The Ohio Supreme Court issued partially stayed suspensions to two Ohio lawyers who neglected client matters and made false statements during their disciplinary proceedings.

• Michael J. Cheselka Jr. of Cleveland was suspended for two years with one year stayed with conditions.
• Derek J. Walden of Columbus was suspended for two years with 18 months stayed with conditions.

The Court’s per curiam opinion noted Cheselka’s violations of the rules governing the conduct of Ohio attorneys occurred while representing six clients, including Jojwan Martin.

Martin was convicted of murder in 2008 and sentenced to 18 years to life in prison. The conviction rested largely on the testimony of two eyewitnesses, including Earwin Watters, who was in federal custody and awaiting sentencing for his own crimes at the time of Martin’s trial. In 2011, Watters contacted Martin’s mother, Cynthia Bester, and told her he gave false testimony against Martin under pressure from police and prosecutors. Watters completed an affidavit stating he had been pressured to give false testimony to obtain a lesser sentence for his crimes.

Bester met Cheselka in 2012 and gave him Watters’ affidavit. Cheselka agreed to file a petition for post-conviction relief for Martin for a $10,000 flat fee and $525 for a trial transcript. Bester paid the fee in installments.

Between 2013 and 2016 Cheselka asked Watters to complete four additional affidavits, which the lawyer claimed were necessary to correct defects in Watters’ original affidavit. Cheselka waited until May 2016 to file Martin’s case, nearly three-and-a-half years after meeting with Bester. Cheselka had a one-year deadline to file the petition after he filed Martin’s trial transcript, and he missed the deadline. The trial court asked him to explain why he was delayed, and he stated it was because Watters only provided an affidavit in 2016. Cheselka did not disclose that Watters first came forward in 2011 and presented four additional affidavits. The trial court denied Martin’s petition.

Attorney Lies about Handling of Case
The Office of the Disciplinary Counsel asked Cheselka about the delays in 2017. Cheselka told the disciplinary counsel that Watters did not provide an affidavit in 2011 and there was “never a proper affidavit executed before March of 2016.” At his disciplinary hearing, Cheselka admitted there was no legally significant difference between the first and final affidavits Watters submitted.

The professional conduct board found Cheselka violated several rules based on his handling of Martin’s case, including knowingly making a false statement to the court; making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation.

In addition to neglecting other client matters, Cheselka admitted he did not respond to multiple letters of inquiry based on grievances filed with the disciplinary counsel by three clients.

Board Considers Recommended Sanction, Court Agrees
When the board considers a sanction to recommend to the Court, it considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. 

The board found Cheselka acted with a dishonest and selfish motive, committed multiple offenses, engaged in a pattern of misconduct, failed to cooperate with the disciplinary process, submitted false statements, refused to acknowledge the wrongful nature of his conduct, harmed vulnerable clients, and refused to pay restitution.

The board also found he had no prior discipline during his 15-year legal career, and that he submitted six letters attesting to his good character and reputation. While noting Cheselka committed significant ethical violations, the board found that much of it occurred because of his efforts to “do too much with too little during a discrete period of time when his personal life was unsettled.”

The Court adopted the board’s proposal that Cheselka be suspended for two years, with the second year stayed on conditions that he engage in no further misconduct, pay $2,500 in restitution within 60 days to a woman who paid him $2,500 to represent her relative, submit to an evaluation by the Ohio Lawyers Assistance Program (OLAP), and pay the costs of the disciplinary proceedings. If Cheselka is reinstated to the practice of law, he must show he is following any treatment orders recommended by OLAP, complete six hours of continuing legal education in law-office management, and serve one-year of monitored probation.

Chief Justice Maureen O’Connor and Justices Judith L. French and Patrick F. Fischer joined the per curiam opinion.

Justice Sharon L. Kennedy concurred in part and dissented in part, stating that when the Court imposes conditions on a stay of suspension, conditions on reinstatement to the practice of law, and conditions of probation, those conditions “should work in tandem to protect the public from future misconduct while promoting the respondent’s rehabilitation.” She also maintained that the Court should have imposed specific conditions on Cheselka’s monitored probation, including meeting in person with the monitoring attorney monthly, providing the monitor access to information to verify Cheselka’s compliance with any medical or psychological treatment, and completing a comprehensive plan to ensure he can be reasonably diligent in representing his clients.

Justice R. Patrick DeWine joined Justice Kennedy’s opinion.

Justices Michael P. Donnelly and Melody J. Stewart did not participate in the case.

2018-1764. Disciplinary Counsel v. Cheselka, Slip Opinion No. 2019-Ohio-5286.

Walden filed complaints in all three cases, but failed to respond to his clients’ calls and emails, and did not tell one client that he actually started the lawsuit. Walden subsequently failed to respond to discovery requests from opposing lawyers, and failed to comply with court orders. In response to failure to comply with discovery in one of the cases, Walden told the court his client had not been forthcoming with information, when in reality, he had failed to maintain contact with the client and did not take further action on behalf of the client.

All three of the client cases were dismissed, and Walden did not inform any of them their cases were dismissed.

The disciplinary counsel charged Walden with violating several rules, including failing to act with reasonable diligence in representing a client, keeping clients reasonably informed of their legal matter, and knowingly making a false statement to a court.

The board of professional conduct also found that Walden failed to respond to letters of inquiry sent by the disciplinary counsel and the Columbus Bar Association, which initiated investigations based on grievances submitted by his clients.

Depression Contributed to Misconduct, Lawyer Asserted
Walden testified that he began to suffer depression in 2015 and sought help from OLAP and treatment professionals. The board considered the impact of the depression on Walden’s conduct and considered the sanctions imposed on seven other lawyers who committed comparable misconduct.

Based on its findings, the board recommended that Walden be suspended for two years with 18 months stayed on the condition that he not commit further misconduct.

In a unanimous per curiam opinion, the Court adopted the recommendation and stated that if Walden is reinstated he must demonstrate that he completed an OLAP evaluation and complied with any recommended treatment.

2019-0800. Disciplinary Counsel v. Walden, Slip Opinion No. 2019-Ohio-5287.

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