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

Stafford, Disciplinary Counsel v.
128 Ohio St.3d 446, 2011-Ohio-1484. Decided 4/5/2011.
Case Summaries- 321
Respondent unlawfully obstructed the discovery process before a domestic relations court and failed to fulfill
his duty of candor toward both a trial and appellate court. Respondent was publicly reprimanded in 2000.
Respondent was originally charged in a five-count complaint, but the panel and board recommended
dismissal of Counts III, IV, and V in their entirety, as well several charges in Counts I and II. In Count I,
respondent represented the wife in an 18-month divorce action. The husband was represented by a series of
four attorneys. Respondent failed to respond to discovery requests propounded by the first attorney and used
the line of future attorneys to continue to avoid responding to the discovery requests. Upon questioning by
relator, respondent was uncooperative in establishing what really happened during the divorce action, instead
―erect[ing] a smokescreen‖ to hide his lack of compliance. This conduct was found to have violated DR 1-
102(A)(5) and 1-102(A)(6), and Prof.Cond.R. 3.4(a), 3.4(c), 8.4(d), and 8.4(h). The board
recommended dismissal of Prof.Cond.R. 4.1, 8.4(c), and 3.3(a)(1) on the merits, and Prof.Cond.R.
3.4(d) because the conduct giving rise to this violation occurred before the effective date for the rule. In Count
II, respondent was hired to pursue a negligence action against the client‘s former attorney. The client sought
damages that included attorney‘s fees. At a deposition, the opposing side sought to question the client about
expenses and attorney‘s fees the client had incurred. Respondent objected to this, asserting a blanket
privilege, which was rejected by the presiding judge. Respondent later received both a second and third
request for these fee-related documents, but refused to disclose them both times under attorney-client
privilege. Opposing counsel filed a motion to compel these responses, and respondent responded with a
motion for a protective order. The motion for a protective order was denied by the trial judge and
affirmed on appeal. Opposing counsel then requested the documents a fourth time; respondent did respond
with some documents, but no attorney-fee bills. After over two years of this back-and-forth, respondent
disclosed that no fee bills were ever sent to the client. Respondent‘s law firm then sent copies of the bills
prepared and sent after this disclosure to the judge, who disseminated them to opposing counsel. The
board found respondent violated DR 1-102(A)(5) and 1-102(A)(6) for misleading opposing counsel and
the court by claiming privilege on fee-bills that did not actually exist. As to both counts, respondent
objected that the board lacked clear and convincing evidence to find the violations; relator also objected,
arguing that the board had clear and convincing evidence to find the violations they dismissed, and that he
made a ―good faith‖ legal argument as to Count II. The Court deferred to the board‘s assessment of the
truth and weight of the evidence, noting the thoroughness of the 22-day hearing, the review of the evidence
by both the panel and the board, and the persistence and pattern of respondent‘s deceptive practices during
the discovery processes. The Court found that it was clear from the record that respondent acted in
anything but good faith, and showed a pattern of indifference to the discovery process. The Court
overruled both sides‘ objections and adopted the board‘s findings of fact and conclusions of law in their
entirety. In aggravation, the board found that respondent had a prior disciplinary record which had similarity
to the currently alleged violations, engaged in a pattern of misconduct involving multiple offenses, displayed a
dishonest or selfish motive, and was periodically disrespectful to assistant disciplinary counsel throughout the
21 days of hearings on this matter. BCGD Proc.Reg. 10(B)(1)(a), (b), (c), and (d). In mitigation, the board
noted that respondent behaved ―appropriately‖ over the course of 22 days of intense pressure during the
hearings, but could not say he was cooperative based on his disrespectful attitude to a fellow officer of the
court during the hearing. The board, relying on Wallace (1998), Marsick (1998), and Finneran (1997)
recommended an 18-month suspension with 12 months stayed and monitoring. Both parties objected;
relator asked for an 18- month suspension, no stay and respondent asked that the charges be dismissed.
In an opinion written by Justice Lanzinger, the Court overruled both parties objections, but, upon its
independent review of the evidence, concluded that the appropriate sanction for respondent was an 18-month
suspension with 6 months stayed on the condition that respondent engage in no further misconduct.
Rules Violated: Prof.Cond.R. 3.4(a), 3.4(c), 8.4(d), 8.4(h); DR 1-102(A)(5), 1-102(A)(6)
Aggravation: (a), (b), (c), (d)
Mitigation: NONE
Prior Discipline: YES Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Eighteen-month suspension, six months stayed