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

Ritson, Toledo Bar Assn. v.
127 Ohio St.3d 89, 2010-Ohio-4504. Decided 10/29/2010.
Case Summaries- 275
In December 2006, respondent pleaded guilty to one count of conspiracy to commit mail fraud and wire
fraud in violation of Section 371, Title 18, U.S. Code. In January 2007, he placed his license on inactive
status pending imposition of his federal sentence on October 2008 in which he was sentenced to one year
and one day in federal prison and three years of supervised release and was ordered to pay $3.7 million in
restitution. On 12/4/2008, respondent received a felony interim suspension and the court referred the
matter to relator in 120 Ohio St.3d 1429, 2008-Ohio-6274. From 1997 to 2001, respondent induced
real estate agents and appraisers to purchase membership in American Estate Association (AREA) and
the Nobel Group (Noble) on the false representation that a membership benefit was errors-and-omissions
insurance coverage from Midwest Insurance Company (Midwest). The errors-and-omissions insurance
coverage never existed. Midwest is an offshore entity formed by respondent‘s coconspirator. Midwest
was never licensed to provide insurance in the United States. Respondent mailed or faxed certificates of
membership and certificates of insurance stating that members were covered by a policy issued by
Midwest and sent a monthly newsletter that on occasion identified Midwest as the provider of the errorsand-omissions
policy. He used dues and fees paid by AREA and Noble members to pay the members‘
claims for attorney fees and settlements in installments. On May 31, 2001, respondent voluntarily
stopped participating in the enterprise. The board adopted the panel‘s findings of violations of DR 1-
102(A)(4) and 1-102(A)(6). In aggravation, respondent received a public reprimand in 2002 for filing an
action without the knowledge or consent of the party he claimed to represent; his conduct involves
dishonesty and a selfish motive and a pattern of misconduct of multiple offenses over four and one-half
years; and his caused $3.7 million in losses to victims which has not been repaid as ordered by the
federal court. BCGD Proc.Reg. 10(B)(1)(b), (c), (d), (h). In mitigation, he cooperated in the disciplinary
process and in the federal investigation and prosecution of his coconspirator. Because respondent knew
of the criminal operation after his departure and did not report it, the panel and board refused to consider
as mitigating his voluntary abandonment of the conspiracy. The board recommended permanent
disbarment. The board rejected relator‘s recommendation of an indefinite suspension, the respondent‘s
recommendation of a sanction no greater than two years, and the panel‘s recommendation of an indefinite
suspension. Respondent claims that the board failed to consider significant mitigating evidence and that
his prior discipline should not weigh against him because it was public reprimand. Among other
objections, he noted that the panel and board‘s failure to recognize his positive character-reference letters
and testimony may be due to the fact that the transcript of the panel hearing was not filed until three day
after the board considered the panel report. Under Gov.Bar R.V(6)(J) the panel report ―shall include the
transcript of testimony taken‖ and BCGD Proc.Reg. 9(B)(1) and (2) also contemplates that the transcript
will be filed before the panel report and that the panel report will be submitted to the Secretary at least
seven days prior to the board meeting date.‖ Citing Gov.Bar R. V(11)(D) as to nonprejudicial
irregularity, the court found that any irregularity in the filing of the transcript did not cause any prejudice
to respondent since the panel heard the witnesses first hand and the board may rely on the panel‘s
assessment of credibility, unless other evidence weighs against it and the transcript was filed before the
Board prepared and issued its report. Respondent‘s witnesses and character letters, which are few in
number and are mainly from friends, have some mitigating value but little weight in light of the facts and
aggravating factors. The court found respondent‘s arguments regarding his efforts to rectify
consequences and make restitution presented only half the picture. It is not clear from the record that
his break from the practice of law was voluntary and his reliance on paying 10% of his gross income
toward the restitution order would take more than 616 years. The court rejected his claim that his
continued participation in the conspiracy was not motivated by monetary gain, but by concern for the
victims—if he was concerned he should have taken steps to ensure that no one else was harmed. The
court rejected his claim that his prior discipline of a public reprimand should not weight heavily against
him. Citing Gov.Bar R. V(6)(C), the court noted that ―the mere existence of a prior disciplinary
offense, regardless of the degree of the offense or sanction, is relevant in determining the likelihood of
committing further misconduct.‖ In comparing sanctions in other cases, the court noted that although