disciplinary handbook: volume v - Supreme Court - State of Ohio

McCord, Disciplinary Counsel v.
121 Ohio St.3d 497, 2009-Ohio-1517. Decided 4/7/2009.
Case Summaries- 203
Respondent failed to pay an expert witness, failed to pay court-ordered child support, used a misleading
law firm name, and accepted and improperly shared legal fees while on interim suspension. In Count
One, respondent agreed to pay an expert witness to prepare for and attend a deposition. He deposed the
expert, received a bill, and gave the expert a check. Respondent stopped payment on the check the
next day, causing the expert‘s employer to incur bank charges. He claimed that he stopped the check
because he was dissatisfied with the expert‘s preparation and answers. The panel and board found
relator lacked clear and convincing evidence of violations of DR 1-102(A)(4), 1-102(A)(5) and 1-
102(A)(6), recommending dismissal of Count One. The Supreme Court rejected this recommendation,
noting respondent induced the expert to attend the deposition with the promise of compensation and
despite claims of dissatisfaction, used it to cross-examine the expert at trial. The Supreme Court
reinstated Count One, finding violations of DR 1-102(A)(4), 1-102(A)(5) and 1-102(A)(6). In Count
Two, as part of their divorce decree in 1999, respondent and his ex-wife split jointly held shares in a
business. Respondent sold his shares back to the business for $2 million. Thereafter, respondent‘s exwife
moved for modification of the divorce decree to require child support, citing a change in
circumstances. Respondent argued that selling some of his assets did not warrant a change in
circumstances. The trial court ordered respondent to pay $40,000 within 30 days, while the full
amount of arrearage was being determined retroactively to 2000. He did not pay this amount and was
held in contempt. After the arrearage was determined and two mistake-of-fact hearings were held, the
court determined the total owed was $118,789.40. Respondent began a three year appeals process, where
he was held in contempt twice for his dilatory conduct, had his appeals dismissed multiple times, and was
noted by the trial court to have drug the litigation out far beyond what it should have been. The
Supreme Court ordered an interim child support suspension in September 2004. Eventually respondent
settled for $100,000 with his ex-wife. Shortly thereafter, the court terminated respondent‘s interim
suspension, 31 months after it was imposed. Neither the panel nor the board found that respondent‘s
conduct violated DR 1-102(A)(5) and 1-102(A)(6), recommending dismissal of Count Two. The
Supreme Court rejected the recommendation, explaining that while he was entitled to appeal the child
support determination, the contempt orders and findings of the trial court demonstrated respondent
needlessly prolonged the litigation and made concerted efforts to avoid paying court-ordered support.
The Court reinstated Count Two, finding violations of DR 1-102(A)(5) and 1-102(A)(6). In Count
Three, respondent improperly held himself out as a member of ―McCord, Pryor & Associates,‖
―McCord, Pryor, & Associates Co., LPA,‖ and ―McCord & Associates.‖ Respondent and David E.
Pryor, who was killed in a plane crash in 2002, were never law partners, but owned a building together
where each maintained his law practice. They never operated under any recognizable legal structure, kept
their accounts, clients, fees, and expenses separate, and only shared fees when working as co-counsel. At
the hearing, respondent admitted to forming McCord, Pryor & Associates Co., LPA, in 2005, while under
interim suspension, solely to thwart his ex-wife‘s attempts to garnish his bank accounts. Lastly, the facts
show respondent never had any associates under any entity. As to Count Three, the Supreme Court
adopted the board‘s findings of violations of DR 1-102(A)(4), 2-102(B), 2-102(C), and Prof.Cond.R.
7.5.(a), 7.5(d), 8.4(b), 8.4(c), 8.4(d) and 8.4(h). The court noted that subjective intent was not relevant
consideration as these violations. In Count Four, attorney Jackie Lewis-Greer took over Pryor‘s
workers compensation clients after his death. Respondent maintained an IOLTA account where he
deposited workers compensation checks sent to his office on behalf of these clients. He then wrote
checks to disburse the payments: 2/3 to the respective client, 1/6 to Lewis-Greer, and 1/6 to himself.
Over the course of his 31 month interim suspension, respondent paid himself a total of $119,503.27.
Respondent and Lewis-Greer were not associates in a firm and did not have a fee-sharing agreement.
As to Count IV, the Supreme Court adopted the board‘s findings of violations of DR 1-102(A)(6), 2-
102(B), 2-106(A), 2-107(A), and Prof.Cond.R. 1.5(e), 7.5(a), 7.5(d), and 8.4(h). In mitigation, the
board afforded some weight to respondent‘s interim suspension as an imposition of other penalties or
sanctions. But the Supreme Court gave this quasi-mitigating factor no weight. In aggravation, he has a