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

Farrell, Cincinnati Bar Assn. v.
119 Ohio St.3d 529, 2008-Ohio-4540. Decided 9/16/2008.
Case Summaries- 80
Respondent fabricated documents, forged a signature to obtain a loan, and misled another attorney and
his wife. Respondent and his wife, both lawyers, maintained an affluent lifestyle. In 2004, she wanted to
cut back her hours to spend more time with their daughter and suggested they move to smaller quarters.
As an alternative, respondent promised to find more lucrative employment, but instead pretended to do so
by fabricating two detailed letters from two separate companies purportedly offering respondent
positions with high salaries, incentive-pay packages, and health insurance. As a result, his wife
resigned from her job. Respondent planned to increase the income from his practice enough to support
the family, but by March 2006, he needed money. He forged his wife‘s signature on a power of attorney,
lied about the authentication of the signature to another attorney, who notarized the signature, and then
obtained an additional $50,000 on their Fifth Third Bank line of credit, secured by his family‘s home.
The attorney who notarized the signature was publicly reprimanded. See Gottesman, (2007). When his
wife found a bank statement and questioned him about the extension of credit, respondent created three
letters purportedly written on Fifth Third Letterhead by bank executives, all dated May 5, 2006. These
three letters were each addressed to respondent and his wife, each supposedly addressing some issue with
the couple‘s accounts, were at least a page long, and specified in detail how the $75,000 credit limit
resulted from a ―counterfeit.‖ Then to keep his wife in the dark, respondent stopped mail delivery to their
home. When his wife questioned him about the mail, respondent fabricated a letter from the United States
Postal Service dated May 19, 2006, claiming to be from the assistant director of investigations assuring
that their mail had not been held or diverted in the last year. Eventually respondent revealed his
duplicity to his wife; they were divorced in December 2006. The divorce decree required respondent
to repay the line of credit from his funds or from the sale of the marital home. At the urgings of his
wife‘s counsel, respondent self reported his actions to relator. Respondent stipulated that he acted
illegally in procuring a loan based upon false information [see R.C. 2921.13(A)(8)] violating DR 1-
102(A)(3) and acted deceitfully in violation of DR 1-102(A)(4). The board adopted the panel‘s findings
of violations of DR 1-102(A)(3) and (4). The Supreme Court agreed. In aggravation, respondent acted
with self-interest, engaged in a pattern of misconduct, committed multiple offenses, and has not, as of oral
arguments, made restitution by paying off the unauthorized extension of credit. BCGD Proc.Reg.
10(B)(1)(b), (c), (d), and (i). In mitigation, respondent has no prior disciplinary record and cooperated
with the disciplinary process. BCGD Proc.Reg. 10(B)(2)(a) and (e). While he showed remorse for his
actions, respondent did not present mitigating evidence of his good character and reputation or prove that
his depression, a mental disability, contributed to his misconduct. The Court found the mitigating
factors respondent showed were not enough to warrant leniency. The parties submitted a joint proposal
for a one-year suspension, stayed on the condition of respondent‘s continued mental-health treatment.
The board recommended a two-year suspension, with one year stayed on the condition of respondent‘s
continued mental-health treatment. Respondent objected to the board‘s recommendation arguing his
ethical breaches do not warrant such a severe sanction and that any sanction should be completely stayed.
The Court discussed case law that requires an actual suspension from the practice of law when
violations of DR 1- 102(A)(3) and (4) are found. The Supreme Court overruled respondent‘s
objection, agreed with the board‘s recommendations, and so ordered. One justice concurred in judgment
only.
Rules Violated: DR 1-102(A)(3), 1-102(A)(4)
Aggravation: (b), (c), (d), (i)
Mitigation: (a), (e)
Prior Discipline: NO Procedure/ Process Issues: YES Criminal Conduct: NO
Public Official: NO Sanction: Two-year suspension, 12 months stayed