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

Trivers, Ohio State Bar Assn. v.
123 Ohio St.3d 436, 2009-Ohio-5285. Decided 10/13/2009.
Case Summaries- 336
Respondent notarized nine documents without personally witnessing the signatures. The board adopted
the panel‘s findings and conclusions, but did not adopt the panel‘s recommended sanction of a one-year
suspension, all stayed on condition of no further violations. Respondent was contacted by a former
employee (Welch) who indicated that an acquaintance (Harper) wanted deeds prepared that would transfer
ownership of several properties to Welch. Respondent met with Welch and Harper in respondent‘s office
on January 26, 2007 and they gave him seven quitclaim deeds that were partially completed. Harper
signed the deeds in respondent‘s presence and gave them to respondent for completion. Respondent gave
them to his secretary and then left the room. When he returned, the deeds were completed. He assumed
the deeds were the same deeds that he had watched Harper sign, but they were not. His secretary, rather
than typing in the missing information, prepared seven new deeds, but Harper left without signing
them. Welch believing that time was of the essence and that he had Harper‘s authorization, signed
Harper‘s name to the deeds. Respondent was not present when Welch signed Harper‘s name and
Welch did not tell him. Respondent notarized the deeds and Welch took them to be filed. Welch,
hoping to exempt the transfers from conveyance fees, had prepared two affidavits and signed Harper‘s
name to them. The affidavits were allegedly notarized by respondent claiming that the properties were
being conveyed to Welch for the purpose of quick resale. Respondent denied signing either document,
but Welch testified that respondent notarized one of the documents and a handwriting expert testified that
the signatures on both affidavits were respondent‘s. On February 6, 2007, two men confronted
respondent. The men were in a property dispute with Harper and they claimed the deeds were forged.
They informed respondent they had initiated a lawsuit against him. Respondent contacted Harper and he,
Welch, and another individual (Lanier) went to Harper‘s home. Harper took control of the meeting and
prepared a power of attorney that, among other things, gave Welch authority to sign Harper‘s name to
any documents necessary to transfer real estate. The document was backdated to January 26, 2007.
Respondent was not certain he had paid attention to the date when he saw the document. Board found
violations of DR 1-102(A)(4) and (6) agreed with the panel‘s recommendation that a violation of DR 1-
102(A)(5) be dismissed. In aggravation, there were multiple violations; participation in a meeting where
a power of attorney was backdated to cover up earlier misconduct; and failure to acknowledge
wrongfulness of conduct. In mitigation, there was no prior disciplinary record; cooperation at hearing;
and a history of community service. Because of respondent‘s repeated acts of fraud and failure to
acknowledge wrongdoing, the Board recommended a suspension for one year, with six months stayed on
condition of no further misconduct. The Supreme Court of Ohio agreed and so ordered a suspension for
one year, with six months stayed on condition of no further misconduct. The court noted that he abused
his notary power on nine document and was present when another fraudulent document was created as a
cover-up. The court noted that his conduct constitutes multiple acts of fraud that distinguish this case
from those in which a public reprimand or fully stayed suspension was imposed for an isolated instance of
notary abuse. Thomas (2001), Heffter (2003), Dougherty (2005), Freedman (2006). Two justices
dissented that a one-year suspension all stayed would be appropriate given his 49 years of practice without
a blemish and that he, believing he was helping made mistakes in notarizing documents that he had not
seen the affiant sign, and the record did not demonstrate any financial loss.
Rules Violated: DR 1-102(A)(4), 1-102(A)(6)
Aggravation: (d), (f), (g)
Mitigation: (a), (d)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: NO Sanction: One-year suspension, 6 months stayed