[This opinion has been published in Ohio Official Reports at 

.]




                  WARREN COUNTY BAR ASSOCIATION v. BUNCE.
            [Cite as Warren Cty. Bar Assn. v. Bunce, 

.]
Attorneys at law—Misconduct—One-year suspension with sanction stayed on
        conditions—Neglect of an entrusted legal matter.
   (No. 97-1277—Submitted December 2, 1997—Decided February 18, 1998.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
                     Discipline of the Supreme Court, No. 96-43.
                                  __________________
        {¶ 1} On April 15, 1996, relator, Warren County Bar Association, filed a
complaint with the Board of Commissioners on Grievances and Discipline of the
Supreme Court (“board”) against respondent, Jack P. Bunce of Lebanon, Ohio,
Attorney 

. The facts, as stipulated by the parties, giving
rise to relator’s complaint are summarized as follows.
        {¶ 2} On September 16, 1994, June Herman (formerly known as June
Schwartz), met with respondent to establish a guardianship for her father. At the
meeting, certain documents were executed and Herman gave respondent a $550
retainer. In addition, respondent informed Herman that he would file the necessary
documents with the court.          Respondent provided Herman with a document
regarding respondent’s need for an expert evaluation of Herman’s father.
Respondent instructed Herman that the evaluation needed to be returned to him in
order to facilitate the proceedings.
        {¶ 3} On September 21, 1994, Herman’s father died and on that date
Herman returned the expert evaluation report to respondent. Respondent then
advised Herman that she would need to sign new documents to initiate probate
proceedings with respect to her father’s will. Herman mentioned to respondent that
it was her belief that her father did not have a will and that he never had executed
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one. Herman signed several documents and she was told that they were necessary
“to probate a will.”
       {¶ 4} Subsequently, over a period of thirteen to fourteen months, Herman
telephoned respondent’s office on at least twelve occasions to check on the status
of her father’s estate, and she left messages for respondent to return her calls. On
each occasion, Herman spoke with respondent’s secretary. Herman was told by
respondent’s secretary that she needed to schedule an appointment. Respondent
did not return any of Herman’s telephone calls. Herman also personally appeared
at respondent’s office on three or four occasions to check on the status of the case
and was told by respondent’s secretary that respondent was “waiting on a court
date.” Herman was also told that “it takes time to get through the court system.”
       {¶ 5} On November 20, 1995, Herman went to the Warren County Probate
Court and learned that no documents had ever been filed with the court with respect
to the death of her father. Herman then went to respondent’s office to inform him
of what she had learned. Herman, again, spoke only with respondent’s secretary
and was told that there “had to be some mix up” and that respondent would be out
of the office for four to five days. Two days later, Herman hired new counsel to
handle her father’s estate. She sent a letter to respondent requesting that he return
the $550 retainer to her. Respondent did not respond to Herman’s request to return
the retainer. Thereafter, Herman filed, with relator, a “request for investigation”
regarding respondent’s inaction on her father’s estate and respondent’s failure to
return her telephone calls.
       {¶ 6} Respondent was informed of the pending investigation against him,
but he did not respond to relator prior to the time of the filing of the complaint. In
addition, on September 21, 1995, respondent had been temporarily suspended from
the practice of law for failing to comply with Gov.Bar R. X (attorney continuing
legal education requirements). Respondent was reinstated on November 2, 1995.




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                                January Term, 1998




       {¶ 7} On November 1, 1996, a panel of the board conducted a hearing with
respect to relator’s complaint. In a “written stipulation” submitted to the panel by
the parties, respondent admitted to failing to handle a legal matter entrusted to him,
he agreed to provide restitution to Herman, and he also agreed to undergo a
psychological evaluation.     Respondent and relator jointly recommended that
respondent be given a written reprimand. They also agreed that if respondent did
not complete the psychological evaluation and comply with treatment
recommended by the psychologist, respondent would be subject to a one-year
suspension from the practice of law.
       {¶ 8} At the hearing, respondent stated that he was a 1973 summa cum
laude graduate of Ohio State University School of Law, that he was on the school’s
law review, and that he was Order of the Coif. Since 1988, respondent has been a
sole practitioner. In addition, he works for the Legal Aid Society and he is also a
public defender in Mason, Ohio. Respondent testified that he was in the process of
going through a divorce and that his health problems adversely affected his practice.
Further, respondent testified that he suffers from sleep apnea, that he is a diabetic,
and that he has a heart condition.
       {¶ 9} At the close of the hearing, the panel agreed that respondent should
undergo a psychological evaluation and ordered him to submit the results to it.
Subsequently, an examination was conducted by a psychologist, who determined
that in addition to respondent’s other health concerns, respondent also suffered
from major depression that “may involve medication and certainly the
establishment, development, and maintenance of a psycho-therapy relationship.”
       {¶ 10} Thereafter, the panel submitted findings of fact, conclusions of law,
and recommendation to the board. The panel determined that respondent had
violated DR 6-101(A)(3) by neglecting a legal matter entrusted to him. The panel
recommended that respondent be suspended from the practice of law for one year,




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but that his suspension be stayed on the condition that his practice be monitored by
relator and that respondent seek and receive psychological treatment.
        {¶ 11} The board adopted the findings of fact and conclusions of law of the
panel. However, the board disagreed with the panel’s recommendation. Instead,
the board recommended that respondent be suspended from the practice of law for
a period of eighteen months with the final twelve months of that period stayed on
the condition that respondent’s practice be monitored and that he seek and receive
psychological treatment.
                                __________________
        Michael J. Davis, for relator.
        James A. Whitaker, for respondent.
                                __________________
        DOUGLAS, J.
        {¶ 12} We adopt the board’s findings and conclusion that respondent
violated DR 6-101(A)(3). Clearly, respondent neglected a legal matter entrusted to
him by his client. We are also aware of respondent’s previous disciplinary matter
concerning his failure to comply with requirements set forth in Gov.Bar R. X.
However, after thoroughly considering the evidence in this case, we adopt the
panel’s recommended sanction, in part, rather than the sanction recommended by
the board.
        {¶ 13} When imposing a sanction, we will consider not only the duty
violated, but the lawyer’s mental state, the actual injury caused, and whether
mitigating factors exist. See Dayton Bar Assn. v. Shaman (1997), 

, 

, citing Cuyahoga Cty. Bar Assn. v. Boychuk (1997),

, 

. In this case, we note respondent’s
numerous health problems that apparently existed at the time of the misconduct and
the fact that he has accepted full responsibility for his inattentiveness to his client’s
needs. Respondent has shown remorse for his neglectful behavior, he has agreed




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to provide full restitution to his client, and he has also agreed to undergo treatment
for his depression.
       {¶ 14} Accordingly, respondent is hereby suspended from the practice of
law for a period of one year, with the suspension stayed on the condition that
respondent’s practice be monitored by relator for a period of two years and that
respondent undergo psychological treatment for his depression. Additionally, prior
to discontinuing treatment for his depression, respondent must provide proof to
relator by way of a medical statement that treatment is no longer necessary. Costs
taxed to respondent.
                                                              Judgment accordingly.
       RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ., concur.
       MOYER, C.J., and COOK, J., dissent.
                               __________________
       MOYER, C.J., dissenting.
       {¶ 15} I respectfully dissent from the sanction imposed by the majority. I
would adopt the recommendation of the Board of Commissioners on Grievances
and Discipline and suspend respondent for eighteen months with the final twelve
months of that period stayed on the condition that respondent’s practice be
monitored and that he seek and receive psychological treatment.
       COOK, J., concurs in the foregoing dissenting opinion.
                               __________________




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