstatement: "(1)

Respondent shall present evidence that he has and continues to participate actively and

rneaningfully in the Lawyers Support System of the Ohio Lawyers Assistance Program; (2)

Respondent shall present evidence that he has entered and continues in treatment with a

psychiatrist, psychologist, or other licensed health-care professional to address his history of

domestic violence; (3) Respondent shall present evidence that he has completed all continuing

legal education requirements; (4) Respondent shall present evidence that he is in compliance

with all applicable court orders for payment of child support; [and], (5) Respondent shall present

a report from a psychiatrist, psychologist, or other licensed health-care professional st'ating that

to a reasonable degree of psychiatric, psychological, or scientific certainty or probability, (a)

respondent is emotionally and psychologically able to withstand the pressures and demands

associated with the practice of law and (b) his mental health will not impair his ability to meet

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the demands of the practice of law. The report shall have been prepared from an assessment

conducted witlzin 30 days of the petition for reinstatement and shall be made available to relator

upon request." 121 Ohio St.3d 265-266.

12. Based upon evidence presented at the hearing, the panel finds by clear and

convincing evidence that Petitioner satisfied each of the following:

a. that Petitioner possesses all of the mental, educational, andmoral qualifications that were required of Petitioner foradmission to the practice of law in Ohio at the time of hisoriginal admission;

b. that Petitioner has complied with the continuing educationrequirements of Gov. Bar R. X, Section 3(G); and

C. that Petitioner is a proper person to be readmitted to the Barof Ohio, notwithstanding the previous disciplinary actiontaken against him.

13. Also, the panel finds by clear and convincing evidence that Petitioner presented

evidence satisfying the additional requirements established by the Supreine Court for

reinstatement set forth above in paragraph 11.

14, In this case, there was no obligation for Petitioner to make restitution.

15. With respect to the question of Petitioner's mental, educational and moral

qualifications, such were shown, by clear and convincing evidence, through the testimony of

Scott Mote, the Executive Director of the Ohio Lawyers Assistance Program (OLAP), the direct

and cross-examination of the Petitioner, and the October 15, 2009 psychological evaluation

report of Dr. Gregory Forgac, a clinical psychologist.

16. Mr. Mote testified that in 2007, Petitioner, while residing in Massachusetts,

contacted OLAP and requested a referral for his drinking problem. Petitioner wasreferred to the

Massachusetts Lawyers Concerned for Lawyers Program ("LCL"). (Tr. 14) Since 2008, Mote

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testified that he has been in communication with Petitioner and actually met Petitioner in April

2009. (Tr. 14-15)

17. Mote confirmed the Petitioner's sobriety date as April 2007 and that he (the

Petitioner) was showing up for his sessions and basically doing what he agreed to do including

attending not less than three AA meetings per week and contiinting to totally abstain from

alcohol and avoid any kind of drugs except for approved prescription medications.

18. Mote concluded that the Petitioner was in full compliance with his OLAP

contract, which was entered into effective as of October 14, 2008 and was set to continue until

October 14, 2012. Even though the OLAP contract is set to expire on October 14, 2012, Mote

testified that the contract can be extended with the consent of the Petitioner or by court order.

Mote also testified that he suspended the $200.00 per month administrative fee because the

Petitionerlaoked employment atid the obligation to pay his child support payment took priority.

Mote testified that once the Petitioner's income and employment situation inlproves, OLAP

expects the Petitioner to pay the suspended installments. (Tr. 17-18)

19. Since the Petitioner's mental and moral lapses were caused, in part, by his

alcoholism, the panel was concerned regarding Petitioner's recovery. Mote testified that as long

as Burl<holder contimies in his recovery program - which is a life long commitment - he sees no

reason why the Petitioner should not be able to resume practicing law. (Tr. 19)

20. The direct, cross-examination and probing questions from the panel addressed to

the Petitioner also help to satisfy the panel that Petitioner has the mental, educational and moral

qualifications to return to the practice of law. Petitioner has been sober for over three years. IIe

appreciates that, should the Supreme Court perinit him to return to the practice of law, he cannot

afford to yield to temptation and start to drink again. Petitioner admitted that he had been in a

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recovery program before, but drifted away from the 12-step program and tried to stay sober on

his own. He failed and reverted to drinking. Now, he appreciates that he needs a sponsor and he

needs to stay involved with a program. Petitioner testified and appears to accept that maintaining

connections with the people in his support group is a major component to staying sober and

avoiding a relapse. (Tr. 35-37; 46-49)

21. In recomtnending reinstatement, the panel considered the October 15, 2009 letter

from Dr. Forgac. This document was identified and admitted into evidence as Exhibit 1. Dr.

Forgac stated as follows: "Mr. Fred Burkholder was seen for an appointment in my office today

as part of his treatment. I-le has been both cooperative and compliant in our sessions. 1'he

primary concern is with Mr. Burkholder's ability to practice law and his history of alcoholism

and domestic violence. These issues led to his professional misconduct and current inability to

practice law. However, as a result of his treatment both under my care and through his

completion of programs and participation in the Alcoholic Anonymous prograin (AA) and with

continuous sobriety since April 1, 2007, it is my opinion that he is currently fit and ready to

resume the practice of law. This man is managing his temper and alcoholism on a regular basis

by his involvement in treatinent, attendance at AA meetings and reliance upon his support

system in Toledo and Boston. Mr. Burkholder is well aware of his personal vulnerabilities and

strategies for dealing with them including having an effective support system. It is my

professional opinion that all of his disability symptoms are currently managed and he poses no

threat to the public if permitted to engage in the practice of law. Through his treatment he has

accepted full and complete responsibility for his actions. Mr. Burkholder has, in my opinion,

completed his treatment with me."

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22. Dr. Porgac's letter and opinions expressed therein satisfied the Supreme Court's.

requirements as set'forth in paragraph I 1 above and helped support this panel's opinion that the

Petitioner possesses all of the mental, educational and moral qualifications required to return to

the praotice of law.

23. Regarding the requirement that there be clear and convincing evidence that

Petitioner is a proper person to be readmitted to the practice of law, notwithstanding the previous

disciplinary action, the panel considered that the misconduet which led to the disciplinary action

evolved from the Petitioner's alcoholism. So long as the Petitioner stays in the 12-step program

and recognizes that recovery is a daily commitment, he appears to be able to live with and

successfully manage his addictions. The testimony supports that the Petitioner is a changed

person, has surrendered to his disease and acknowledges that he cannot control his disease alone.

He needs continuous outside help.

24. Petitioner admits that while drinking he was arrogant and was not a good father or

husband. Now he appreciates the need to make amends directly to those hurt by his actions and

is attempting to do so. During the hearing, the panel expressed some concern regarding

Petitioner's anger when he discussed his "alleged" threat to kill Ms. Felix, The panel was

concerned that Petitioner's initial explanation for his misconduct tended to deny responsibility

for the wrong committed or the harm caused, However, considering Petitioner's testimony that

at the time of his nlisconduct, he was consuming on a daily basis "a gallon or half gallon of

vodka a. day, two bottles of wine a day, and oftentimes three or four beers" (Tr. 93), the panel

gives credibility to the Petitioner's explanation that he just does not recall making the tlireat.

The panel thinks that it is important that Petitioner eventually acknowledged that he was

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responsible for the excessive consumption and that his lack of inemory was no excuse for his

inappropriate misconduct.

25. The panel also finds by clear and convincing evidence the following:

a. the Petitioner has complied witli , the continuing legaleducation requirements of Gov. Bar R. X(3)(G) and asspecitically required by the Supreme Court's February 26,2009 decision;

b. the Petitioner has entered and continues in treatment with apsychiatrist, psychologist, or other licensed healthcareprofessional to address his history of domestic violence;

c. the Petitioner has been and continues to participate activelyand meaningfulty in the Lawyer Support System of theOhio Lawyers Assistance Program;

d. the Petitioner in accordance with Exhibit 3 is in compliancewitli all applicable court orders for payment of childsupport; and

C. the Petitioner, by presenting the report of Dr. Forgac(Exhibit 1) complied with the requirement that apsychologist state to a reasonable degree of psychiatric,psychological or scientific certainty or probability that (a)petitioner is emotionally and psychologically able towithstand the pressures and demands associated with thepractice of law and (b) that petitioner's mental health willnot impair his ability to meet the demands of the practice oflaw.

RECOMMENDATION

Based upon the foregoing, the panel recomtnends that Petitioner be reinstated to the

practice of law in Ohio with the condition that Petitioner's OLAP contract continue for an

additional two (2) years beyond its current expiration date of October 14, 2012. This additional

two-year extension is consistent with the request by the Ohio State Bar Association that if

Petitioner is reinstated, he continue to be monitored and will help to mitigate the panel's concern

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that Petitioner suffered a relapse when he attempted to stay sober without staying in the 12-step

program. Petitioner testified that he had no objection to an extension of the OLAP contraet. All

costs of this proceeding shall be paid by the Petitioner.

BOARD RECOMMENDATION

Pursuant to Gov. Bar Rule V(10)(G)(5) and (6), the Board of Conimissioners on

Grievances and Discipline of the Supreme Court of Ohio considered this matter on April 9,

2010. The Board adopted the Findings of Fact, Conclusions of Law and Recommendation of the

Panel and recommends that Respondent, Fred Burkholder, be readmitted to the practice of law in

the State of Ohio. The Board further recommends that the cost of these proceedings be taxed to

Respondent in any disciplinary order entered, so that execution may issue.

Pursuant to the order of the Board of Commissioners onGrievances and Discipline of the Suprenie Court of Ohio,I hereby certify the foregoing Findings of Fact, Conclusionsof I.aw, and Recommendation as those of the Board.

'ONATHAN W. MARS IALL, SecBoard of Commissioners onGrievances and Discipline ofthe Supreme Court of Ohio

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^jj GUWjpo1tR°VlC

c 4.e npx.ew ^.anrt afToledo Bar Association,

Relator,V.

Fred J. Burkliolder,Respondent.

Case No. 05-2394

ORDER

.

ta SEP 17 2008

SALRtt Of COUR7yUPFtFIUE COURT OF OHIO

On June 21, 2006, this court suspended respondent, Fred J. Burkholder, from the practiceof law for a period of six months and stayed the suspension on the condition that respondentcommit no further misconduct during the stayed suspension period. The court further ordeiedrespondent to pay the costs of proceedings before the Board of Commissioners on Grievancesand Discipline in the amount of $2,153.51 on or before September 19, 2006, and to pay any costsrelated to the publication of the order. Respondent was invoiced on March 6, 2007, forpublication costs in the amount of $362.00. Respondent has not paid board costs or publicationcosts as ordered by the court. On August 19, 2008, this court issued an order to show cause whythe respondent should not be found in contempt and suspended for failure to comply with thecourt's order. Respondent did not file a response to the show cause order. Upon considerationthereof,

It is ordered and adjudged by this court that respondent Fred J. Burkholder, attorneyregistration number 0014094, last known address in Sommerville, Massachusetts, is found incontempt for failure to comply with the court's June 21, 2006, order.

It is further ordered that the previously imposed six-month stay is revoked and thatrespondent shall serve the entire six-month suspension imposed on June 21, 2006, as a period ofactual suspension.

It is further ordered that before entering into an employment, contractual, or consultingrelationship with any attorney or law finn, the respondent shall verify that the attomey or lawfirm has complied with the registration requirements of Gov.Bar R. V(8)(G)(3). If employedpursuant to Gov.Bar R. V(8)(G), respondent shall refrain from direct client contact except asprovided in Gov.Bar R. V(8)(G)(1), and from receiving, disbursing, or otherwise handling anyclient trust funds or property.

It is further ordered that, pursuant to Gov.Bar R. X(3)(G), respondent shall complete onecredit hour of continuing legal education for each month, or portion of a month, of thesuspension. As part of the total credit hours of continuing legal education required by Gov.BarR. X(3)(G), respondent shall complete one credit hour of instruction related to professionalconduct required by Gov.Bar R. X(3)(A)(1), for each six months, or portion of six months, of thesuspension.

It is further ordered that respondent shall not be reinstated to the practice of law in Ohiountil (1) respondent pays the board and publication costs, including any and all accrued interest;

ELECTf^ONIt:ALILY,jSO!

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(2) respondent complies with the requirements for reinstatement set forth in the Supreme CourtRules for the Government of the Bar of Ohio; (2) respondent complies with the Supreme CourtRules for the Government of the Bar of Ohio; (3) respondent complies with this and all otherorders of the Court; and (4) this court orders respondent reinstated.

It is further ordered that respondent shall immediately:

1. Notify all clients being represented in pending matters and any co-counsel ofrespondent's suspension and consequent disqualification to act as an attorney after theeffective date of this order and, in the absence of co-counsel, also notify the clients toseek legal service elsewhere, calling attention to any urgency in seeking the substitutionof another attorney in respondent's place;

2. Regardless of any fees or expenses due respondent, deliver to all clients beingrepresented in pending matters any papers or other property pertaining to the client, ornotify the clients or co-counsel, if any, of a suitable time and placewhere the papers or other property may be obtained, calling attention to any urgency forobtaining such papers or other property;

3. Refund any part of any fees or expenses paid in advance that are unearned or not paid,and account for any trust money or property in the possession or control of respondent;

4. Notify opposing counsel in pending litigation or, in the absence of counsel, theadverse parties, of respondent's disqualification to act as an attorney after the effectivedate of this order, and file a notice of disqualification of respondent with the court oragency before which the litigation is pending for inclusion in the respective file or files;

5. Send all notices required by this order by certified mail with a return address wherecommunications may thereafter be directed to respondent;

6. File with the Clerk of this Court and the Disciplinary Counsel of the Supreme Court anaffidavit showing compliance with this order, showing proof of service of noticesrequired herein, and setting forth the address where the respondent may receivecommunications; and.

7. Retain and maintain a record of the various steps taken by respondent pursuant to thisorder.

It is further ordered that respondent shall keep the clerk, the Toledo Bar Association, andthe Disciplinary Counsel advised of any change of address where respondent may receivecommunications.

It is further ordered, sua sponte, that all documents filed with this court in this case shallmeet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio,including requirements as to form, number, and timeliness of filings.

It is further ordered, sua sponte, that service shall be deemed made on respondent bysending this order, and all other orders in this case, by certified mail to the most recent addressrespondent has given to the Office of Attotney Services.

It is further ordered that the clerk of this court issue certified copies of this order asprovided for in Gov.Bar R.V(8)(D)(1), that publication be made as provided for in Gov.BarR.V(8)(D)(2), and that respondent bear the costs of publication.

Chief Justice

ON COMPUTER-KMR

^Vrurt af 04t.a JUN 2'12006

Case No. 05-2394^Toledo Bar Association,

Relator, ^^ RTIFIED REPORT BY THEV. JL BOARD OF COMMISSIONERS ON

Fred J. Burkholder, GRIEVANCES AND DISCIPLINE OFRespondent. THE SUPREME COURT

ORDER.l

The Board of Commissioners on Grievances and Discipline filed its Final Reportin this Court on December 21, 2005, recommending that pursuant to Rule V(6)(B)(5) ofthe Supreme Court Rules for the Government of the Bar of Ohio the respondent, Fred J.Burkholder, be publicly reprimanded. Respondent filed no objections to said FinalReport, and this cause was considered by the Court. On consideration thereof,

IT IS ORDERED AND ADJUDGED by this Court that pursuant to Gov.Bar R.V(6)(B)(3) and consistent with the opinion rendered herein, respondent, Fred J.Burkholder, Attorney Registration Number 0014094, last known business address inToledo, Ohio, be suspended from the practice of law for a period of six months, stayed onthe condition that respondent commit no further misconduct during the stayed suspensionperiod.

IT IS FURTHER ORDERED that respondent be taxed the costs of theseproceedings in the amount of Two Thousand One Hundred Fifty-Three Dollars and Fifty-One Cents ($2,153.51), which costs shall be payable to this Court by certified check ormoney order on or before 90 days from the date of this order. It is further ordered that ifthese costs are not paid in full on or before 90 days from the date of this order, interest atthe rate of 10% pei annum shall accrue as of 90 days from the date of this order, on thebalance of unpaid Board costs. It is further ordered that if costs are not paid in full on orbefore 90 days from the date of this order, respondent may be found in contempt andsuspended until costs, including any accrued interest, are paid in full.

IT IS FURTHER ORDERED, sua sponte, by the Court, that within 90 days of thedate of this order, respondent shall reimburse any amounts that have been awardedagainst the respondent by the Clients' Security Fund pursuant to Gov.Bar R. VIII(7)(F).It is further ordered, sua sponte, by the Court that if, after the date of this order, theClients' Security Fund awards any amount against the respondent pursuant to Gov.Bar R.VIII(7)(F), the respondent shall reimburse that amount to the Clients' Security Fundwithin 90 days of the notice of such award.

Fh/di C I t• , f. 8G E N G E t, CLERKSiJPREMC CGtiRT OF C7HiO

IT IS FURTHER ORDERED, sua sponte, that all documents filed with this Courtin this case shall meet the filing requirements set forth in the Rules of Practice of the

Supreme Court of Ohio, including requirements as to form, number, and timeliness offilings.

IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made onrespondent by sending this order, and all other orders in this case, by certified mail to themost recent address respondent has given to the Attomey Registration Section.

IT IS FURTHER ORDERED that the Clerk of this Court issue certified copies ofthis order as provided for in Gov.Bar R. V(8)(D)(1), that publication be made as providedfor in Gov.Bar R. V(8)(D)(2), and that respondent Aarthe costs of publication.

GffiGINALON ublE'^^ ^ ALr,

BEFORE THE BOARD OF COMMISSIONERSON

GRIEVANCES AND DISCIPLINEOF

THE SUPREME COURT OF OHIO

In Re:

Complaint against

Fred J. BurkholderAttorney Reg. No. 0014094

Respondent,

Toledo Bar Association

Relator.

Case No. 05-038

Findings of Fact,Conclusions of Law andRecommendation of theBoard of Commissioners onGrievances and Discipline ofthevupreme Court of Ohio

1J^.^,

1. INTRODUCTION ( 1ti i..cHK I_, SE.;i^tirlU!t. t,{i.?'=-; t)lUhilU_.J

This matter was heard on Wednesday, September 21, 2005 at the Toledo Bar Association

before a Panel consisting of Cynthia A. Fazio, Esq., Cincinnati, Hamilton County, Ohio; Jana E.

Gutman, Esq., Lima, Allen County, Ohio and Richard C. Alkire, Esq., Chair, Independence and

Richfield, Cuyahoga and Suinmit Counties, Ohio. This I-learing on the Merits was conducted

pursuant to Gov. Bar Rule V Sec. 6(G). None of the Panel members was from the district from

which the Complaint originated or served as members of the Probable Cause Panel that certified

this matter to the Board. Representing the Relator Toledo Bar Association were Bonnie R.

Rankin, Esq., Gregory L. Arnold, Esq., and Jonathan B. Cherry, Esq., Bar Counsel, and

representing the Respondent Fred J. Burkholder was James D. Caruso, Esq.

H. PI2OCED[JRAL BACKGROUND

The Coniplaint in this matter was filed on April 18, 2005 and was served upon the

Respondent. The Complaint alleged that Respondent was guilty of misconduct arising from his

representation of the grievant, Laurel A. Alexander, who had retained him to represent her in a

dissolution of marriage action. Essentially, the Complaint alleged that Respondent made

inappropriate advances toward the grievant, niade inappropriate physical contact with her on at

least one occasion and harassed her with over 100 cell telephone calls during the period of time

he represented her. Relator alleged that the inappropriate conduct on the part of Respondent

constituted a violation of DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that

adversely reflects on a lawyer's fitness to practice law) and DR 5-101(A)(1) (except with the

consent of the client after full disclosure, a lawyer shall not accept eniployment if the exercise of

professional judgment on behalf of the client will be or reasonably may be affected by the

lawyer's financial, business, property, or personal interests).

Thereafter, through counsel, Respondent filed his Answer to the Complaint denying that

his conduct, during the course of his representation of the grievant, violated the Disciplinary

Rules with which he had been charged.

On June 27, 2005, an Order was issued by the Panel Chair setting this matter for formal

}iearing on the Complaint for Wednesday, September 21, 2005.

At the time of the Hearing, the parties submitted Stipulations. As it relates to exhibits,

Respondent Exhibits I through 10, Exhibits that were attached to the Stipulation, Joint Exhibits I

through 6 and Relator's Exhibits A and B were admitted without objection. Duriag the course of

the Hearing, the following testimony was heard: grievant Laurel Alexander; Lynn Yarnboon (a

friend and co-worker of Laurel Alexander); Barb Specht (a co-worker of Laurel Alexander);

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.lef'frey Goldstein, Esq. (an attorney who represented Laurel Alexander's husband, Tini

Alexander, in connection with their separation) and Respondent Fi-ed Burkholder.

III. FINDINGS OF FACT

The Panel finds that the following facts have been established by clear and convincing

evidence:

I) Respondent Frcd Burkholder has been a licensed attorney since Noveniber 1,

1983.

2) 1-le is a sole practitioner with a practice predominantly comprised of family law

matters with some representation involving traffc-related matters and Social Security disability.

3) On April 20, 2004, Respondent was retained by grievant Laurel Alexander to

represent her in connection with a dissolution of her marriage to Timothy Alexander. She had

previously divorced Mr. Alexander in August, 1998 and had remarried him, With Mr.

Alexander, she had two children, Lauren Alexander, born July 8, 1996, and Forrest Alexander,

born January 21, 1995.

4) At the initial meeting in Respondent's office, Respondent agreed to a flat fee of

$500 to handle the proposed dissolution. During the course of this meeting, Respondent was

advised by Ms. Alexander that she wanted to obtain a dissolution as soon as possible, and she

was willing to receive $70,000 as a full and final settlement of the property division. At that

time, she was earning approximately $28,000 annually, and her husband was earning $45,000

annually. Apparently, Mr. and Mrs. Alexander had received the proceeds from a personal injury

settlement from which the $70,000 was to be paid. Also, each of them had received an annuity

in connection with the personal injury settlement.

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5) Ilaving discussed in detail all of the marital assets, Ms. Alexander expressed that

her husband was going to require numerous surgeries in the future and that she wanted him to

have the house so that the children would have some stability. Each was to keep his and her own

annuity from the settlement. She declined to seek spousal support. "I did tell him I wanted it

done as quickly and painlessly as possible... I was afraid of my husband. He had threatened

physical harm over certain things and I just wanted to get out." At the conclusion of the

interview, Respondent agreed to prepare documents consistent with this interview and complete

the sanle within seven days, although he expressed his reservations about the adequacy of this

proposed settlement.

6) At the end of the interview, Ms. Alexander stated that Respondent said to her that

she was beautiful, but that lie was not allowed to take her out until the dissolution was over.

7) 1-lowever, in that regard, in Mr. Burkholder's response to the Toledo Bar

Association's investigator (Relator's Exhibit A), he indicated the following:

"I do admit, that at either our initial meeting or subsequent conversation, statingto her that I found her interesting and attractive and had a desire to date her andexplained that as I could not both represent her and date her I would prefer datingher. She indicated she was not interested and wanted me to continue representingher, which I did."

8) Subsequent to this initial meeting, Respondent met with both Mr. and Mrs.

Alexander in Respondent's office, at which meeting he advised Mr. Alexander that he did not

represent him, but that Mr. Alexander had a right to his own counsel.

9) Ultimately, Mr. Alexander was represented by attorney Jeffrey Goldstein, Esq. in

connection with this dissolution. Thus, on April 30, 2004, the Alexanders agreed to the terms of

the Separation Agreement and shared parenting arrangement. About two weeks thereafter, Mrs.

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Alexander moved out of her home. Shortly afier moving out of the marital home, Mrs.

Alexander began dating Kevin Murphy.

10) At the time that the Separation Agreement was entered into, the $70,000 which

was to be paid to her was in a joint savings account. The actual separation papers were not

signed by Mrs. Alexander until she received the $70,000 which ultimately occurred on May 26,

2004. At that time, in the presence of Mr. Goldstein and Mr. Burkholder at Mr. Burkholder's

office, Ms. Alexander was presented a check, and she then signed the necessary documents. In

the interim, between April 30 when the agreement was made and May 26 when she received the

check, her husband had removed the money from the savings account, about which she had

become hysterical. This activity caused her to call Mr. Burkholder numerous times.

11) Mr. Burkholder's telephone records indicate that he received nine telephone calls

from Mrs. Alexander between April 30 and IY1ay 26, 2004. During that same period of time, Mr.

Burkholder called Ms. Alexander 39 times. On two occasions during this period of time,

Respondent called Ms. Alexander after 8:00 p.m. - once at 8:12 p.m. and once at 10:24 p.m. Of

those calls made by Mr. Burkholder to Ms. Alexander between April 30 and May 26, five were

made during the lunch hour. Including those five, 43 were made during business hours from 8:00

a.m. to 6:00 p.m. See Respondent's summary of telephone calls to telephone numbers of Ms.

Alexander.

12) The parties stipulated that 106 telephone calls were made to or from Mr.

Burkholder's telephone to Ms. Alexander. Of those 106 telephone calls, 47 are listed as having

lasted only one minute. Of the remaining 59 calls, 40 lasted between one and five niinutes with

the remainder between five and 13 minutes. Ms. Alexander initiated 32 calls to Respondent

during this same time frame. On 17 days, calls were made by each of them to the other.

5

13) Ms. Alexander testified that she could not say how many calls Mr. Burkholder

made to her at work in order to ask lier out to lunch or dinner. While she did testify to at least

tive calls, that was a number that she just tlirew out, and she could not really recall how manv

such calls were made.

14) Ms. Lynn Yarnboon was present during one such personal telephone call when

Mr. Burkholder asked the grievant to go away witlt her for the weekend. This clearly upset the

grievant. Ms. Yarnboon testified that Respondent had been calling the grievant "a lot on her cell

phone, calling her at home, calling her at work."

15) Ms. Yarnboon testified that she was present when Mr. Burkholder made (hree

calls in a row to Ms. Alexander at a lunch. They were eating lunch at Focaccia's at that time.

Those three calls concerned asking Ms. Alexander out to dinner, which she declined. She

testified ihat those telephone calls were made in May and could very well correspond with May 3

or May 6. If those three calls had been made in June, they may correspond with June 5 or June

10, depending on when lunch occurred and based upon the telephone records.

16) What is clear from Relator's allegation concerning an excessive number of

telephone calls made by Mr. Burkholder for purely personal reasons is that indeed Mr.

Burkholder did, on at least several occasions, call the grievant for purposes of arranging a

personal meeting either for lunch or dinner. It is not clear exactly how many calls were made for

such purpose or exactly when such calls were made. An analysis of the telephone records, while

supporting some of Relator's claims also corroborate Respondent's claim that he returned

grievant's telephone calls, left messages during business hours and attempted to be responsive to

her concerns, especially during the period of time when she recognized that her husband had

withdrawn the money which would fund their agreed property division settlement.

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17) Barb Specht testilied concerning an incident at Nick & Jimniy's, a local bar, when

Mr. Burkliolder came to the bar where Ms. Specht was sitting with the grievant. Mr. Burkholder

sat next to Ms. Alexander on her left, while Ms. Specht was on Ms. Alexander's right. Mr.

Burkholder put his arni around Ms. Alexander, pulled her close to him, and they carried on a

conversation for a period of time. A couple of times, Ms. Alexander asked Mr. Burkholder to

remove his hand from her thigh. Ultimately, Ms. Specht asked him to do the same, and she

picked up his hand and moved it off Ms. Alexander's thigh. A short time thereafter, Ms. Specht

and Ms. Alexander left. The grievant has asserted that Mr. Burkholder was intoxicated during

this encounter, but Ms. Specht indicated otherwise. It is not clear exactly on what day this

encounter at Nick & Jimmy's took place. Ms. Yarnboon remembcred meeting Respondent at

Nick & Jimmy's in the latter part of April, 2004. Ms. Alexander thought that this encounter at

Nick and Jimniy's took place on the night she received her $70,000 check, May 26. May 26 was

a Wednesday, while Ms. Alexander thought the encounter occurred on a Thursday. The

Complaint alleged that the encounter took place on or about May 30, 2004. In any event, the

Panel believes that such an encounter occurred, and what did take place was at the very least

inappropriate physical contact in a social environment during the time Respondent was

representing Ms. Alexander.

18) The third allegation of inappropriate conduct involves an encounter between the

grievant and Mr. Burkholder at his home which was located about a mile from grievant's home.

Respondent asserts that he invited grievant to his home.

Respondent suggests that Ms. Alexander came to his home and drove him to the Village Inn for a

meal. During that encounter, she received a telephone call from her boyfriend and had to leave

right away, so she drove him back to his home and came into his home at that time. Respondent

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alleges that while they were walking into his living room, he fell onto the couch. Ms. Alexander

pulled her skirt over the top of herself and jumped on top of him. During that encounter, which

shocked him, he then asked her if she wanted to see his penis.

19) Ms. Alexander's recollection of this event, however, is far different. She testified

that she was at Respondent's home on one occasion with her children playing with his. 1'hey

were seated on the back deck while the children were playing in the backyard. She was talking

to Mr. Burkholder about how horrible her husband was being to her, and that he was indeed

nasty and bitter to her. Mr. Burkholder's comment to her was that she must be good in bed

which is why her husband didn't want her to leave and that perhaps she would never want to see

another penis again if she saw Mr. Burkholder's. The children were allegedly no more than 15

feet away when this conversation allegedly occurred.

20) It is neither clear nor convincing as to which version of this story is the accurate

one. What is clear and convincing is Mr. Burkholder's comment about his anatomy which was

made during the course of his representation of the grievant.

21) Ultimately, afier the grievant received her $70,000 check and signed the

Dissolution Agreement, it was tiled with the court on June 4, 2004. A court Hearing date on that

Dissolution was set for August 9, 2004. After the Agreement had been filed, she asked

Respondent to amend the Shared Parenting Agreement. Mr. Burkholder followed through on her

request to amend the Shared Parenting Agreement. Then, Ms. Alexander terminated her

attorney-client relationship with Mr. Burkholder on June 28, 2004.

22) Ms. Alexander worked until June 15, 2004, at which time she lost herjob.

Admittedly, Ms. Alexander and Lynn Yarnboon were terminated for cause.

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23) Ms. Alexander claims she had second thoughts about her settlement because she

was overwhelmed with everything that was occurring and that her husband had been bullying

her. Also, she felt pursued by Mr. Burkholder who had expressed to her that he could only date

her after the dissolution was final. Until she had the money from the settlement, she felt she

could not hire another lawyer.

24) On June 28, 2004, Ms. Alexander notified Mr. Burkholder in writing that she was

terminating his services as her attorney. On July 1, 2004, Mr. Burkholder filed a Motion to

Withdraw as Counsel of Record, and the court granted this Motion on July 14, 2004, Ms.

Alexander filed the grievance on July 14, 2004 which was received by the Toledo Bar

Association on July 15, 2004.

25) One of the reasons she filed this grievance, and no other action to seek

compensation from Mr, Burkholder for his conduct, was at the suggestion of her new lawyer,

Karen Novak, Esq. Ms. Novak suggested that Ms. Alexander file a grievance as one of the

options to pursue because of her belief that the Respondent had inappropriately propositioned her

during the course of his representation of her,

26) Additionally, this argument has become one of the arguments used by Ms. Novak

on Ms. Alexander's behalf to vacate the Dissolution Agreement which had been filed with the

court. To date, this issue has not yet been resolved, and the Motion to Vacate the Dissolution

Agreement remains pending.

IV. CONCLUSIONS OF LAW

The Panel unanimously finds that the following violations of the Code of Professional

Responsibility have been demonstrated by clear and convincing evidence.

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27) Relator alleges that the conduct of IZespondent violated DR 1-102(A)(6) (a lawyer

shall not engage in any other conduct that adversely reflects on a lawyer's fitness to practice law)

and DR 5-101(A)(1) (except with the consent of the client after full disclosure, a lawyer shall not

accept employment if the exercise of professional judgment on behalf of the client will be or

reasonably may be effected by the lawyer's financial, business, property, or personal interests).

Even in light of somewhat conflicting testimony as outlined above, the clear and convincing

testimony which did surface from the hearing supports Relator's contention that each of these

Disciplinary Rules were violated by virtue of Respondent's conduct during the course of his

representation of Laurel Alexander from April 20, 2004 through June 28, 2004. Indeed, Mr.

Burkholder, from the inception of the attorney-client relationship, was well aware of his

attraction to Ms. Alexander which he verbalized at their very first professional contact. Even

though Mr. Burkholder felt that this was a rather simple matter given the parameters of Ms.

Alexander's desired settlement, his personal interest clearly presented a conflict which had the

potential of placing his interests over his client's in violation of DR 5-101(A)(1). That he

attempted to maintain a personal relationship with Ms. Alexander through requesting her

presence at lunch and dinner and in connection with the one encounter with her at Nick &

Jimmy's Bar, supports a finding of his violation of DR 1-102(A)(6).

V. AGGRAVATION, MITIGATION and RECOMMENDED SANCTION

The following mitigation factors apply to this matter:

28) By way of aggravation, Respondent had a selfish motive and the victim was

vulnerable given the context of her legal problem for which Respondent represented her.

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29) As it relates to mitigation, it has been stipulated that Respondent has no prior

disciplinary record. It has been further stipulated that Respondent has fully cooperated with the

Certified Grievance Committee in the course of its investigation.

30) In addition, Respondent has submitted seven character and reputation letters for

the Panel's consideration attesting to Respondent's professional acumen and good character.

Judge Ruth Ann Franks of the Lucas County Common Pleas Court has known Mr. Burkholder

for 20 years and has attested to his "balanced temperament and a respectful demeanor with my

staff, other lawyers and parties to lawsuits." Other colleagues of his who have referred him

clients have reported that they never received anything but positive comments from them

concerning the pursuit of their interests and his aggressive but professional manner in looking

after their interests.

31) Finally, this conduct took place during a period of time when the Respondent was

going through a divorce with his wife, and also was confronting a serious illness afflicting his

adolescent daughter.

32) Respondent has suggested that certain cases, while most closely analogous to this

one, demonstrate that the instant matter, should a Disciplinary Rule violation be found, would

warrant no more than a public ieprimand. 5ee Office ofDisciplinary Counsel v. Moore (2004),

101 Ohio St.3d 261, 2004-Ohio-734, in which the attorney was found to have violated DR I -

102(A)(5), DR 1-102(A)(6) and DR 5-101(A)(1). The court imposed the sanction of one year

suspension stayed with two year probation on conditions where Respondent admitted to an

extramarital affair he had with a client and also to inappropriate conversations with another

client); and In the Matter ofErvresl E. Yarborough (1999), 337 S.C. 245, 524 S.E. 2d 100 (the

South Carolina Supreme Court imposed a public reprimand even in light of a previous discipline

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matter resulting in an interim suspension to the Respondent, under circutnstances where tlie

Respondent had made unwanted sexual advances and cotnments to his client).

33) Relator, on the other hand, argues for a one year suspension with six months

stayed. The gravamen of Relator's argument is that Respondent has not really admitted his

conduct in a situation where the client was very vulnerable.

34) The Panel unanimously recommends that a public reprimand be issued given that

the clear and convincing evidence shows that the Disciplinary Rules Nvere violated by

Respondent's conduct. The Panel does not agree that Relator has shown, by clear and

convincing evidence, that each of the occasions of inappropriate behavior have occurred in

precisely the way Relator has argued. Respondent, likewise, has not presented an explanation

which causes the panel to conclude that no inappropriate conduct occurred. The panel

recognizes that it was not the Respondent's burden of proof to do so. However, based upon

Respondent's representations alone set forth in his response to the Bar Association's inquiry

concerning the grievance (Relator's Exhibit A), the Panel finds the basis for a violation of the

afoienientioned Disciplinary Rules. Respondent's counsel put it best: "The Panel must draw the

line between boorish conduct and a consummated affair with a client during representation."

35) While the affair may not have been consummated, Respondent was relentless in

his pursuit thereof. Of this the Panel was convinced and this was indeed clear from the

testimony and exhibits. As such, for this behavior, which is in violation of the Disciplinary

Rules, the Panei recommends a public reprimand.

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BOARD I2ECOMMENDATION

Pursuant to Gov. Bar Rule V(6)(L), the Board of Commissioners on Grievances and

Discipline of the Supreme Court of Ohio considered this matter on December 1, 2005. The

Board adopted the Findings of Fact, Conclusions of Law and Recommendation of the Panel and

recommends that the Respondent, Fred J. Burkholder, be publicly reprinianded in the State of

Ohio. The Board further recommends that the cost of these proceedings be taxed to the

Respondent in any disciplinary order entered, so that execution may issue.

Pursuant to the order of the Board of Commissioners onGrievances and Discipline of The Supreme Court of Ohio,I hereby certify the foregoing Findings of Fact, Conclusionsof Law, and Recommendations as those of the Board.

OJ^AT AN . MAR AL , ecr tarydoar of Commissioners on

Grievances and Discipline ofThe Supreme Court of Ohio

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