A Youngstown attorney with four prior suspensions has been indefinitely suspended from practicing law by the Ohio Supreme Court today.

In a 6-1 per curiam opinion, the Supreme Court indefinitely suspended Dennis A. DiMartino and ruled that he cannot petition for reinstatement for at least two years. The sanction is the fifth against DiMartino, and the Mahoning County Bar Association charged him with violating the rules governing the behavior of Ohio lawyers while the Supreme Court was still considering his fourth report of professional misconduct.

Justice Judith Ann Lanzinger dissented and voted to permanently disbar DiMartino.

Disciplinary Cases Date Back to 1994
DiMartino was first sanctioned with a six-month stayed suspension in 1994 for violating several rules, including failing to respond to client inquiries, and failing to forward a client’s portion of settlement proceeds. In 2007, he was given a one-year stayed suspension for neglecting a client matter.

In 2010, the Court found he engaged in dishonest conduct by falsely representing on an out-of-state marriage application that he had never been married although his Ohio divorce was pending at the time. Because that misconduct occurred while his 2007 stayed suspension was in effect, the Court made its 2007 sanction an actual one-year suspension from practicing and added a six-month suspension that ran concurrently.

In 2016, the Court found he committed several acts of misconduct in two client matters and imposed an indefinite suspension with conditions that if met would allow him to apply for reinstatement. While the fourth misconduct case was pending, the bar association charged him with neglecting a client matter and failing to cooperate in the ensuing disciplinary investigation.

DiMartino Did Not File Suit for Client
In 2014, George M. Joseph paid DiMartino $1,800 to help him secure personal property he believed was wrongfully withheld by a former girlfriend. DiMartino promised to file the necessary court pleadings, but failed to take any action to help his client. He also did not respond to Joseph’s repeated phone calls and office visits, and when Joseph phoned to ask him to refund his fee, DiMartino did not comply.

Joseph filed a grievance with the bar association, and DiMartino initially failed to respond to the bar association’s letters. He later agreed to refund Joseph’s money. During the bar association’s investigation, DiMartino revealed he did not deposit Joseph’s money into a required client trust account, but instead placed the money into his general business account even though he did not complete any work on the case.

Board Recommends Indefinite Suspension
The Board of Professional Conduct, the bar association and DiMartino stipulated that he violated several rules, including failing to act with reasonable diligence in representing a client, and keeping a client reasonably informed about the status of the matter. He also did not follow the requirement of holding a client’s fund in an interest-bearing account separate from the lawyer’s own accounts, and not cooperating with a disciplinary investigation.

When considering a recommended sanction, the board noted DiMartino had been disciplined before and initially failed to cooperate, but that after the bar association filed its complaint, DiMartino cooperated and admitted to most of allegations.

The board also considered that DiMartino lacked a selfish or dishonest motive, made restitution to Joseph, and submitted numerous letters from local judges and attorneys who indicated he was an excellent attorney. It also found he had submitted sufficient evidence that he had been receiving treatment for depression-related mental disorders, and a treating psychologist suggested the grievances against him were directly related to his mental disorders.

The board suggested that the type of misconduct DiMartino committed in his representation of Joseph would typically warrant a suspension, and perhaps a stayed suspension. However, in the context of having been disciplined on four prior occasions, the board recommended an indefinite suspension with additional conditions that ensure he continues his mental health treatment. The Court agreed with the proposal.

“The underlying misconduct here is not uncommon or particularly egregious,” the opinion stated. “Yet because this is DiMartino’s fifth disciplinary case and he committed some of the misconduct while being investigating or prosecuted for his fourth case makes this an extraordinary set of circumstances.”

The Court conditioned any future reinstatement on DiMartino’s compliance with the prior conditions imposed on him in his fourth disciplinary case, his submission of proof that he continued treatment with a qualified health-care professional, complied with his contract with the Ohio Lawyers Assistance Program, and proved he completed continuing legal education in law office management, specifically in the area of client trust accounts.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the opinion.

2016-0537. Mahoning Cty. Bar Assn. v. DiMartino, Slip Opinion No. 2016-Ohio-5665.

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